I am reprinting a post from 2012, again pertinent given that the Supreme Court is about to hear arguments in the Harvard and UNC affirmative action cases. (Harvard is a private university, but under precedent it's held to the same anti-discrimination standards as public universities via Title VI of the 1964 Civil Rights Act).
The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici. The brief tries to exploit a weakness in conservative Justices' affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans. The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.
I have neither the time nor inclination to check the brief's citations. So let's assume that not just the brief's facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate. It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.
