Does Grutter violate the Fourteenth Amendment?

Ever since the Grutter decision was issued, there has been a worm of doubt in the back of my mind as to whether my criticisms of it were on completely solid ground. Over and over I have described Grutter as a revolutionary attack on America’s belief in non-discrimination and equality under the law, a principle embodied in the Fourteenth Amendment’s command that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” At the same time, I have been troubled by the thought that the notion of equality under the law that I am defending is itself largely a product of modern Supreme Court decisions such as Brown v. Board of Education that I disapprove of because they expanded the Fourteenth Amendment beyond its proper scope. As is well known, the framers of the Fourteenth Amendment did not define “equal protection of the laws” as outlawing racially segregated schools. It was only the modern civil rights movement, with its outrageous judicial re-writing of the Fourteenth Amendment and its improper expansion of federal power over the states, that mandated systematic non-discrimination throughout American life, and particularly in the schools, making such non-discrimination the sacred heart of the American creed. I have asked myself, therefore, is there something contradictory, even hypocritical, in my protests against Grutter for violating a liberal system that I myself don’t approve? To put the question differently, if we were living under a constitutional system that I could support, a system in which the Fourteenth Amendment had not been turned into an instrument of tyranny over the states, wouldn’t a state have the perfect right to practice anti-white racial preferences in school admissions?

It occurs to me now that the answer to these questions is no, and that Grutter does indeed violate the original Fourteenth Amendment, not just the later, illegitimate expansions of the Fourteenth Amendment. The following thoughts are tentative, however, and I welcome any critical response.

Under the Fourteenth Amendment as narrowly interpreted by the Supreme Court in Plessy v. Ferguson, racial segregation in railway passenger cars was permitted on the basis of the principle of “separate but equal.” This implied that the treatment given Negroes had to be—at least in theory—equal to the treatment given whites in order to be Constitutionally acceptable. The Court wrote in Plessy:

The [plaintiff’s] argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

Plessy held that the Fourteenth Amendment did not outlaw social separation. As the Court put it, the races were socially distinct; whites had strong feelings to keep it that way; and the Constitution had no power to interfere in that. As long as Negroes had accessibility to railway cars, or to other basic facilities such as public schools, and thus were not being deprived of a basic right, racial segregation with regard to those facilities was permissible.

However, by Plessy’s own reasoning, I think that a school that admitted both races, while using radically different admissions criteria for each race, would have been seen as violating equal protection of the laws. The “social separation” argument would now be moot because both races are being admitted to the same school. Now it becomes purely a matter of giving more points to one group because of its race.

To illustrate this, imagine that blacks’ average test scores were far higher than those of whites, and that an integrated state school, in order to keep down the number of blacks and increase the number of whites, systematically admitted whites with lower scores while automatically rejecting all blacks with those same lower scores. Here there could be no claim of separate but equal; it would be together and unequal. And I can’t see the Plessy court okaying such a system.

The upshot is that grossly unequal admissions criteria applied to students of different races by the same state school is a denial of the equal protection of the laws. Therefore Grutter is not just a violation of the modern liberal regime and its illegitimate enlargement of the Fourteenth Amendment. It is a violation of the Fourteenth Amendment itself.

Posted by Lawrence Auster at August 24, 2003 02:14 PM | Send


Robert Bork once wrote a rather bizarre article for National Review (entitled “The Case Against Political Judging”, in the December 8, 1989, issue), in which he discussed the Bakke decision and the 14th amendment. He argued that the “original understanding” of the 14th amendment would have been that it prohibited discrimination against blacks. Thus, to interpret it as a prohibition of all racial discrimination, whether against whites or blacks, was an “abstraction” or “generalization” that went beyond the original understanding of the amendment. Thus, Bork concluded that the anti-white medical school admissions practices in the Bakke case did NOT violate the 14th amendment.

