In December, the U.S. Supreme Court heard a second round of arguments in Fisher v. University of Texas, and it once again deliberated over whether universities can officially consider race in their admissions programs. Proponents of race-based preferential treatment, including advocates within academia, argue that such measures fulfill a pro-affirmative action vision of the 14th Amendment, but that claim is merely the latest example of academics resting their advocacy of liberal social policies on scholarship that does not stand up.
The Constitutional Accountability Center, a think tank “dedicated to fulfilling the progressive promise of our Constitution,” urged the Court in Fisher v. UT II to allow colleges and universities to give preferential treatment to racial minorities. A brief signed by six scholars, including Yale law professors Jack Balkin and Bruce Ackerman, argues that the Framers of the 14th Amendment were the originators of affirmative action, having “themselves enacted many such measures.”
This revisionist history dates back to the mid-20th century, when the National Association for the Advancement of Colored People enlisted a corps of scholars to convince the Supreme Court, in Brown v. Board of Education (1954), that the congressional framers of the 14th Amendment intended to prohibit segregation in public schools. Standing in the way of that argument was the inconvenient fact that the 39th Congress had, in fact, provided for segregated public schools in the District of Columbia.
The scholars did their best to revise this history, but the court did not take the bait. Chief Justice Earl Warren wrote in Brown that the historical evidence they presented was “not enough to resolve the problem with which we are faced.” The court instead relied on social science to strike down school segregation.
Years later, Alfred H. Kelly, the constitutional historian who led the effort, admitted that he had distorted history to help the NAACP win the case. In “Clio and the Court: An Illicit Love Affair,” he said that he “manipulated history in the best tradition of American advocacy, carefully marshaling every scrap of evidence in favor of the desired interpretation and carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed possible, or by distorting it when suppression was not possible.”
In Patterson v. McLean Credit Union (1989), Columbia University’s Eric Foner told the court in an amicus brief signed by six other prominent scholars that the 14th Amendment applied not only to the actions of governments, but also to private parties — a remarkable claim from the author of the standard history of the era.
Justice Anthony Kennedy read Mr. Foner’s book and told Justice William Brennan that the brief was “highly misleading.” Justice Kennedy was not the only one. Yale Law professor Randall Kennedy noted that Mr. Foner’s scholarship “leads to conclusions that are politically awkward.”
In its Fisher brief, the Constitutional Accountability Center argues that the “Reconstruction Congress enacted a long list of race-conscious legislation.” But the list is neither long nor very race-conscious. The brief focuses on the Freedmen’s Bureau, established by Congress in 1865, which provided welfare benefits, including education, to the former slaves.
Yet the Freedman’s Bureau was officially called the “Bureau of Refugees, Freedmen, and Abandoned Lands,” and it gave assistance to everyone in the South, regardless of race, who was distressed by the war and its aftermath. The Republican authors of Reconstruction legislation were very careful to write their acts in racially neutral language, precisely because their Democratic opponents accused them of advocating racial preferences.
A case in point was President Andrew Johnson, who vetoed the 1866 Civil Rights Act because he said it discriminated in favor of blacks. The Senate overrode the veto, and Republican Sen. Lyman Trumbull of Illinois denied that the law “discriminates in favor of colored persons.” Its “very object and effect,” he said at the time, was “to prevent discrimination,” and its language “could not more plainly express that object and effect.” As historian Herman Belz concludes in “A New Birth of Freedom,” the Republican framers of Reconstruction legislation believed that using race, “even for the purposes of preventing discrimination, was inconsistent with equality before the law.”
There is a bitter irony here. The framers and ratifiers of the 14th Amendment did not prohibit racial classifications per se. While the 39th Congress did not enact any preferential policies to benefit blacks, it did permit what would later properly be regarded as invidious classifications in schools (and in the marriage laws of some states), and left the door open to the “separate but equal” rule.
The country has come a long way since then. The rallying cry of the civil rights movement until the 1960s was John Marshall Harlan’s dissent in Plessy v. Ferguson (1896) that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” This was what the NAACP argued for in Brown — the organization later abandoned that in favor of color-conscious affirmative action — and this is what Congress adopted in the Civil Rights Act of 1964. It is the position the court, and all colleges and universities, should finally adopt.
• Paul D. Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College and is the director of academic programs at the College’s Kirby Center in Washington, D.C. Hillsdale College is the first American college to prohibit in its charter any discrimination based on race, nationality or sex.
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