Remembering: The Constitution and Federally Funded Apartheid

Joy Milligan

Professor, the University of Virginia School of Law.

For helpful feedback, I thank Abhay Aneja, Darby Aono, Abbye Atkinson, Emily Bruce, Guy-Uriel Charles, Erwin Chemerinsky, Gabriel Chin, David Engstrom, Jonathan Glater, Michele Gilman, Becca Goldstein, Jon Gould, Kristen Holmquist, Olatunde Johnson, Daryl Levinson, Melissa Murray, Saira Mohamed, Tejas Narechania, Manisha Padi, Michael Pinard, Richard Primus, Bertrall Ross, Erik Stallman, Aaron Tang, Karen Tani, Rebecca Wexler, and participants in the Northern California Junior Faculty Workshop, Loyola Constitutional Law Colloquium, Poverty Law Mini-Workshop, AALS Civil Rights Section Works-in-Progress, NYU Constitutional Theory Colloquium, and the law faculty workshops at Duke, UCLA, the University of Miami, the University of Michigan, and the University of Virginia. I am grateful to the University of Chicago Law Review staff for their exceptional editing, and to Maya Campbell, Toni Mendicino, Talia Stender, and Graham Wyatt for their excellent research assistance.

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Abstract

For much of the twentieth century, the U.S. government authorized and invested heavily in segregation and racial inequality. Often it did so through federal programs authorized under Congress’s Spending Clause powers. Federal spending allowed powerful national investments in areas like health, education, and housing but frequently created segregated hospitals, schools, and communities. From the New Deal onward, Black leaders pressed constitutional arguments to hold the federal government responsible for its role in deepening racial inequality. Early on, federal lawyers and administrators recognized the strength of those arguments but explicitly decided against halting federal involvement in Jim Crow.

Decades later, the civil rights advocates prevailed. By the 1970s, the federal courts overwhelmingly agreed that the Fifth Amendment’s Equal Protection component barred federal subsidies or support for racial discrimination. The same “noaid” principle was codified in the landmark Civil Rights Act of 1964. However, from the 1980s onward, this hard-won constitutional mandate became increasingly difficult to enforce, blocked by judicially constructed procedural obstacles. The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle.

This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again. The costs of forgetting the constitutional principle and its history are significant: Civil rights frameworks have been distorted, leaving no systemic check or means of redress for the discriminatory use of federal funds. Further, the nation’s constitutional memory and deliberations have been shortchanged, leaving us unable to reckon with the past honestly and adequately. Our polity should again debate federal constitutional responsibility for Spending Clause programs, and, in doing so, confront the nation’s obligation to repair the apartheid it once bankrolled.

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