On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court in Fisher v. University of Texas, urging the Court to reaffirm that the Fourteenth Amendment permits the sensitive use of race to foster equality in education and to uphold the University of Texas’ use of race as one factor in its holistic admissions policy. The brief is available here. Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars – Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler – demonstrates that the text and history of the Fourteenth Amendment permit government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race.
For the last four decades, the fight over the constitutionality of race-conscious measures to foster equality has been reduced to a sound-bite – whether the Fourteenth Amendment is “color-blind” – with conservatives claiming the mantle of Justice Harlan’s dissent in Plessy v. Ferguson to argue that the Fourteenth Amendment prohibits virtually all use of race by the government. Progressives, all too often, have missed their most powerful rejoinder: the Fourteenth Amendment’s text and history. As our brief explains, 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.
The Constitution is certainly color-blind to a certain extent. In writing the broadest textual guarantee of equality in our Constitution, the Framers of the Fourteenth Amendment very deliberately rejected limitations on the scope of the Equal Protection Clause, sweeping men and women of all races and classes into its coverage. As the text of the Equal Protection Clause makes clear, every person can invoke its universal guarantee of equality. It was precisely for this reason that Justice Harlan declared in Plessy that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But color-blind does not mean blind to reality. Both in writing the text and in enacting race-conscious measures to foster equality, the Framers of the Fourteenth Amendment resoundingly rejected the notion that the government could not take race into account in order to ensure equality of opportunity for all persons regardless of race. Faced with the task of fulfilling President Lincoln’s promise of a “new birth of freedom” and integrating African Americans into the civic life of the nation, the Framers recognized that the Constitution could not be simplistically colorblind.