Online Fisher symposium: Affirmative action is consistent with original meaning

This contribution to our symposium on Fisher v. University of Texas comes from David Gans and Adam Winkler. David Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and co-author of CAC’s brief in Fisher. Adam Winkler is a Professor of Law at UCLA School of Law and the author of Gunfight: The Battle over the Right to Bear Arms in America.

Several of the Justices on the Roberts Court most hostile to race-conscious educational policies, like Antonin Scalia and Clarence Thomas, claim to be originalists. Yet affirmative action is perfectly consistent with the original meaning of the Fourteenth Amendment.  Not only does the Amendment’s text permit government to enact race-conscious policies to fulfill the Constitution’s promise of equality, but the Framers of the Amendment themselves enacted many such measures.  Ever since Regents of the University of California v. Bakke, the conservative attack on affirmative action has depended on turning a blind eye to the text and history of the Fourteenth Amendment.

The Framers of the Fourteenth Amendment clearly did not see their handiwork as outlawing race-conscious efforts to assist African Americans in the transition to their new status as equal citizens.  The same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying “racial preferences.”  The most prominent of these federal race-conscious measures was the Freedmen’s Bureau Act, which established a federal bureaucracy whose explicit mission was to provide assistance to African Americans, including food, clothing, health care, and employment.

Perhaps the most important form of assistance provided by the Freedmen’s Bureau was educational opportunity.  At a time when public education was still at a skeletal state in the South, the Freedmen’s Bureau laid the foundation for Southern public education by creating public schools and colleges for the education of African Americans. Within five years, approximately 3,000 schools had been established, including such illustrious institutions as Howard University. Only with race-conscious efforts by the government in the field of education could African Americans achieve equality.

Opposition to the Freedmen’s Bureau’s racial preferences was, like today’s opposition to affirmative action at places like the University of Texas, phrased in terms of colorblindness. Opponents denounced the Bureau for making “a distinction on account of color between the two races” that rendered blacks “superior” rather than “equal before the law.” The law was, they insisted, “in opposition to the plain spirit” of the Constitution.

Deriding the Freedmen’s Bureau for supporting “one class or color of our people more than one another,” President Andrew Johnson twice exercised his veto over Bureau bills.  In 1866, barely a month after sending the Fourteenth Amendment to the states for ratification, supermajorities in Congress overrode Johnson’s veto of the Act.  In approving race-conscious measures to foster equality, the Framers recognized that “amelioration of the condition of the colored people” – not colorblindness – was the true purpose of the Fourteenth Amendment.  In the Framers’ view, efforts to ensure equality of opportunity and assist African Americans in securing the full measure of freedom promised in the Fourteenth Amendment were consistent with, not contrary to, the new constitutional guarantee of equality.

Congress enacted numerous other race-conscious measures as well, broadly extending assistance to African Americans, whether or not they had been slaves. Congress in 1865 established a bank just for freed slaves and “their descendants.” In 1866, it appropriated funds to help “destitute colored women and children.” In 1867, Congress also enacted race-based legislation to protect the bounty and prize-money due to African-American soldiers who served in the Union Army, even as similar protections were denied to white soldiers. Once again, opponents argued against such laws because they didn’t satisfy what they said was the Constitution’s demand of colorblindness. “[T]here is no reason . . . we should pass a law such as this applicable to colored people and not apply it to white people,” insisted Senator James Wilson Grimes of Iowa.

Opponents of the race-conscious policies of the 1860s apparently subscribed to the same view as Chief Justice John Roberts, who wrote in Parents Involved in Community Schools v. Seattle School District that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Framers of the Fourteenth Amendment and the Reconstruction Congress, however, understood that you can’t make up for a legacy of discrimination by simply declaring a man free and prohibiting future discrimination against him. You must provide avenues of opportunity, especially in the field of education, to guarantee, as the Framers of the Fourteenth Amendment said, “the gulf which separates servitude from freedom is bridged over.”