The Equal Protection Clause

As we mentioned in the joint statement, one of the most contentious questions under the Equal Protection Clause has been whether programs known as “affirmative action” or “racial preferences” are constitutional. Racial preference programs give a leg up to blacks, Hispanics, and Native Americans in college admissions, employment, and winning government contracts. They have been constitutionally contentious ever since they began in the 1960s, and many people believe that the Supreme Court is poised to end these programs in the near future.

Although well-intended to atone for past racial discrimination and to spread opportunity more equally throughout society, many people believe that preference programs are morally questionable, have bred racial tensions, and stigmatize the people they are intended to help. One might ask what relevance moral and empirical arguments like these have to the meaning of the Equal Protection Clause, but arguments like these have influenced the Supreme Court’s decisions in this area much more than arguments over the original understanding of the Equal Protection Clause (on which historians disagree). Indeed, new empirical arguments are the reason why many people believe racial preference programs may not survive court challenges for much longer.

First, some people believe that the individuals who take opportunities on account of racial preferences are actually wealthier than those who are displaced. This has undermined the notion that racial preferences spread opportunity more equally throughout society. Second, it has become increasingly clear that the racial group that suffers the most from many preference programs—especially those in college admissions—is not whites, but Asians. Because Asians, too, suffered from a great deal of past discrimination in this county, this development has weakened the notion that preference programs atone for past discrimination. Finally, there are now sophisticated empirical studies that suggest that preference programs actually constrict opportunities for their intended beneficiaries; some studies, for example, suggest that there are fewer black lawyers today because of preferences for blacks in law school admissions. Other scholars disagree with these studies, but the studies have nonetheless raised many questions about whether preference programs accomplish even their most basic purpose of expanding opportunities for blacks, Hispanics, and Native Americans.

Some proponents of racial preferences have advocated so-called “race neutral” affirmative action in the event the Supreme Court eventually prohibits racial preferences.  Indeed, some universities have turned to race-neutral affirmative action after lower courts struck down their preference programs. Under race-neutral affirmative action, governments use preferences for characteristics that correlate with race instead of race itself to try to increase opportunities for blacks, Hispanics, and Native Americans. Thus, for example, some state universities give preferences to applicants who live in certain areas that are heavily comprised by those racial groups (but whites or Asians who live in these areas receive the preferences, too). Many people assume these programs are constitutional because they do not rely on racial classifications but on geographic classifications. But the Supreme Court has said in many cases that non-racial classifications that are motivated by racial discrimination and have the effect of racial discrimination are subjected to the same heightened scrutiny as racial classifications. Thus, it is not clear whether race-neutral affirmative action will be any more constitutional than racial preference programs.

What is clear is that this will be an area of very contentious litigation for the foreseeable future.

At the core of the debate on the Equal Protection Clause’s application to race is the question of symmetry. Some people oppose race-conscious measures designed to address racial discrimination and inequality. For example, some individuals oppose efforts by schools and employers to consider race with the goal of enrolling or hiring more minority applicants. In arguing that these measures violate the Fourteenth Amendment, opponents equate such efforts with invidious discrimination rooted in belief in racial inferiority and superiority.

In 1978, in  Regents of the University of California v. Bakke, the Supreme Court found that race-conscious measures designed to address the effects of discrimination were as presumptively unconstitutional as was discrimination rooted in racial antipathy and the belief in racial inferiority. The Court further recognized what it called “societal discrimination”, i.e., a category of discrimination, however lamentable, for which no one was responsible and for which there is no remedy. Before Bakke, racial equality efforts had been justified based on a general imperative to overcome the lasting effects of historic racial discrimination and subordination. Bakke and subsequent cases effectively limited this remedial justification imperative to individual cases of proven discrimination. It threw the remedial rationale under the bus, leaving vast manifestations of racial inequality beyond the reach of law.

Still, Justice Powell proffered an alternative ground for race-conscious admissions by colleges and universities. His opinion in Bakke recognizing “diversity” as a compelling governmental interest bridged a divided Court. It rested diversity in universities’ First Amendment-based interest in academic freedom, rather than in the Fourteenth Amendment Equal Protection-based interest of African Americans and other people of color in educational opportunity at institutions from which they had long been excluded. In spite of the Fourteenth Amendment’s original purposes—and notwithstanding continued racial inequality in higher education—a majority of the Bakke Court held that the Amendment had no special meaning for African Americans.

In the years following Bakke, students of color were admitted to selective colleges and universities in modest numbers, even if Bakke’s viability was under continued criticism and attack in social discourse as well as in the courts. In 2003, Grutter v. Bollinger upheld a race-conscious admissions program at a public law school. The Grutter majority garnered 5 votes for Powell’s diversity rationale, mooting a long running argument that it had never commanded five votes. Still, as diversity opponents have sensed that the Court has become more conservative, they have refused to accept what should be settled law and have instead continued to bring challenges to Bakke/Grutter. Anti-diversity advocates are no doubt encouraged by the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated voluntary, and by their nature, race-conscious, public school desegregation efforts in Seattle and in Louisville.

There is no question that the Fourteenth Amendment, by its own terms, applies to all people. Still, there is great irony in the fact that many of the effects of systemic and intergenerational racial discrimination, especially as visited upon African Americans, remain intact, even in “The Age of Obama.” The Court has placed them beyond the reach of law. There is further irony in the fact that long after the Court has abandoned Brown’s imperative, even voluntary desegregation efforts have been found to constitute racial discrimination.

At a Harvard Law School symposium some years ago commemorating the occasion of the one hundredth anniversary of Plessy v. Ferguson (1896), I struggled to articulate the duality of the Fourteenth Amendment: its original purpose and imperative was undeniably directed at remedying discrimination against African Americans. And yet the Amendment was meant to protect all from unequal treatment under the law. One purpose does not negate the other. As Judge Guido Calabresi put it on that occasion, there are two Fourteenth Amendments: the Fourteenth Amendment for all, and the Fourteenth Amendment that holds the Thirteenth Amendment inside of it. That is not to say that the Thirteenth Amendment does not apply to all; it bans slavery and involuntary servitude from existing anywhere within the United States. But that part of the Thirteenth Amendment that aimed to wipe away the badges and incidents of slavery had significance for one people. The Equal Protection Clause’s duality is evidenced by the fact that the Framers of the Fourteenth Amendment adopted all manners of race-conscious measures specifically for black Americans: the Freedman’s Bureau, schools, hospitals, banks, and land. The notion that mere race-consciousness, whatever its intent, was inconsistent with the Fourteenth Amendment is unsupported by history. 

Lest we think that these facts have no contemporary significance, it bears remembrance that legalized subordination of African Americans did not end with the Thirteenth Amendment in 1865, or even in 1868 with the adoption of the Fourteenth Amendment. It was a continuum which only began to end with Brown v. Board of Education in 1954 and the Civil Rights Era legislation and jurisprudence of the 1960s. Bakke’s assault on the remedial imperative began a mere ten years after the beginning of the end of the subordination continuum. Even today, since the involuntary arrival of African Americans began in what is now the United States, nine out of every ten of their days have been spent in slavery and Jim Crow segregation, as have eight of every ten days since the adoption of the Declaration of Independence. Jurisprudence and discourse that disembodies present day racial inequality from our history of legally imposed racial subordination is either tone deaf to history or intellectually dishonest, as is the notion that there is moral or legal symmetry between efforts to address the effects of that history, on the one hand, and invidious discrimination, on the other. The Fourteenth Amendment continues to call to us. Even while it has other, no less important, work to do, it its original work is unfinished.