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President Trump’s Attack on Historically Black Colleges and Universities
President Donald Trump has disregarded the Constitution when signing executive orders, most notably in his two efforts to impose a travel ban on Muslims. Now he’s doing the same thing in his presidential signing statements.
Last week, President Trump signed into law a bill funding the federal government through the end of September, 2017. But in a signing statement issued the same day—Trump’s first—he threatened to disregard parts of the funding bill that provided funding for historically black colleges and universities, insisting that parts of the bill that provided such funding to these schools “allocate benefits on the basis of race” and had to be interpreted to “afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment.” Rather than fulfilling his duty to take care that the laws enacted by Congress are faithfully executed, President Trump offered a tortured reading of the constitutional guarantee of equal protection that would imperil these critically important and treasured schools.
Historically black colleges and universities have a long history in this county, which traces back to race-conscious measures enacted by the Framers of the Fourteenth Amendment to ensure educational opportunity for all regardless of race. As CAC detailed in the brief we filed on behalf of a renowned group of constitutional scholars in Fisher v. University of Texas at Austin, in writing the Fourteenth Amendment, the Framers recognized that, after a century of racial slavery, the Constitution could not be simplistically colorblind. Faced with the task of fulfilling President Lincoln’s “new birth of freedom” and integrating African Americans into the civil, economic, and social life of the nation, the Framers recognized that race-conscious measures were sometimes necessary to ensure equal opportunities for all. Providing educational opportunities for African Americans was a key part of the Framers’ most important race-conscious enactment, the Freedman’s Bureau. The Freedman’s Bureau helped lay the foundation for Southern public education and helped establish colleges and universities, recognizing the importance of providing pathways to leadership and professional life for African Americans. The schools the Freedman’s Bureau assisted are, to this day, some of the most well-known of the historically black colleges. For example, support from the Freedman’s Bureau was indispensable in the establishment of Howard University, which was named after O.O. Howard, the commissioner of the Freedman’s Bureau.
Some conservatives like to claim that the Constitution must be colorblind—turning a blind eye to the Fourteenth Amendment’s text and history—but assisting historically black colleges and universities simply does not run afoul the colorblindness principle. Historically black colleges and universities do not discriminate in their admissions policies. While African American students are certainly in the majority, historically black colleges and universities admit students of all races and backgrounds. It is not clear why President Trump believes that continued support of historically black colleges and universities denies equal protection of the laws to anyone. Whatever one’s view of the meaning of equal protection, Trump’s claim is a loser.
In concurring opinion in the 1992 case of United States v. Fordice, Justice Clarence Thomas—perhaps the Court’s most conservative Justice on matters of race—firmly rejected the notion that “a State cannot operate a diverse assortment of institutions—including historically black institutions—open to all on a race-neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another.” “It would be ironic,” Justice Thomas wrote, “if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.” But that is what Trump’s view of equal protection would seem to command.
Trump’s signing statement unleashed a torrent of criticism, and prompted President Trump to walk back his threat to deny funding to historically black colleges and universities, but the issue is far from over. While Trump has expressed “unwavering support” for historically black schools, he has not retracted his signing statement. We will be watching closely to ensure that Trump respects the Constitution and the critical role that black colleges and universities have played in ensuring educational opportunity for all.