How will the confirmation of a ninth Justice affect the future of diversity in higher education? After years of going back and forth to the Supreme Court over litigation in Fisher v. University of Texas at Austin and its predecessors – and decades of debating the meaning and merits of affirmative action on campuses across the nation – it might seem as if sweeping developments lie just over the horizon if and when the Court’s composition changes.
But in truth, in this particular area of civil rights, the legal landscape has already shifted significantly, even before a ninth Justice takes his or her (long overdue) seat. Last Term, the Court took a turn for the better in its case law: Justice Anthony Kennedy’s straightforward opinion in Fisher II made clear that a majority of the Justices support the commonsensical principle that diversity – along many dimensions, including race – constitutes a compelling interest and yields significant educational benefits. Kennedy wrote the four-to-three decision (Justice Elena Kagan was recused), reaffirmed years of important legal precedent about the consideration of race in college admissions, and confirmed that “[c]onsiderable deference is owed to a university in defining  intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Kennedy’s vote also reflects a significant evolution from his dissenting opinion in Grutter v. Bollinger, where he was more skeptical about race in college admissions, to a more fulsome embrace of the aspirational dimensions of his prior decisions on race.