The 14th Amendment has been used to dismantle race-based programs. Historians say there are clashing interpretations

By Nicquel Terry Ellis, CNN

(CNN) — The Supreme Court’s decision to gut affirmative action in college admissions one year ago has opened the door for numerous legal challenges against race-based grant programs, internships and scholarships across the country.

Many of those lawsuits are being filed by conservative groups who insist that it’s unconstitutional to design and operate a program exclusively for a certain racial group.

They argue that the programs particularly disadvantage White and Asian Americans, by preventing them from obtaining the jobs, funding or opportunities that these programs offer to other racial groups.

Some lawsuits invoke the Equal Protection Clause of the 14th amendment which was ratified after slavery was abolished and says no state may “deny to any person within its jurisdiction the equal protection of the laws.”

The amendment was notably cited in Justice Clarence Thomas’ concurring opinion in the landmark affirmative action ruling, who described it as a “crowning accomplishment” of Congress.

Thomas argued that the 14th Amendment “ensures racial equality with no textual reference to race whatsoever.”

“In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements,” he wrote.

But some historians argue that the history of centuries of slavery and racism that ultimately led to the ratification of the 14thamendment is often lost in the conversations around affirmative action.

The amendment, they say, was never intended to be colorblind.

Why was the 14th amendment passed?

The 14th amendment was ratified on July 9, 1868, to grant citizenship and equal protection of the law to anyone “born or naturalized in the United States,” including formerly enslaved Black people.

At the time, the passage of the amendment was necessary because millions of Black people were newly freed and their legal and civil rights had not been established.

Eric Foner, a historian and professor at Columbia University who specializes in the Civil War, Reconstruction and slavery, said the 14th amendment enabled Black people to legally enjoy freedoms such as getting an education, owning land and riding street cars.

Foner also said the amendment was created to ensure that programs specifically for newly freed Black Americans were able to continue. One example, he said, was the Freedman’s Bureau, which was established in 1865 to provide aid such as food, clothing and medical services to formerly enslaved people.

“Certainly, this notion of equal protection of the law was both a general principal applied to everybody and a particular justification for assistance to Black people,” Foner said. “You have to look at the broad historical context.”

But even after the amendment was ratified, Jim Crow laws, segregation and racial violence prevented Black Americans from gaining equality.

Some racial disparities persist today and now, more than 150 years later, the same amendment that paved the way for programs that help many Black people is being used as justification to dismantle them.

How is it being interpreted in today’s legal challenges?

The 14th amendment has been cited in several lawsuits filed by conservative groups challenging the constitutionality of programs specifically for people of color.

Some of these legal challenges successfully forced defendants to open their programs to people of all races, either voluntarily or through a court order.

Earlier this year, legal strategist Edward Blum, through his legal advocacy group the American Alliance for Equal Rights, sued the director of the Smithsonian’s National Museum of the American Latino and the director of the Institute of Museum and Library Services over an internship program that was open only to Latino applicants, saying it violated the US Constitution.

The complaint cited both the 14th amendment and the Fifth amendment while arguing that the internship program violated the right of “Americans, like Plaintiff’s members,” to equal protection under the law.

When asked for comment about the settlement, David Coronado, a spokesperson for the National Museum of the American Latino said in an email to CNN, said the museum has now added language to the program’s website and scoring rubric that “spells out what had been our practice already,” CNN previously reported.

“The National Museum of the American Latino reaffirmed its longstanding commitment to equal opportunity for all internship applicants, regardless of race or ethnicity,” Coronado said. 

In a statement to CNN this week, Blum said the 14th amendment’s equal protection clause “has been interpreted to mean that individual Americans should never be treated differently because of their race.”

Blum said, in his view, “any program or policy such as college admissions, fellowships, internships, grants, financial aid and employment that excludes someone because of their race is usually in violation of the 14th Amendment.”

The museum settled with Blum in March and now states its internship program is “equally open to students of all races and ethnicities.”

The 14th amendment was also invoked in a recent lawsuit filed by the conservative group Judicial Watch against the city of Evanston, Illinois over a reparations program for Black residents meant to correct past discriminatory housing practices. Under the program, Black residents who lived in the city between 1919 and 1969 – as well as their direct descendants – can apply for up to $25,000 in housing assistance or a direct cash payment, CNN previously reported.

But the lawsuit, filed on behalf of six people whose parents or grandparents lived in Evanston during the outlined time period but do not identify as Black, argues that solely limiting the cash payment to eligible Black Americans “violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution” because “Evanston is discriminating against each member on the basis of the member’s race.”

Tom Fitton, president of Judicial Watch, said the reparations program is a “brazen violation” of the 14th amendment.

“You get equal protection of the law under our constitution irrespective of your race,” Fitton told CNN in an interview earlier this month. “There are no exceptions for denying people equal protection of the law.”

Why are there clashing interpretations?

David Blight, a history and African American studies professor at Yale University, said he believes the 14th amendment was written in a way that leaves it open to different interpretations.

Blight said while it was initially ratified to help formerly enslaved Black people, the language in the amendment is vague. It’s also unclear how it should be enforced, Blight said.

This has allowed conservatives today to use it to their advantage in legal challenges against race-based programs, he said.

“The 14th amendment is, without any question, malleable,” Blight said. “It can be twisted and used all kinds of ways and that’s what has happened with affirmative action.”

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