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Bernard James ( [email protected]) is professor of constitutional law at Pepperdine University School of Law and is an occasional contributor to The National Law Journal. We know defining moments in constitutional law when we see them; it’s just that often we do not know what to do with them. Increasingly aware of the preference of the justices for incremental and reasoned development of precedent, we have become more accustomed to a certain perfunctoriness in decision-making. The 2002-2003 term of the Supreme Court, with decisions focusing on homosexual privacy and affirmative action, break this mold and along with it a certain zone of comfort. The majority in each decision reshapes the constitutional landscape in ways that surpass even the expectations of seasoned observers, creating a daunting “to do” list for state and local policymakers and the judiciary in general. There is little to misunderstand about the outcomes in the cases. Lawrence v. Texas, 123 S. Ct. 2472 (2003), overrules Bowers v. Hardwick, 478 U.S. 186 (1986); Gratz v. Bollinger, 2003 U.S. Lexis 4801 (2003), and Grutter v. Bollinger, 2003 U.S. Lexis 4800 (2003), clarify Regents of Univ. of Calif. v. Bakke, 438 U.S. 265 (1978). The right to privacy applies equally to intimate heterosexual and homosexual relationships; affirmative action in education is allowed. The Constitution protects a person from “unwarranted government intrusions into a dwelling or other private places.” Lawrence, 123 S. Ct. at 2475. Educators have a compelling interest in attaining a diverse student body as an essential component of the education mission-a judgment to which the court defers. This is the result of the decisions, in simplest form. The more important task is just beginning: providing some meaning to the words of the justices that will settle expectations for communities and individuals as the court enforces these rules in the years ahead. It is clear at the outset that this will not be an easy task. It matters little, in fact, whether or not one agrees with the outcomes. The court departs from usual practices and traditional themes, launching both the due process and equal protection clauses on a course that promises to resurrect debates about the legitimacy of judicial review when it protects constitutional rights that do not have a textual basis and about the role of the court in a pluralist society pursuing egalitarian ideals. The holding in ‘Lawrence’ In Lawrence, we are told that the state of Texas is not allowed to punish as deviate conduct sexual activity between two adults of the same sex. The court reasons that this is so because “adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons . . . .The liberty protected by the Constitution allows homosexual persons the rights to make this choice.” Id. at 2478. Immediately a problem arises, not with what the court says, but with what it means. Less than two decades ago in the factually similar Bowers decision, the court held that such laws were valid as part of a two-century pattern of criminalizing homosexual sodomy by the states. It was primarily on that basis that the Bowers court reasoned that there was no basis for inferring a constitutional right protecting sexual activity among homosexual citizens. The Lawrence majority takes this use of history to task, eventually concluding that those who drew and ratified the due process clauses “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Id. at 2484. We have heard this mantra of the “living constitution” before; a plurality of justices planted the seeds a decade ago in the plurality decision of Planned Parenthood v. Casey, 505 U.S. 833 (1992), which upheld abortion as a personal liberty: “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects . . . .Our obligation is to define the liberty of all, not to mandate our own moral code.” Id. at 848. The majority in Lawrence essentially brings to fruition this promise: “History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” 123 S. Ct. at 2480. Unfortunately, if the court intended in Lawrence to create a fundamental right, it comes as a vehicle poorly assembled and without an operator’s manual. The majority never makes explicit that intimate sexual relations between homosexual adults are fundamental-a point the dissent emphasizes. All arguments in justification of a fundamental right in Lawrence must admit to some annoyance against the author. Justice Anthony Kennedy parries the point: “The Texas statute,” he opines, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. at 2475. This language is only slightly less precise than the language Kennedy used in Romer v. Evans, 517 U.S. 620 (1996), when the court invalidated a Colorado law targeting homosexuals as one that failed the rational basis test, without declaring the homosexual lifestyle to be a fundamental right or a suspect classification. The omission is critical. Given the right at stake here, Lawrence falls far short of what we expect in fundamental-rights decision-making and is beneath the standard of clarity deserved by those for whose benefit the decision is made. It does not help the defense of the majority to repeat the assertion first made in the dissent in Bowers, that such cases are not “about a fundamental right to engage in homosexual sodomy . . . [but] the right to be let alone.” 