Office of Robert N. Clinton

Affirmative Action, History & Judicial Social Engineering

Copyright 2003, Robert N. Clinton

A little over 185 years ago, Federal Treaty Commissioners, led by Lewis Cass, met at the foot of the Rapids of the Miami of Lake Erie to negotiate a treaty with a number of Great Lakes Indian tribes, including the Chippewa, Ottawa (or Odawa), and Potawatomi from Michigan. The Fort Meigs Treaty of 1817 emerged from those talks. In it the Michigan Tribes donated lands to a college at Detroit and further authorized the donated lands to be kept or sold at the discretion of the college. The express purpose of the land grant contained in the Treaty was Indian education. The donor Michigan Tribes stated in the Treaty that they made the grant because “may wish some of their children hereafter educated.”

The land grant in the Fort Meigs Treaty marked the start of the University of Michigan, which to this day bears the 1817 date on its official seal as the date of the founding of the school. Sale of the lands donated by the tribes produced the original endowment of the University of Michigan, which purchased the core of its current campus in Ann Arbor, Michigan and provided much the University’s original endowment. Lewis Cass, the territorial governor and federal treaty commissioner at the Fort Meigs Treaty became the first President of the University of Michigan.

Thus, like Harvard, Dartmouth, and the College of William and Mary, to name a few, the history of the University of Michigan demonstrates that it was founded in part specifically to educate Indian students. In this case, land grants from the Michigan Tribes intended to educate their children provided the school’s original capital. Ironically, today the University of Michigan finds itself embroiled in a major controversy pending before the United States Supreme Court over whether it can even consider Indian or other minority racial status of applicants in its admissions processes. In light of this history, the question of the constitutionality of affirmative action at the University of Michigan raises the issue of whether the University can continue discharge one of its original founding missions – the education of Indian students.

The history of the University of Michigan illustrates the fact that frequently public institutions of higher learning have multiple objectives, not all of which are entirely consistent. For example, the University of Michigan, as a state institution of higher learning, has some obligation of educate the citizens of the state. However, it also has a special mission, derived from the history of its founding, to educate minority students, and in particular the descendents (“children” in the words of the Fort Meigs Treaty) of Indian tribes. Of course, Indian tribes need educated and highly skilled tribal officials, tribal staff, and tribal citizens to run their tribal governments, just as much as the State of Michigan requires an educated electorate – a point the ancestors of the Michigan Tribes foresaw when they helped found the University of Michigan. In the University of Michigan cases, the University itself has argued that it not only has the objective of admitting an educationally qualified class, it also has a compelling educational objective in providing a racially and intellectually diverse educational environment that mirrors America, not just the most politically powerful and numerous segment of it.

The plaintiffs in the University of Michigan cases and the Bush Administration in its friend of court briefs have grossly over simplified the purposes of higher education and the nature of the admissions process in making their arguments against affirmative action. The premise of their argument is the simple suggestion that public schools have a single-minded objective to provide education to the most qualified and that the admissions process must therefore admit the most “qualified” on a colorblind, race-neutral basis under the Equal Protection Clause of the Fourteenth Amendment.

The history of the founding the University of Michigan demonstrates the falsity of this premise. First, institutions of higher learning often have multiple objectives, which are reflected in their admissions processes. The University of Michigan, for example, was not founded merely to provide education to the state’s most “qualified” students based on some arbitrary test score; it was also specifically founded to educate Indian students in addition to other objectives such as educating Michigan residents and other students. Clearly, the University of Michigan cannot accomplish its founding mission of educating Indian students without considering their Indian status as part of the admissions process. Given that national curves suggest Indian students often score lower than non-Indian students on many standardized tests, in part as a result of the history of neglect of and inadequate funding by federal and state governments for education on Indian reservations, if the University of Michigan cannot consider an applicant’s Indian status as part of the admission process, it cannot fulfill its founding mission of educating Indian students because it may not even be able ask them if they are Indians as part of the admissions process.

