Affirmative Action and the Constitution

Authors

• Kimberly West-Faulcon, Loyola Law School Los Angeles

Document Type

Article

Publication Date

8-12-2026

Abstract

This Commentary is adapted from a speech delivered on Constitution Day at LMU Loyola Law School Los Angeles on September 18, 2023—less than three months after the Supreme Court’s June 29, 2023 ruling in Students for Fair Admissions v. Harvard. It argues that affirmative action and the Constitution are not naturally connected concepts. Affirmative action is a justice-enhancing, inclusion-motivated endeavor directed toward persons and groups historically subjugated and excluded, whereas the Original Constitution embraced human enslavement and rights exclusion. Drawing on Justice Thurgood Marshall’s 1987 bicentennial reflections, the Commentary argues that the “amended Constitution” as transformed by the Reconstruction Amendments, particularly the Fourteenth Amendment’s Citizenship Clause, Equal Protection Clause, and Due Process Clause, is a constitutionalized DEI—diversity, equity, and inclusion—project. Having situated the post-Civil War 13^th, 14^th, and 15^th Amendments as a constitution-level inclusion policy for non-Whites, the Commentary further argues that “affirmative action” is a broad category of inclusion-oriented policies that cannot properly be reduced to race-conscious admissions at selective colleges and universities as the Supreme Court does in its ruling in SFFA v. Harvard. Through discussion of socioeconomic-based, geography-based, sex-based, special talent-based, and veterans-based affirmative action policies in government contracting, public and private employment as well as selective educational admissions, it demonstrates that failure to specify the objectives, context, and strength of an “affirmative action” policy fuels an ideological project to doctrinally “reverse” the meaning of the Equal Protection Clause. The Commentary concludes with its assessment that the 2023 SFFA v. Harvard decision did not make all inclusion-motivated race-conscious policies categorically unconstitutional but warns that the SFFA ruling’s broader ideological impact will likely be to encourage institutions to retreat from racial inclusion beyond what constitutional doctrine requires.

Recommended Citation

West-Faulcon, Kimberly, "Affirmative Action and the Constitution" (2026). Law Faculty Research and Publications. 11.
https://digitalcommons.lmu.edu/law_faculty_pub/11