The Constitution, Reconstruction, and Race-Conscious Admissions
by Pauline Alarcon
A number of people in the United States agree that racial diversity in schools is an important factor in young people’s education. But there has been deep disagreement about how to achieve such diversity.
One method has been race-based college admissions. Generally called affirmative action, this method promotes admissions for people from certain historically disadvantaged racial and ethnic groups. Some Americans believe it is fair to take measures to advance traditionally excluded groups in society, including affirmative action. Others say that affirmative action is itself an unfair form of discrimination, and therefore oppose affirmative action.
In June of 2023, Pew Research conducted a nationwide survey on affirmative action in college admissions. It showed that half of adult Americans disapproved of affirmative action. One-third of Americans approved of it. The remaining people surveyed were not sure if they approved or disapproved.
Later in June 2023, the Supreme Court of the United States struck down race-based admissions at colleges and universities nationwide. In Students for Fair Admissions v. President and Fellows of Harvard College, the court decided that race-based admissions programs at both Harvard College (a private university) and the University of North Carolina (UNC) (a state school) were unconstitutional. Specifically, the court decided that the programs violated the equal protection clause of the 14th Amendment.
To understand the legal and social impacts of these cases, we need to look back in time to the Reconstruction era.
The Impact of Reconstruction
In 1863, President Abraham Lincoln issued the Emancipation Proclamation. It was during the American Civil War. This pivotal document changed the legal status of more than 3.5 million Black people in the Confederate states from enslaved to free. But the fight for racial equality was far from over.
When the Civil War ended in 1865, America entered a period known as Reconstruction. During this time, the U.S. government made efforts to repair — or reconstruct — the nation. It sought to amend the Constitution to counteract the political, social, and economic legacies of slavery and the aftermath of the Civil War.
Congress passed the 13th, 14th, and 15th Amendments to the U.S. Constitution, sometimes called the Reconstruction Amendments. The 13th Amendment abolished slavery. The 14th Amendment granted citizenship to anyone born in the United States. And the 15th Amendment protected against racial discrimination in voting.
The 14th Amendment also contained the equal protection clause. It states that “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” It is meant to prevent state governments from denying their citizens the right to be treated equally under the law.
During the Reconstruction era, the U.S. government used its lawmaking and executive powers to further the goal of equal rights for every person regardless of race. The government established the Bureau of Refugees, Freedmen, and Abandoned Lands (the “Freedmen’s Bureau) in the South. This agency assisted formerly enslaved Black people. It also assisted Southern white people who lost their homes and jobs in the war (the “refugees”).
The Freedmen’s Bureau worked to help set up a system of fair wages and working conditions for formerly enslaved people. It also created a formal education system for Black people, legally recognized marriages of Black people, and helped reunite Black families. By 1870, more than 1,000 schools for Black students were built in the South.
As we will see, the Reconstruction-era understanding of the equal protection clause was particularly important to the 2023 case.
The Harvard and UNC Cases
The case that ended with the Supreme Court’s 2023 decision began nine years earlier. In 2014, a nonprofit program called Students for Fair Admissions (SFFA) sued Harvard and UNC. SFFA argued that Harvard’s and UNC’s race-conscious admissions programs violated the equal protection clause of the 14th Amendment. Specifically, affirmative action led to unfair admission results for Asian American applicants.
The Supreme Court consolidated, or joined together, the two cases against the universities into one decision. This is common when the Supreme Court has to reconcile more than one decision on similar legal issues.
SFFA presented evidence that Asian American applicants were disfavored in the admissions process. For example, Harvard and UNC gave otherwise highly qualified Asian American applicants lower “personal rating” scores. These scores are based on admissions reviewers’ personal opinions, or what a Harvard dean of admissions once called a “hunch.”
In response, Harvard and UNC argued that their race-conscious admissions programs lead to measurable benefits for Black applicants. Black students who benefit from affirmative action tend to have higher incomes after college. In addition, racial diversity on campus prepares all graduates to live in a pluralistic society. Through affirmative action, these schools said they produce new knowledge from diverse outlooks.
Harvard and UNC relied on the Supreme Court case Grutter v. Bollinger (2003). In Grutter, the Supreme Court held that diversity on campus is a compelling (or extremely strong) government interest. A university may consider an applicant’s race as a “plus factor” to encourage diversity.
