Affirmative Action and the Fourteenth Amendment

      Supreme Court justices were hopelessly divided after the first round of arguments in the landmark school desegregation case Brown v. Board of Education (1954). To gather more information — and buy some time — they asked opposing attorneys for a new round of briefs and arguments on what the authors of the post-Civil War Fourteenth Amendment thought about the issue.
      Despite the extensive research and argument, Chief Justice Earl Warren wrote in the eventual opinion that the history was “inconclusive” on the issue before the justices. So Warren went on to analyze the constitutionality of “separate but equal” in the context of public education in the United States in the mid-twentieth century.
      The 21st century Court is now preparing to hear a new case in October on the issue of race-conscious affirmative action policies in higher education (Fisher v. University of Texas). The justices have been presented stacks and stacks of friend-of-the-court briefs addressing the issues from every possible perspective, including historical. Once again, the history is ambiguous and to some extent inconclusive. But those justices – think Antonin Scalia and Clarence Thomas – who view original meaning as the touchstone of constitutional interpretation will be hard pressed to find a complete prohibition on governmental use of racial preferences in the history of the Fourteenth Amendment.
      Inconveniently for Scalia’s and Thomas’s declared opposition to racial preferences, the same Congress that approved the Fourteenth Amendment in June 1866 also voted one month later to extend the life of a government agency set up to provide special aid to newly freed slaves. The Freedmen’s Bureau provided clothing, food, and other necessities to former slaves as well as to white Union sympathizers who had fled the South during the Civil War.
      Congress originally created the bureau in March 1865 with Abraham Lincoln in the White House and the Civil War about to end. As set out in a brief filed by lawyers with the Constitutional Accountability Project, a progressive Washington advocacy group, the law directed the bureau to provide open-ended assistance to the former slaves but aid to “loyal refugees” only to the extent “necessary to enable them . . . to become self-supporting citizens.” The law also authorized the agency to acquire property abandoned in the South for schools for the former slaves.
      Congress originally established the Freedmen’s Bureau for one year. In 1866, with the former southerner Andrew Johnson in the White House, Congress voted to extend the bureau’s life for two years. Johnson vetoed the measure, but Congress overrode the veto in July 1866 by votes of 104-33 in the House and 33-12 in the Senate — substantially more than the two-thirds majority needed.
      Opponents in Congress specifically criticized the preferential treatment for the freed slaves. One member said the law treated the freedmen not as equal but superior, “in opposition to the plain spirit of the Constitution.” In vetoing the bill, Johnson criticized it as “class legislation.” Supporters in Congress answered the criticism by saying the preferential aid was needed to “break down discrimination between whites and blacks.”
      The bureau was hampered by opposition by unreconstructed southerners and was eventually allowed to fade out of existence after 1871 as northerners’ support for reconstruction faded. Opponents of affirmative action today can cite that history to argue that the bureau was viewed as a temporary measure that would no longer be needed once former slaves got on their feet.
      Even at the time, however, some supporters recognized the need for longer term measures. “The effects of ages of slavery are not to be removed in a day, by a mere legislative vote,” the Rev. William Weston Patton, a white abolitionist, said in a speech in 1877 at Howard University, the historically black college established by the Freedmen’s Bureau and named for its first commissioner, Army general Oliver Howard.
      Supporters of Reconstruction could not have imagined the new roadblocks that the country would erect to true equality for African Americans. The federal government turned a blind eye as legal, political, and social barriers went up, in the North as well as in the South. The Supreme Court played its ignominious part by striking down the law prohibiting racial discrimination in public accommodations and upholding racial segregation in public education on the legal fiction of separate but equal.
      The march toward real racial equality resumed with Brown and continued with civil rights legislation in the 1960s and with the growth of affirmative action policies in the 1970s aimed at improving African Americans’ opportunities in higher education.
      Those admissions policies met resistance immediately. Twice, the court has narrowly approved limited consideration of race by state universities: Regents v. Bakke (1978); Grutter v. Bollinger (2003). In casting the decisive vote in Grutter, however, Justice Sandra Day O’Connor voiced the expectation that racial preferences would no longer be needed in another 25 years.
      Impatience is no basis for constitutional adjudication, however. The Roberts Court should carefully consider the role of elite public colleges and universities in the United States today and the actual impact of race-conscious admissions on opportunities for racial and ethnic minorities and on the legitimate goal of student diversity. In weighing that evidence, the justices should recognize that the constitutional insistence on equal protection was not written to prevent the government from enacting policies to break down the barriers to actual equality.