Does The 14th Amendment Protect Everyone?

In an editorial today asking the Supremes to avoid “a heavy-handed imposition by judges” and “to leave Michigan’s program alone,” the Washington Post urged the Court to defer to “the political arena” to deal with the propriety of racial preferences.

There was an odd sense of deja vu about this editorial, sounding as it did so much like the advice the Richmond and Montgomery papers gave the Court as it considered Brown v. Board of Education. Even more striking, however, was the Post’s confident (but I believe mistaken) assertion that

it would be wrong for the courts to decree that equal protection — a doctrine meant to prevent the subjugation of one race by another — demands race-blindness from all schools.

The 14th Amendment, home of the Equal Protection Clause, certainly was meant to do that. But it also quite clearly did more: it commanded that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added)

Similarly, Title VI of the Civil Rights Act of 1964 provides that “no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance.”

I’m sure the University of Michigan and its supporters at the Post and elsewhere wish the framers of the 14th Amendment and the drafters of the Civil Rights Act had not been so sweeping in their efforts to eradicate racial discrimination. But sweeping they were, and both the Equal Protection Clause and the Civil Rights Act have long and consistently been interpreted to protect people of all races from discrimination on the basis of race. It is unfortunate that the Post calls on the Court to abandon that tradition.