//  5/12/17  //  Commentary

President Donald Trump recently suggested that it’s unconstitutional for Congress to offer special financing for historically black colleges and universities. He also recently changed one of his political views after a ten-minute history lesson. In that spirit, I encourage the president to read a few paragraphs about one of his favorite historical topics: A nineteenth-century general who saw the Civil War coming, was angry, and did something about it.

General Oliver Otis Howard isn’t on the twenty-dollar bill or anything, but if you were drafting a team of historical figures most responsible for desegregation, one-person-one-vote, and all the other legacies of the Fourteenth Amendment, he would be a solid first-round pick. An instructor at West Point when the Civil War began, General Howard received the Medal of Honor for leading an infantry charge after being shot twice in the arm. He went on to serve as a commanding officer at Gettysburg and under General William T. Sherman during his famous “march from Atlanta to the sea.”

This last campaign encouraged thousands of enslaved black people around Georgia to free themselves and join the Union lines. General Howard became a point person between soldiers puzzled by these “contrabands” and Northern philanthropists who wanted to help them. As the Civil War drew to a close, President Abraham Lincoln appointed the 34-year-old Howard the first commissioner of the first civil rights agency in the federal government’s history: The Bureau of Refugees, Freedmen, and Abandoned Lands, or the Freedmen’s Bureau.

Howard and other officers saw his mission as “Hercules’ task”: helping four million people who had just been enslaved “begin at the bottom of the ladder and climb” the ranks of an incredibly hostile society. His first priority was to protect black families from lynch mobs and so-called vagrancy laws. These laws applied to “white and black alike,” but Southern sheriffs were enforcing the laws only against black people, punishing them with—what else—involuntarily labor on former plantations.

Howard’s long-term goal, the one he considered “true relief,” was “the education of the freedmen’s children.” But even this was a challenge. “Hostile spirits declared that if the negroes were allowed to read they would soon be permitted to vote,” Howard wrote. Schoolhouses were therefore targets of burnings while white teachers from the North were targets of assassinations. When Howard experimented by hiring Southern white teachers, he “found that their faith in negro education was too small . . . to admit of any success.” By contrast, “faith and enthusiasm combined to give the negro teachers a marvelous progress.”

These experiences convinced Howard to petition Congress to help finance and charter the construction of schools dedicated to training more black teachers. One of these schools still bears his name: Howard University, in Washington, D.C.

Not everyone was pleased with General Howard’s mission. In 1866, President Andrew Johnson vetoed a bill to renew the Freedmen’s Bureau, calling it unconstitutional “class legislation.” The president argued that Congress had no authority to spend money on schools for “a favored class of citizens,” particularly when “millions of the white race” also needed an education.

No one, especially not General Howard, doubted that white children should be educated, too. But only black children were being firebombed. Nevertheless, Congress took the president’s constitutional interpretation seriously. When the 1866 Congress voted to overturn the president’s veto and renew Howard’s bureau, it also proposed a Fourteenth Amendment to the Constitution, giving Congress express authority to fund the bureau in the future.

Since then, the alumni of Howard University and other historically black colleges and universities have not only continued General Howard’s original mission of educating black children, but they’ve also used the Fourteenth Amendment as a sledgehammer to tear down the descendants of those vagrancy laws. Thurgood Marshall, for example, successfully argued Brown v. Board of Education after receiving his legal education from the Howard University Law School and its inspired dean, Charles Hamilton Houston.

Yet Congress has continued to find that, “due to their small enrollments, limited endowments and other financial factors normally considered by lenders in construction financing, historically Black colleges and universities often lack access to the sources of funding necessary to undertake the necessary capital improvements.” In 1992, Congress created the Historically Black College and University Capital Financing Program to guarantee bonds and help provide these schools with alternative funding.

This is the program President Trump recently called into question. At the end of a signing statement in which he doubted the constitutionality of a dozen or so budget allocations, he added that the capital financing program might violate his constitutional obligation “to afford equal protection of the laws.” (This obligation is derived from the Fourteenth Amendment and was first applied to the federal government by a Howard University law professor, George E.C. Hayes, and a future Howard University president, James Nabrit.) Although the president has since backtracked, at least some lawyers in his administration probably remain skeptical of providing historically black universities like Howard with special financing.

They’re likely not alone. For the past forty years, the Supreme Court has dialed down Congress’s authority to enforce the Fourteenth Amendment while using the amendment to strike down federal programs whose purpose is to assist a particular racial group. It would be unsurprising if the Court applied its skepticism to a program dedicated to funding historically black colleges and universities. While schools like Howard have always been open to students of all races, Congress has opened its capital financing program only to schools “whose principal mission was, and is, the education of Black Americans.”

But it would be a tragic irony if the Trump administration treated the Fourteenth Amendment—enacted in part to constitutionalize General Howard’s bureau—as an obstacle for financing one of his defining legacies. Long before President Trump, President Johnson also argued that the Constitution didn’t permit Congress to fund schools for black people. But the American people rejected that argument when they ratified the Fourteenth Amendment.

General Howard recognized as well as anyone that equal protection is not the same thing as color blindness. After all, the vagrancy laws he opposed were racially neutral, while the guiding mission of the schools he founded was to educate black teachers. His experience teaches us that racial equality often calls for contextual, on-the-ground investigations—not mere legal formalism.

At the very least, Howard is a nineteenth-century general with a big heart. President Trump would do well to take after him.


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