*This post is part of ACSblog’s 2015 Constitution Day Symposium.
Does the U.S. Constitution permit universities to consider race as part of their admissions process? To date, the U.S. Supreme Court has answered yes—subject to specific conditions and requirements. But race-conscious university admissions policies continue to be one of the most charged issues in modern constitutional jurisprudence. And the Court will again visit this debate in its October 2015 term, when it reconsiders Fisher v. Texas.
At first glance, the constitutionality of race-conscious policies may appear to be contingent on one’s theory of interpretation. Living constitution theory―the idea of the Constitution as a dynamic, evolving document interpreted in light of changing social and political circumstances―is typically associated with social change and liberal political interests. The Supreme Court’s unanimous opinion in Brown v. Board of Education (1954), authored by Chief Justice Earl Warren, was grounded in living constitutionalism—striking down racial segregation in public schools because of the growing importance of education for citizenship and social adjustment, and because of new evidence of the harms of segregation to Black children. The Warren Court is known today for its expansion of civil rights and liberties through dynamic constitutional interpretation.
However, a living constitution might also proscribe race-conscious university admissions. If the Constitution is dynamic and evolving, then it can also evolve to require race-neutrality—even after a period where race-conscious policies were constitutionally valid. Such an outcome is not implausible on the current Supreme Court. Recently, Justice Anthony Kennedy, who is the swing vote on this Court, seemed to embrace the notion of a living constitution when addressing the right of marriage for same-sex couples. His majority opinion in Obergefell v. Hodges (2015) stated:
“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment . . . entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
But such “new insight” could also “reveal” that diversity is no longer a compelling state interest or that it cannot be pursued by race-conscious means. And while he has repeatedly affirmed the diversity rationale—in his majority opinion in Fisher v. Texas (2013), his dissent in Grutter v. Bollinger (2003), and his concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 (2007)—Justice Kennedy has never actually approved of a race-conscious admissions policy. He is apt to strike down such policies on narrow tailoring grounds and may eventually find that the Constitution requires their proscription. In this vein, living constitution theory does not ensure the doctrinal viability of race-conscious university admissions.