Using the 14th Amendment to enforce discrimination Skip to content

Using the 14th Amendment to enforce discrimination

“What the right wants is a complete reversal of civil rights legislation going back many years. This has been in the works for a long time.”

4 min read

Historian Brian Clardy says the Supreme Court decision that trashed 45 years of precedent and effectively ended affirmative action in higher education isn’t the first time a conservative majority “flipped the 14th Amendment on its head.”

The nation’s highest court did likewise in 1896 when it upheld Jim Crow segregation laws in the South.

“In both rulings, the court used the 14th Amendment to enforce discrimination,” said the Murray State University history professor. “The amendment was supposed to prevent discrimination.”

Ratified in 1868, the amendment made Blacks citizens and guaranteed them “due process of law” and “equal protection of the laws.”

Writing for the six-justice majority in Students for Fair Admission, Inc. v. President & Fellows of Harvard College and Students for Fair Admission v. University of North Carolina, Chief Justice John Roberts, citing the 14th Amendment’s equal protection clause, essentially argued that college affirmative action programs were discriminatory and no longer needed anyway.

“ ... Roberts paints a picture of a country where all have an equal start, where individuals are responsible for their own fates, where systemic racism not only doesn’t matter but really doesn’t even exist at all,” Robin Abcarian wrote in the Los Angeles Times.

She quoted him: “Eliminating racial discrimination means eliminating all of it.” She then proposed that “Roberts writes, as if centuries of discrimination that favored white people have not produced a legacy that hobbles people of color, especially Black people, today.”

More than a century ago, the court ruled 8-1 in Plessy v. Ferguson that state laws segregating Blacks from whites squared with the 14th Amendment’s equal protection so long as the partitioning was “separate but equal.”

Held in place by violence or the threat of violence against Blacks, the Dixie Jim Crow system — in which Blacks were also disenfranchised — amounted to an American apartheid.

The sole naysayer in Plessy was a Kentuckian, Justice John Marshall Harlan. In his “great dissent,” he argued that “the arbitrary separation of citizens on the basis of race … is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”

Abcairian quoted Justice Ketanji Brown Jackson’s also powerful dissent in the affirmative action decision: “With let-them-eat-cake obliviousness, today the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”


Clardy said the court’s decision in the Harvard and North Carolina cases is the Right’s latest victory in its long war “to completely reverse the gains, the progress made, through civil rights legislation.”

Esquire columnist Charles P. Pierce similarly and aptly wrote that the court’s ruling “is merely a capstone to the general movement conservative project that began in the mid-1970s, when the people running Ronald Reagan’s campaign saw political advantage in allying themselves with both the remnants of American apartheid and the rising political involvement of splinter evangelical Protestantism.”

Never one to mince words, Pierce poured it on: “Now, legal abortion is disappearing, gun control is a dead letter, affirmative action is banned, and the voter suppression championed by Richard Viguerie years ago has blossomed thickly in the state legislatures where Republicans are in control. It has been a long march, but a remarkably successful one, and one of its peculiar triumphs has been the development of a deep bench of conservative lawyers out of which are produced conservative judges, from whom are picked Justices of the United States Supreme Court.”

Pierce pointed out that whites for years have been privately practicing affirmative action to benefit themselves. He wrote about an Irish émigré relative who, after landing a job as a firefighter in Worcester, Mass., wrote home that jobs were available in his adopted hometown. Pierce's grandfather came over and headed for Worcester.

The “cousin got him a job as a freight handler and security guard at the U.S. Steel and Wire plant,’ Pierce explained. “By 1917, he was a patrolman for the Worcester Police Department. By 1930, he was a detective sergeant. That was how he raised his five children. As an historical note, the Worcester Police Department hired its first Black patrolman in 1949. It appointed its first Black captain in 2016.”

Put another way, Pierce added, “an entire generation of Black citizens in Worcester grew up without access to the job my grandfather walked into because he had a cousin on the fire department, the job that was the first push my family received on its way up the ladder. When the Supreme Court handed down its decision in Students for Fair Admissions v. Harvard, it was erroneously stated in a lot of quarters that the decision had eliminated affirmative action.”

The truth is supposed to set you free. Every member of the high court majority who struck down affirmative action must know deep down inside that Jackson spoke the truth when she wrote that deeming race irrelevant in law does not make it so in life.

But elevating hard-right, Only-White-Lives-Matter Republican politics is the raison d'etre of Roberts, and Associate Justices Alito, Coney Barrett, Gorsuch, Kavanagh, and Thomas.

Donald Trump, who ran the two most overtly racist presidential campaigns since George Wallace in 1968 — and is starting on a third one — named Coney Barrett, Gorsuch, and Kavanaugh to the court. Think he didn’t make them promise they were MAGA true believers before he nominated them? If you do, see me about some oceanfront property in western Kentucky that I’ll sell you cheap.

After Coney Barrett, Gorsuch, and Kavanaugh comprised half of the majority in the Harvard and North Carolina cases, Trump lauded them as “gold” and praised the ruling as “A great day for America.”

Wrote Pierce in another column: "The 14th Amendment is now magically and completely converted into a vehicle for white victimhood. Justice Clarence Thomas gets to take his twisted self-loathing out for another walk. And affirmative action is now as dead as Roger Taney because, you know, colorblind. By deciding Students For Fair Admissions v. Harvard, the carefully manufactured conservative majority on the Supreme Court kept faith with conservatism’s multi-decade alliance with the remnants of American apartheid. As Garrett Epps pointed out on the electric Twitter machine, when Roberts was just starting out, he tried to get Ronald Reagan to abolish affirmative action by executive order. Roberts has been in this for the long haul.”

The notion that the Students for Fair Admission and the six justices really aim for a “colorblind” society is as absurd and as deliberately disingenuous as the idea that “states’ rights” and not slavery was the root cause of the Civil War.

Clardy agrees. “What the right wants is a complete reversal of civil rights legislation going back many years. This has been in the works for a long time.”


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Berry Craig

Berry Craig is a professor emeritus of history at West KY Community College, and an author of seven books and co-author of two more. (Read the rest on the Contributors page.)

Arlington, KY