EQUAL DIGNITY, COLORBLINDNESS, AND THE FUTURE OF AFFIRMATIVE ACTION BEYOND GRUTTER V. BOLLINGER.

• Author: Crocker, Thomas P.

TABLE OF CONTENT INTRODUCTION 5 I. FROM INDIVIDUAL TO PERSON 17 A. Equal Protection and Individualism 17 B. The Constitution and the Person 19 C. Why Focusing on "Persons" Rather Than "Individuals" Matters 23 D. How Emphasizing the Constitution's Textual Reference to "Person" Provides a Better Interpretive Approach 26 II. THE LOGIC OF AFFIRMATIVE ACTION JURISPRUDENCE 29 A. Affirmative Action Through the Lens of Strict Scrutiny 30 B. The Logic of Colorblindness 34 C. Affirmative Action Jurisprudence and the Priority of Persons 44 III. AFFIRMATIVE CONSIDERATION UNDER DUE PROCESS AND EQUAL PROTECTION 51 A. Equal Dignity 53 B. Equal Dignity, Dimensions of Freedom, and Affirmative Consideration 61 C. How Does Affirmative Consideration Change Affirmative Action?--Supply-Side and Demand-Side Reasoning 69 CONCLUSION 79 INTRODUCTION

In its 2003 opinion in Grutter v. Bollinger, the Supreme Court concluded that the need to maintain diversity in higher education was a compelling state interest that justified consideration of race as one criterion among others in making admission decisions. (1) Grutter established an equality standard good for a projected twenty-five-year period. The Court warned that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary." (2) What happens to the constitutional status of affirmative action by 2028 is thus in question, but one expectation implicit in the Court's reasoning is that American society will have sufficiently remedied past problems of racial fairness to render its continued use unnecessary. (3) As a result, government institutions that provide public goods such as educational opportunity would have no compelling need to continue using race in their decisionmaking practices. If there were no compelling need, then affirmative action would no longer be consistent with constitutional principles of equality. The problem, the Grutter majority reasoned, was that the practice of making individualized decisions that use race as an admissions criterion deviates from the overriding constitutional requirement of colorblindness. (4) Equality, the Court has reasoned, is best achieved through color-blind practices. (5) As Justice Thomas explained, "[t]he Constitution abhors classifications based on race ... because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all." (6) According to the Court in Grutter, when the pressing need to include race as a consideration in university admissions fades because of society's success in achieving greater racial justice, diversity will likely no longer serve as an end to justify continued programmatic race-consciousness. (7)

Not only are Americans now in the last decade of Grutter's proposed temporal limit, but the Court will hear two challenges to affirmative action in its October 2022 Term--a few years prior to the predicted sunset. (8) Spanning both private and public institutions with challenges to Harvard University and the University of North Carolina, these cases provide the Court with an opportunity to conduct a comprehensive review of affirmative action programs, despite its more recent reaffirmations. (9) In Fisher v. University of Texas at Austin (Fisher I), plaintiffs challenged a state's ability to layer consideration of race on top of a race-neutral state plan to guarantee admission to the top 10 percent of every high school class. (10) In Fisher v. University of Texas at Austin (Fisher II), Justice Kennedy, writing for the Court in 2016, was willing to defer to the educational institution's claims that limited use of race--on top of Texas's 10 percent plan--was narrowly tailored to achieve its overall diversity goals. (11) What constituted a sufficiency criterion for incoming class diversity remained imprecise, and how much deference to grant university officials to decide when and how consideration of race is appropriate remained contested, generating another four-Justice dissent that motivates reconsideration of Grutter. (12) With the recent additions of Justices Kavanaugh and Barrett replacing Justices Kennedy and Ginsburg, there are additional reasons to think that the current challenges to affirmative action may very well follow Justice O'Connor's expectation that the Court sunset Grutter's central holding. (13)

