September 15, 2015

Private: Diversity and Living Constitution Theory

2015 Constitution Day Symposium, Affirmative Action, living Constitution

by Vinay Harpalani, J.D., Ph.D., Associate Professor of Law, Savannah Law School

*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.

Originalism―the notion that the Constitution has a static meaning determined by its Framers―is usually associated with more conservative political views. It is true that originalist–leaning Justices on the current U.S. Supreme Court, such as Antonin Scalia and Clarence Thomas, tend to view almost all race-conscious policies as unconstitutional. However, originalism itself could lead to a different outcome. Perhaps the Framers of the Fourteenth Amendment meant to allow race-conscious policies to pursue the remedial goals of Reconstruction. The Court noted in Brown that historical analysis of the Fourteenth Amendment’s ratification was inconclusive. And if the Framers of the Reconstruction Amendments did posit implementation through race-conscious policies, that view could also encompass modern applications, such as pursuing diversity in university admissions. Justice Lewis Powell stated as much when he first judicially articulated the diversity rationale through his concurrence in Regents of the University of California v. Bakke (1978).

While theories of interpretation may yield either result, there is a different nexus between a dynamic, living constitution and the doctrine on race-conscious university admissions. Both embrace the idea that individuals and the law must be flexible, adaptive, and accommodating to social change. The value we attribute to diversity finds its roots in the pragmatist thought of John Dewey and William James and in the notion of cultural pluralism exposited by Horace Kallen and Alain Locke, all of whom pondered the implications of rapid changes in American society in the late nineteenth and early twentieth centuries.

Such changes would accelerate after World War II, and Derrick Bell articulated how desegregation promoted U.S. foreign policy interests during the Cold War in the context of globalization. In Sweatt v. Painter (1950), the Supreme Court struck down racial segregation at the University of Texas Law School, noting that legal education required “the interplay of ideas and the exchange of views with which the law is concerned.” And in his Bakke opinion, Justice Powell drew from Sweatt and from the joint amicus brief of several private, elite universities: Columbia, Harvard, Stanford, and the University of Pennsylvania.

The evolving values, experiences, and aspirations of these and other institutions of higher learning played a central role in the development of the of the diversity rationale. Justice Powell also noted that the First Amendment’s protection of the marketplace of ideas was particularly salient in institutions of higher learning. Later, in Grutter v. Bollinger, Justice Sandra Day O’Connor’s majority opinion framed the diversity rationale in the context of modern economic and political globalization, synthesizing all of these ideas. Justice O’Connor noted the importance of breaking down racial stereotypes and exposing future leaders to diverse perspectives in order to promote effective citizenship and leadership, and Fisher v. Texas later affirmed these goals. At the core of this doctrine is the notion that the educational benefits of diversity accrue from promoting adaptability through experience—the same principle that undergirds a living constitution.

The narrow tailoring requirements for race-conscious admissions policies also promote flexibility in application. Bakke proscribed numerical set-asides based on race, and in Gratz v. Bollinger (2003), the Court struck down a rigid point system that automatically rewarded all minority applicants. But Grutter, which upheld more flexible race-conscious admissions policies, emphasized the importance of individualized review when considering race. The reasoning here, related to the diversity rationale, was that the utility of race can only be discerned in conjunction with the applicant’s other individual attributes, the overall diversity of the larger applicant pool, and the university’s educational goals and mission―all in the context of an evolving society. The Supreme Court reaffirmed these tenets in its 2013 Fisher ruling. Both Grutter and Fisher also require universities to explore race-neutral alternatives and periodically review the necessity of using race. Elsewhere, I have also argued that universities should continue to devise and implement their diversity-related goals and race-conscious policies in novel and innovative ways, using evidence from campus activities and interactions. All of these ideas reinforce the importance of adaptability through experience.

Beyond the law itself, diversity has gained broad approval as a legitimate social goal. While there is a charged debate about race-conscious admissions policies, the value of diversity is widely accepted, even by those who oppose such policies. Like living constitution theory, the diversity rationale and the narrow tailoring requirements for its implementation reflect how law can change society and how society can change the law. And both also illustrate how adaptability to such change is itself a core virtue.


I thank Professors Stacy Hawkins and Christopher Schmidt, along with Brian Burgess, for their very helpful comments on an earlier draft of this essay. You can follow me on Twitter @VinayHarpalani.

Constitutional Interpretation