Race-Conscious Educational Policies Versus a “Color-Blind Constitution”: A Historical Perspective

This essay has one major theme, to examine a central argument in contemporary desegregation and affirmative action lawsuits, including the Louisville and Seattle school desegregation cases just decided by the U.S. Supreme Court on June 28, 2007 (Parents Involved, 2007).1 The central question is whether the use of racial classifications to achieve school desegregation and diversity violates the Fourteenth Amendment. Along with contemporary constitutional lawyers who argue against race-conscious educational policy, some historians also contend that the Reconstruction Congress created a new order of color-blind constitutionalism that generally forbids the use of racial classifications to implement school desegregation and affirmative action programs.2 Even as attorneys for the petitioners in the Louisville and Seattle cases concede that school districts have an unquestioned interest in achieving racially diverse schools, they maintain that such objectives, outside of a remedial context, can be pursued only through race-neutral policies and programs. The argument that the U.S. Constitution is color blind has found support among several Supreme Court justices and also among some historians who contend, as does constitutional historian Paul Moreno, that the Reconstruction Congress “believed there should be one class of American citizenship, without racial classification, whether malignant or benign” (Moreno, 1995, pp. 295–298). Moreno maintains that the 1866 Civil Rights Act and the Fourteenth Amendment “lend no support to the argument that the Reconstruction Congress planned for and implemented race-conscious legislation in order to benefit persons because of their color” (p. 300). Hence, such scholars conclude that attempts to use legislative history to justify race-conscious educational policies run afoul of the color-blind intent of the Fourteenth Amendment. A strict legislative history of the Fourteenth Amendment, according to Moreno, “would have to conclude that racial neutrality was the goal of the Reconstruction congress” (p. 303). Attorneys and friends of the respondents, as well as other historians of the Reconstruction era, counter this position. A brief filed by historians on behalf of the respondents maintains that the petitioners’ cases for relief rest on a deep misunderstanding of the original intent of the Reconstruction Congress. In their judgment, contemporary race-conscious policies are fully consistent with the original intent of the Fourteenth Amendment. “Indeed,” they contend, “the same Congress that passed the Fourteenth Amendment enacted a wide range of race-conscious programs and funded deliberate efforts to integrate schools.”3 In support of the race-conscious theory, historians cite the fact that the Reconstruction Congress funded school desegregation efforts, raised no objection when Louisiana and South Carolina wrote school integration clauses into their state constitutions, and expressed no opposition when states and localities took voluntary steps to achieve racially desegregated schools. The historians’ brief also draws upon the fact that some members of the Reconstruction Congress favored and introduced bills demanding racially mixed schooling. Senator Charles Sumner of Massachusetts and other “radical Republicans,” for example, proposed federal legislation designed to establish racially mixed public schools (McPherson, 1965; Trefousse, 1997). The arguments that the Reconstruction Congress sanctioned some race-conscious programs and funded efforts to achieve racially mixed schooling, however suggestive, remain inconclusive as to whether Reconstruction legislation was designed to permit racial classifications by agencies of the government. The larger academy of historians have emphasized, as Paul Moreno points out, that the Reconstruction Congress was under the control of the moderate-conservative wing of the Republican Party and their