Does the Constitution Allow Affirmative Action at Public Universities?

In early October the U.S. Supreme Court will hear oral argument in the case of Fisher v. University of Texas at Austin. At issue is whether the university's use of race in determining school admissions violates the Equal Protection Clause of the 14th Amendment, which declares that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Last week, the Constitutional Accountability Center, a left-leaning law firm and think tank, filed a friend of the court brief in the case urging the justices to allow the university's admissions policy to stand. What's notable here is that the CAC brief makes an originalist argument in defense of affirmative action. The brief marshals an array of historical evidence to show that the congressional Republicans who framed the 14th Amendment in 1868 also supported various race-conscious federal laws and programs aimed at assisting the recently freed slaves, such as the Freedmen's Bureau. Thus, as the CAC brief asserts, "the text and history of the Fourteenth Amendment permit governments to enact race-conscious measures to ensure equality of opportunity."

It's a very interesting document full of fascinating historical information. But does it make a persuasive argument about the original meaning of the Constitution? Perhaps not. Writing at the Volokh Conspiracy, George Mason University law professor David Bernstein highlights the brief's originalist shortcomings. Bernstein writes:

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation.  None of the legislation in question grants authority to states to engage in race-conscious legislation.  In Fisher the underlying issue is whether a state university may engage in race-conscious admissions.  The authors not only don't defend, but don't even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

Indeed, given what we know about the historical events that produced the 14th Amendment, there's some reason to think that while the Republicans of the 39th Congress trusted federal legislators to craft non-harmful race-conscious laws, they may not have been so eager to allow the former Confederate states to enjoy that same power, thus they introduced the strict equal protection language limiting state action.

Since the CAC has produced some very valuable originalist work in previous Supreme Court cases, particularly McDonald v. Chicago, I'll be very interested to see how the group responds to Bernstein's criticisms in this case.