In the University of Michigan cases pending before the United States Supreme Court, the plaintiffs and the Bush Administration argue that the Equal Protection Clause of the Fourteenth Amendment compels the University of Michigan and other public schools of higher learning to use race-neutral or colorblind criteria, impliedly arguing that the later adoption of the Fourteenth Amendment must have rendered the University of Michigan’s founding mission of educating Indian students somehow illegal. In fact, President Bush as much as said so in his message on affirmative action by specially singling out Native Americans in his comments.

This point raises the second problem with the argument — the political slogans of race neutrality or colorblindness find no support whatsoever in the language or history of Equal Protection Clause of the Fourteenth Amendment, as the University of Michigan cases demonstrate. If the University of Michigan was founded to educate Indian children, nothing in the Fourteenth Amendment could conceivably render that objective unconstitutional since section 2 of the Fourteenth Amendment itself draws an Indian classification for purposes of the census. Those who argue that the Equal Protection Clause of the Fourteenth Amendment requires race neutrality and colorblindness in all government decisionmaking totally ignore the fact the same constitutional amendment draws a benign Indian classification. The Fourteenth Amendment therefore could not conceivably have been thought by its drafters to totally outlaw even benign Indian classifications. What was outlawed by the 14th Amendment was what the early civil rights cases often called “invidious racial discrimination,” the disadvantaging of persons of minority races based solely on their race. Colorblindess as a legal norm therefore has no basis whatsoever in the language or history of the Fourteenth Amendment. Responding to contemporary political pressure, the decisions of the United States Supreme Court have simply invented it as a social engineering norm in the guise of legal doctrine. If the Court therefore accepts the arguments of the plaintiffs and the Bush Administration in the University of Michigan cases, it will be the majority of the Supreme Court and not the University of Michigan that is engaged in legal social engineering. The more interesting question is to what end. Here, history may provide another guide.

In 1883, the Supreme Court of the United States in the Civil Rights Cases struck down as unconstitutional under the Fourteenth Amendment the nation’s first law banning racial discrimination in places of public accommodation, such as hotels, public transportation, theaters, and other places of amusement. Justice Bradley’s opinion for the majority of Court ended, “[w]hen a man has emerged from slavery . . . there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law, and when his rights as a citizen or man, are to be protected in the ordinary modes by which other men’s rights are protected.” The first Justice Harlan was the sole dissenter and the only Justice ready to uphold the ban on racial discrimination in places of public accommodation. He rejected the notion that special protections of the black race were inappropriate. He wrote, “If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic any class of human being in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.” Justice Harlan thus argued for a special entitlement of the black race under the Fourteenth Amendment designed to produce true racial equality by establishing the political independence of minority races.

History teaches important lessons about race in the United States. Within 15 years of the Court’s decision in The Civil Rights Cases, the same Supreme Court in Plessy v. Ferguson created the separate but equal doctrine that reinforced the nation’s racial segregation for another six decades. The only dissenter from the separate but equal doctrine in Plessy was Justice Harlan, the sole dissenter in The Civil Rights Cases and the only justice who believed that the Fourteenth Amendment permitted, and perhaps required, special legislation protecting minorities in order to create true political racial equality. National laws outlawing racial discrimination in places of public accommodation did not become a national reality for another 80 years. The debates today over affirmative action and the use of race in the University of Michigan admission processes sound remarkably like the debate between the majority of the Supreme Court and Justice Harlan over special legislation to protect the newly freed slaves. In light of this history, the nation should hope that the members of the United States Supreme Court recall the often repeated admonition of the great Harvard philosopher George Santayana, “those who do not remember history are condemned to repeat it.” The nation simply cannot afford another half-century delay in its often-derailed quest for social justice and political racial equality.

One thing is certain about the University of Michigan affirmative action cases, however. Whatever way the United States Supreme Court rules on whether the University of Michigan can continue to employ Indian status or other racial classifications in its admissions processes in furtherance of its founding mission of educating Indian students, the Michigan Indian Tribes that donated land that founded the University of Michigan so their children could be educated there will not get their land back!