Diversity, affirmative action's critics continue to emphasize, is an ad hoc standard lacking definite measurement. (14) In Grutter, the Court accepted that imprecision was built into the concept, as the University of Michigan Law School sought to achieve a "critical mass" of diverse students. (15) Such a "critical mass" avoids the constitutional taint of a quota, which the Court forbade in Regents of the University of California v. Bakke, (16) at the price of creating a sorites paradox. (17) How many students constitute a "critical mass"? Because the University of Michigan could not say, dissenters and critics continue to argue that diversity is a vague end to pursue in light of its purported social costs. (18) In this way, opponents continue to press the case that affirmative action violates core principles of equality because the State must be neutral in its decision-making regarding race. (19) On this view, to fulfill a constitutional goal of colorblindness, the Court should sunset Grutter.

Although both motive and means are available for overturning Grutter and abandoning the diversity rationale for affirmative action, a line of cases that developed a doctrine of equal dignity introduce a complication--and an alternative. Following a constitutional rationale that runs from Lawrence v. Texas to Obergefell v. Hodges, the Court combined equal protection and due process considerations to create a doctrine of equal dignity. (20) As the Court explained in Lawrence, "[e] quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests." (21) The tandem effects of due process and equal protection--a "double helix" as Professor Laurence Tribe calls them (22)--mean that in order to respect the equal dignity of individual persons, state actors must not dominate or deny central aspects of an individual's personal identity. (23) The law must grant the equality of individual persons' liberty to define and present their personal identities free from government actions that would enshrine forms of disrespect as a matter of law. Consistency would require that if law must respect a person's sexual orientation as a constitutive feature of personal identity, it must also respect a person's race as constitutive of identity too. But if race can be a constitutive feature of a person's identity, then mandating colorblindness may deny a person's equal dignity to be considered holistically for who they are. Thus, as this Article argues, equal dignity introduces a complication for colorblindness and opens up an alternative constitutional framework applicable even if the Court were to abandon the central holding of Grutter that a state can have a compelling interest in pursuing diversity. (24)

Three broad outcomes could follow from the pending opportunity for the Court to reconsider Grutter. First, following cases like Fisher II, the Court might reaffirm its core holding and continue to accept that achieving diversity is a compelling end that justifies limited and contextual consideration of race as a factor in admissions decisions. Under this approach, the Court would likely emphasize the nature of its fact-intensive inquiry and the obligation of institutions to reevaluate their use of race as a factor in their decision processes. (25) Second, the Court might overturn Grutter by holding that diversity can no longer serve as a compelling state interest, and thus would no longer justify consideration of race in admissions. Under this reasoning, the Court would prohibit race-conscious admissions programs as inconsistent with principles of equality, thereby vindicating the four dissenting views in Grutter as well as the expectations of Justice O'Connor's proposed twenty-five-year sunset. (26)

But there is a third way, which this Article seeks to chart. This Article argues for the constitutionality of limited consideration of race in admissions programs, premised not on achieving diversity but on recognizing the equal dignity of persons. This third way becomes most relevant if the Court were tempted to overturn Grutter because it demonstrates how doing so will not resolve the constitutional issues that institutional consideration of race creates. This Article analyzes the tension that exists between the Supreme Court's color-blind rationale--a central pillar of the anti-affirmative-action position--and its equal dignity jurisprudence. Members of the Court claim that a color-blind principle prohibits consideration of race. By contrast, the Court's commitment to an equal dignity jurisprudence requires legal consideration for individuals' personal identities, which necessarily includes their sex, sexual orientation, and race. Because strict colorblindness would violate the equal dignity of persons, there is a looming tension internal to the Court's jurisprudence. This Article proposes a way to resolve this looming internal inconsistency in the Court's jurisprudence between its pull towards a colorblindness principle and its commitment to equal dignity. Even if the Court holds that diversity is no longer a compelling interest, equal dignity provides an alternative doctrinal framework within which race may be considered. The implications extend more broadly for antidiscrimination law in general.

Equal dignity would allow government actors to consider race when giving applicants affirmative consideration of their personal identities in light of their social...