I my (unpublished) letter to the editor of National Review, I replied that any interpretation of an amendment is essentially a rewriting of the amendment in greater detail. Bork’s interpretation rephrases the amendment to read that no discrimination against blacks shall be permitted, but discrimination against whites shall be permitted. My point was that such a wording would never have gained ratification in the 1860’s. My interpretation, on the contrary, would rephrase the amendment to read that no discrimination (with respect to certain fundamental rights of life, liberty, property, etc.) on the basis of any racial classification, white or black, shall be permitted. My rephrasing could have been ratified in the 1860’s; Bork’s could not have. Thus, his bizarre application of the doctrine of “original understanding” is a subversion of the representative-democratic process of amendment.

The conservative practice in recent decades has moved from “strict construction” of the actual words of a law to refining our understanding of the law by asking what the “original intent” or (as Bork prefers) the “original understanding” of the law was. Conservatism requires prudent restraints on arbitrary powers. In order to restrain how much a judge can use an “original understanding” approach to produce a different interpretation than would arise from strict construction of the actual words, I propose the simple test: Would this interpretation, had it been written explicitly into the original statute or amendment or article, have gained ratification at the original time of its adoption?

Returning to the subject of the Grutter decision: Would the state legislatures of the 1860’s have ratified a 14th amendment that explicitly permitted such a discrimination against white students?

Posted by: Clark Coleman on August 24, 2003 10:32 PM

Mr. Coleman offers an excellent, perfectly logical test of legislative intent, one that I’ve never heard before.

(By the way, that same issue of National Review had my first article in National Review, on New York State’s Curriculum of Inclusion. To my knowledge it was the first article in any national magazine that criticized multiculturalism.)

Posted by: Lawrence Auster on August 25, 2003 12:27 AM

I believe that the Constitution allows racial discrimination of any kind in college admissions. The Civil Rights Act of 1964 prohibits such discrimination to any college which receives federal funds, however. I believe that almost every state has a similar law, and that every state *would* have such a law in a world where federalism still existed.

I appreciate Mr. Auster’s comments as an example of the difficulties that arise when we try to remain true to our principles in an atmosphere where so many have been undermined. For example, to what extent should there be any federal involvement in private colleges? I wish there were a principle that could tell us when things have become so unprincipled that we must simply support the best ends regardless of the means involved.

Posted by: DR on August 25, 2003 8:48 AM

Another variation on Mr. Auster’s question would be whether in a segregated State it would have been permissible under the 14th Amendment for a Negro college to have employed a lower standard of admission than a white college. Integration would then play no part in the issue raised. But it could still mean that a Negro student would have had a greater chance of attending college than a white student.

Posted by: Joel on August 25, 2003 10:49 AM

It is true that the Grutter quota system violates equal protection in both usages of the term. Yet the biggest issue of all is whether educational systems can give equal protection in any circumstances. If they can, what could explain the existence of graduate schools or the awarding of doctorates? Given that equal protection in public educational systems is a metaphysical impossibility, a great fraud is revealed. Advocates of equalization pretended to be concerned with achieving equal protection, at the same time they knew full well that it could not be achieved, between individuals or groups of any size. Therefore the whole procedure was used to promote civil conflict on a racial basis, the better to gain power for officials, and overcome the constitutional order which stands in the way of leftist hopes for dictatorship.

Posted by: John S Bolton on June 27, 2004 3:51 AM

If I learned anything in “Con Law II” the govt. can create racial classifications. They must, however, satisfy “strict scrutiny” analysis. This is to say that there must be a very very very good reason for the classification. I believe the very good reason for active discrimination against whites in Grutter was a “compelling interest in diversity”. Of course we are all familiar with the benefits of diversity. A room bespeckled with brown faces enhances, by osmosis, the educational experience of the narrow minded and invariably priveliged white students.

Posted by: Thermopalye on November 10, 2004 4:10 PM

Though Thermopylae (notice the correct spelling of the name) is clearly speaking with tongue in cheek, he does accurately state the core reasoning of Grutter. The benefits to society of having that representative sprinkling of minority faces are so fundamental and indispensable that they justify racial discrimination. And Bush, and Alberto Gonzales, and Condoleezza Rice all endorse the principle of Grutter.

Posted by: Lawrence Auster on November 10, 2004 4:19 PM
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