Harvard and UNC argued that their race-conscious admissions programs properly considered race as a “plus factor.” Race-conscious admissions increased enrollment for many historically excluded groups, including Black, Hispanic, and Native American students.
The Court’s Opinion and Reconstruction
Chief Justice John Roberts wrote the majority opinion, joined by five other justices. The majority held that Harvard’s and UNC’s race-conscious admissions programs violated the equal protection clause by treating college applicants differently based on their race.
The court did not explicitly overrule the Grutter case. However, the court stated that Harvard and UNC did not clearly show why diversity on their campuses was a compelling interest. Also, the court said the programs did not clearly show when they would no longer be necessary.
To explain the reasoning behind the court’s decision, the majority’s opinion looked back to the history of the Reconstruction era. The court quoted from a congressional session in 1866 that explained the equal protection clause. The clause represented a “foundational principle” of “absolute equality of all citizens of the United States.”
The history of Reconstruction, the majority said, demanded that everyone be treated equally, regardless of their race. Therefore, the decision in Students for Fair Admissions demands that colleges and universities treat all applicants equally, regardless of their race.
The court described how the country failed to live up to the principle of racial equality after Reconstruction. Only in 1954 did the Supreme Court decide that racially segregated schools violated the equal protection clause in Brown v. Board of Education. “In the decades that followed [Brown v. Board of Education],” Chief Justice Roberts wrote, “this Court continued to vindicate the Constitution’s pledge of racial equality.”
In a notable passage, Roberts explained that race is not necessarily irrelevant to college admissions. Even without affirmative action, college applicants are not prohibited from describing “how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
In a concurring opinion, Justice Clarence Thomas also discussed the Freedmen’s Bureau. According to Justice Thomas, the federal government created the Freedmen’s Bureau to serve “newly freed slaves alongside white refugees.” Thus, the Freedmen’s Bureau did not benefit Black people “exclusively.” It was meant to be “colorblind.”
Dissenting Views Based on Reconstruction
Justice Sonia Sotomayor and Justice Ketanji Brown Jackson wrote dissenting opinions and joined each other’s opinions. Justice Elena Kagan joined both of them, as well. Justice Sotomayor wrote that this ruling “rolls back decades of precedent and momentous progress.” To explain their reasoning, the dissenting justices also looked to the history of Reconstruction.
The dissenting justices interpreted the history of the Reconstruction era differently than the majority. They argued that Reconstruction illustrated that the federal government has made special efforts to protect traditionally excluded groups. The policies of Reconstruction, the dissenters argued, are precedent for policies of affirmative action. Both Reconstruction laws and affirmative action specifically addressed the needs of people who had experienced oppression.
The dissenting justices also quoted from a congressional session in 1866 to explain the 14th Amendment. A key goal was to “protect the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.”
The dissenting justices emphasized that education was fundamental to the Reconstruction program. “Black people,” Sotomayor wrote, “were the targeted beneficiaries of the [Freedmen’s] Bureau’s programs, especially when it came to investments in education in the wake of the Civil War.” For example, the Freedmen’s Bureau provided land and funding to establish many of America’s historically Black colleges and universities (HBCUs).
The dissenting justices critiqued the court’s decision for imposing a “superficial rule of colorblindness.” The dissenters emphasized that simply “[ignoring] race will not equalize a society that is racially unequal” and that true “[equality] recognizes acknowledgment of inequality.”
The Students for Fair Admissions case reflects a long-standing tension in the nation’s history on the true meaning of equality. Race-conscious admissions has been an important part of an ongoing conversation. As colleges and universities continue to seek diversity, the conversation will very likely continue in the years to come.
Questions for Discussion
1. How did the majority and dissenting opinions use the legacy of Reconstruction differently? Who do you think had the better argument and why?
2. One proposal for increasing diversity on campuses has been for colleges and universities to give “plus factors” to qualified students of low-income households. Do you think this would address the same historical issues as race-conscious admissions? Why or why not?
3. The Supreme Court left open the possibility that colleges and universities may ask applicants to show “how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Is this approach different than race-conscious admissions? Might there be potential for abuse of this standard? Explain your answer with examples from the majority and dissenting opinions.
This article was originally published in BRIA, the quarterly curricular magazine of Teach Democracy (formerly Constitutional Rights Foundation). Click here for a high-school classroom activity on this article, as well as a source list for the article. You can also subscribe to BRIA for free here.
