History and Tradition for DEI Challenges?
District Judge Carlton Reeves has made headlines for his rulings vindicating Second Amendment challenges under Bruen’s “history and tradition” test, while simultaneously criticizing the methodology itself. In a new decision, Judge Reeves suggests that the test might produce surprising results in other areas of law—namely, when construing civil rights statutes currently being used by white plaintiffs to challenge diversity, equity, and inclusion (DEI) programs.
In a prior felon-in-possession case, United States v. Bullock, Judge Reeves initially considered appointing an expert historian to help him neutrally evaluate historical regulations and determine whether the federal ban on convicted felons possessing guns is consistent with historical tradition. The parties rejected that suggestion, and Judge Reeves subsequently granted Bullock’s Second Amendment challenge after finding the government had failed to carry its burden under Bruen. We covered that decision here. On the merits, Judge Reeves determined that “the government put forth no effort to ground in history the present charges it brought against” Bullock and failed to meet its burden of showing “that there is a historical tradition of disarming either the violent or the dangerous.” Judge Reeves also spent time criticizing Bruen and originalism writ large, suggesting that, “[i]n breathing new life into the Second Amendment, [] the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights” and unwisely deferred “to the dead hand of the past.” In a short per curiam decision handed down in November 2024, the Fifth Circuit reversed. The panel found that legislative power to prohibit dangerous people from having guns is well-established historically and that Bullock’s convictions for “manslaughter and aggravated assault . . . [undoubtedly] constitute dangerous and violent crimes.”
On March 31, Judge Reeves again addressed Bruen’s history and tradition test. This time, however, the question was whether the test should be used in a decidedly different context: interpreting the scope of federal civil rights statutes in a challenge to a DEI scholarship program for “students interested in pursuing a career in emergency medical services.” The National Association of Emergency Medical Technicians (NAEMT) has, since 2021, awarded certain scholarships to students of color. This program was challenged by Do No Harm, a group whose mission is “to protect healthcare from radical, divisive, and discriminatory ideologies.” The complaint, filed on behalf of a white woman who would have applied for the scholarship but for its stated limitation to students of color (“Member A”), alleged a violation of 42 U.S.C. § 1981 and its guarantee that
[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.
The medical association moved to dismiss for failure to state a claim. After finding that Do No Harm had standing to sue, Judge Reeves proceeded to the merits. The scholarship-granting association argued in part that, because Member A is not part of a racial minority group, she is not able to challenge the program under § 1981. Judge Reeves noted that, “under ‘the text, history, and tradition test’ that the Court has embraced rigidly in Second Amendment cases, NAEMT will likely succeed.” In other words, if the inquiry turns on historical evidence from Reconstruction (§ 1981 in its original form was part of the Civil Rights Act of 1866), that evidence shows that the statute and similar laws “were informed attempts to provide the formerly-enslaved with the same rights and opportunities as their fellow Americans.” Because these laws were enacted for the benefit of freed Blacks, history suggests they cannot be used by white plaintiffs challenging DEI programs.
However, Judge Reeves continued, “[t]he problem with an appeal to text, history, and tradition [] is that in 1976, the Supreme Court effectively rewrote § 1981. . . [to] protect[] ‘all persons’ regardless of race.” Finding himself bound by this precedent, he denied the motion to dismiss and allowed the claims to proceed.
Judge Reeves seems to be making a similar point here as in Bullock—namely, that it won’t do to selectively adopt text, history, and tradition for certain favored rights or legal areas. Rather, in Judge Reeves’ view, the approach should be used either consistently or not at all. While history and tradition might result in more expansive gun rights than alternative approaches when used in Second Amendment cases, in other areas the approach could well align with liberal or progressive positions. Of course, the Supreme Court has already held that the Fourteenth Amendment’s Equal Protection Clause protects against any form of racial discrimination in higher education, including racial preferences for minority groups, and the justices seem likely to extend that view to the non-educational context. But if Bruen is serious about requiring courts to examine the regulatory tradition, Judge Reeves is casting doubt on whether that tradition—or the actual programs or restrictions that would have been held to violate the language of § 1981 in the Reconstruction period—indicates that non-Black citizens could invoke the statute’s protections or that it was intended to eliminate all racial preferences. In fact, debates between the Republican-controlled Congress and President Andrew Johnson over Reconstruction-era programs that would aid freed Blacks specifically often focused on this very question, with Congress almost invariably overriding presidential vetoes to enact race-conscious programs.
Judge Reeves’ comments suggest how difficult it can be to approach the past without our modern-day biases and to “freeze” historical evidence at a certain point in time. If history and tradition approaches are to gain currency throughout constitutional and statutory law, they should be applied consistently. Just as Congress’ decision to ban all convicted felons from possessing guns in 1968 doesn’t retroactively create a historical tradition of such regulation, so too later-in-time judicial pronouncements that are contrary to original understanding may need to be re-examined.