San Diego Law Review

Library of Congress Authority File


Document Type



The United States Constitution is a social, as well as legal, document and should be interpreted and applied as such. Context is crucial in constitutional interpretations. The law cannot and should not exist in a vacuum. When interpreting the Constitution, the lasting and pervasive impact of structural and institutional racism and the undercurrents of white privilege should not be ignored. In other words, when interpreting the Constitution, the civil rights of non-white society members must be acknowledged and addressed. Purely literal interpretations of law must give way to both legal—precedential—and societal contexts and, in particular, racial equity in the context of equal protection.

Brown v. Board of Education, decided by the United States Supreme Court in 1954, is a seminal case from 20th century jurisprudence because the Court used context to reach its landmark decision. The Court looked to the realities of segregation by boldly recognizing, acknowledging, and responding to inequality and racial injustice— instead of turning a blind eye to it. In recent decisions, however, the Supreme Court, particularly Justices Clarence Thomas and Antonin Scalia, has distanced itself from Brown’s contextual approach, instead retreating into “intentional blindness” and “post-racial determinism” that interprets the Constitution in an intellectual vacuum rooted in doctrinal and societal stereotypes decrying affirmative action. In the wake of Fisher v. University of Texas at Austin, there is much concern over the lifespan of the educational benefits of diversity as a compelling government interest. This article argues: (1) achieving racial equity, not the educational benefits of diversity, is a compelling government interest; (2) holistic diversity review policies in admissions decisions is a method to achieve said interest; and (3) the educational benefits of a diverse student body are merely a positive outcome of striving to attain racial equity.

Diversity of thought and experience is informed by the various attributes that make up an individual and that individual’s perspectives, including those attributes informed by the individual’s race or ethnicity. As such, considering race and ethnicity in a holistic review process is a narrowly tailored balance between the realities of this nation’s racial inequities, segregated and discriminatory past, racial tension—past and present—and equal protection. In Fisher v. University of Texas at Austin, Justice Ruth Bader Ginsburg’s dissenting opinion articulated the necessity of context when analyzing equal protection and public school admission policies: “government actors, including [institutions of public education], need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality.’” Likewise, government actors, including the Supreme Court, need not be blind to the lingering and pervasive effects of the racial inequities caused by this nation’s “overtly discriminatory past:” the legacy of centuries of law-sanctioned inequality. In other words, when the government ignores racial inequity, equal protection is not equal, nor are its principles achieved.

This Article reframes the analysis by viewing educational diversity through the lens of racial justice, specifically racial inequities in public institutions. It argues that until racial equity is the structural, institutional, and societal norm in America, achieving racial equity through educational diversity must remain a compelling government interest. Part II defines and provides examples of structural and institutional racism and white privilege. Part III outlines the use of context in the Brown decision. Part IV discusses the admissions policy in Fisher; analyzes the concurrences of Justices Thomas and Scalia, and challenges the contention that the “use of race in higher education admissions [policies and] decisions is categorically prohibited by the Equal Protection Clause.” Part V further deconstructs the concurring opinions in Fisher and argues the use of race, when framed by the necessity of racial equity, is a compelling government interest and does not violate the Equal Protection Clause.