478 U.S. at 199 (Blackmun, J., dissenting). If creation of a fundamental right is intended, the Lawrence court declares that such a right “does not involve minors . . . .It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” 123 S. Ct. at 2484. Unless the court is doing away with the traditional judicial-review nomenclature, some language invoking a heightened standard of review is essential to complete the fundamental-rights incantation. The court may believe that there is no need to discuss heightened scrutiny or specify whether a fundamental right has been violated when a law fails the rational basis test. Such an approach was employed in the early right-to-travel decisions as the court eased its way into strict scrutiny over a period of time. See, e.g., Saenz v. Roe, 526 U.S. 489 (1999). This is the sort of messiness that creates tension in communities and legislatures and which translates into a burden on lower courts as future litigants joust for positions amid the ambiguities. The affirmative action decisions Comparatively, the Bollinger cases are straightforward, but still fraught with implications for social policy and future constitutional development under the equal protection clause. The decisions create a contextual exemption to the otherwise general prohibition against race-based policymaking and, in doing so, break ranks with almost two decades of racial discrimination precedent. Why school officials from the University of Michigan should be allowed to use race in admissions decisions when other government officials are not is clearly set forth: Diversity is a legitimate component of the education mission: “Today, we hold that the [educator] has a compelling interest in attaining a diverse student body . . . .The [educator's] educational judgment that such diversity is essential to its educational mission is one to which we defer . . . .Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.” Grutter v. Bollinger, 2003 U.S. Lexis 4800, at 37. The education mission has frequently been viewed as a compelling interest by judges, effectively allowing schools to overcome assertions of student rights with a showing of the deleterious effects, overt or subtle, caused by the exercise of those rights. When applying the precedent in regard to the education mission, courts typically recite the mantra that “[t]he broad authority to control the conduct of students granted to school officials permits a good deal of latitude in determining which policies will best serve educational and disciplinary goals.” Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002), cert. denied, 123 S. Ct. 2077 (2003). This thinking runs back to early education-mission decisions in which the Supreme Court first introduced a more deferential judicial approach to good-faith actions in support of the education mission. In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), while the court upheld “the students’ right to engage in a nondisruptive, passive expression of a political viewpoint,” it confirmed the educators’ interest to respond to “speech or action that intrudes upon the work of the schools or the rights of other students.” Later, in Bethel School District No. 403 v. Fraser, 478 U.S. 675, 680 (1986), in which the court upheld punishment of a student who gave a lewd speech in a school assembly, the justices highlighted the contours of the education-mission factor. The First Amendment does not prevent school officials from determining that to permit a vulgar and lewd speech such as the respondent’s would undermine the school’s basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed toward an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education. Id. at 685. The deference announced in Fraser was later dispositive in the case of Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), in which the court upheld administrative censorship of articles in a high school student newspaper. The court noted, “[w]e thus recognized that [t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board, rather than with the federal courts.” Id. at 266. Therefore, prior to the affirmative action decisions, the court laid a foundation for the practice of sifting the facts of a campus conflict for evidence of arbitrariness or bad faith in educational decision-making. In the absence of such evidence, there was an established deference to the education mission-even when fundamental rights were involved. This deference to educators has a long history by state and federal courts. It has been applied to public schools at all levels, including higher education. The Bollinger cases simply apply the precedent to two cases distinguished by the belief of the justices that one approach to diversity is more authentic. The admissions policy used by the law school passes muster because of its breadth and flexibility. The admissions program of the undergraduate college fails because of its “mechanical, predetermined diversity bonuses based on race or ethnicity.” Grutter, 2003 U.S. Lexis 4800, at 53. A formula of sorts emerges from the Bollinger decisions. First, school officials must avoid “outright racial balancing, which is patently unconstitutional.” Id. at 78. Second, educators should organize their diversity efforts around “the concept of critical mass,” refocusing to a “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Id. at 53. Third, admissions schemes must use the race of applicants only as a “plus” factor in the context of individualized consideration of each and every applicant “in which there are many possible bases for diversity admissions.” Id. at 54. Fourth, the implementation of diversity-sensitive admissions programs must, as a whole, be “flexible and nonmechanical,” refraining from “insulat[ing] each category of applicants with certain desired qualifications from competition with all other applicants.” Id. at 47-48. This formula will be sorely tested in the short term. School officials must consider whether “the volume of applications and the presentation of applicant information make it impractical . . . to use the admissions system” favored by the justices. Gratz, 2003 U.S. Lexis 4801, at 54. Lower court judges will be alert to any evidence of arbitrariness and bad faith in future examinations of school policies, a charge that may be hard to avoid by institutions of higher education that are not part of the small, elite community of universities. Communities must decide whether the goal of egalitarianism is worth the risk of appearing to pit one group of citizens against another based on immutable characteristics. For those states that disagree with the court on the rules of affirmative action, state constitutions are readily available to overrule the Bollinger decisions and impose a higher standard against race-based admissions programs.

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