In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of race-conscious decision-making should remain constitutionally permissible. The Court’s equal dignity jurisprudence in the line of cases running from Lawrence v. Texas to Obergefell v. Hodges, rooted similarly in the Court’s existing affirmative action jurisprudence, provides a basis for reconsidering the goal of affirmative action under an alternative combined due process and equality framework. Under this jurisprudence, 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. 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. But because race can be a constitutive feature of a person’s identity, mandating colorblindness may deny a person’s equal dignity to be considered holistically for who they are.
A cornerstone of the Court’s anti-affirmative-action reasoning, through both dissents and majorities, is a principle of colorblindness rooted in a conception of procedural individualism. The Constitution, we are told, protects individuals, not groups. But as this Article demonstrates, taking individual persons seriously—as the Court urges—has the unexpected implication that government institutions cannot be foreclosed from taking a person’s racial identity seriously as well. The Court’s interpretive and ideological commitment to individual persons as the bearers of constitutional rights entails a textually based, constitutional commitment to persons who can be seen holistically in ways that do not deny their racial identity. Thus, as this Article argues, equal dignity introduces a complication for colorblindness and creates an alternative constitutional framework applicable even if the Court were to abandon the central holding of Grutter. Equal dignity would allow government actors to consider race when giving applicants affirmative consideration of their personal identities in light of their social structures and histories. As this Article introduces it, “affirmative consideration” is a process of considering the personal identities of applicants holistically in their best light, including their personal histories and constitutive features, which necessarily might include their race. To the extent that society continues to make race relevant to the lives of persons through explicit and implicit institutional practices, then to fail to consider an individual as a person for whom race has mattered under colorblindness would be to deny a relevant aspect of what makes them a unique person, and thus, would deny them the equal dignity that due process of law and equality protect. This Article explains and defends this alternative constitutional basis for reorienting antidiscrimination law according to equal dignity principles that makes possible the continuation of a modified form of race-conscious university admissions programs, even if the Court were to sunset Grutter’s diversity rationale. Reorienting constitutional doctrine under equal dignity would foreclose a strict commitment to colorblind constitutionalism, permit affirmative consideration of complete persons, and make possible a new understanding of race consciousness in official decision-making.
Thomas P. Crocker, Equal Dignity, Colorblindness, and the Future of Affirmative Action beyond Grutter v. Bollinger, 64 Wm. & Mary L. Rev. 1 (2022).