Justice Anthony M. Kennedy was going to cripple affirmative action — or kill it. Some scholars and pundits said so. After all, the man who would cast the deciding vote in Fisher v. University of Texas at Austin had never supported a race-conscious admissions policy. As the closely watched case dragged on, higher education braced for a defeat.
Then, in June, came the surprising news: In a 4-3 decision, the U.S. Supreme Court upheld the constitutionality of Texas’ limited use of race (“as a factor of a factor of a factor”) in its undergraduate admissions process. Instead of shredding the existing legal framework for race-conscious admissions plans, Justice Kennedy preserved it. In a clear, fact-rich majority opinion, the court’s longest-serving member also affirmed the educational benefits of racial diversity, as well as the basis for holistic review.
For Justice Kennedy, 80, the Fisher case marked a conversion. A Reagan appointee with conservative moorings, he had long looked skeptically on plans to enhance diversity. When the court upheld the University of Michigan Law School’s race-conscious admissions policy (Grutter v. Bollinger), in 2003, he wrote a sharp dissent: “Preferment by race … can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” In scrutinizing Michigan’s use of race, he said, the court granted the university too much “deference.”
He changed his opinion of race-conscious admissions and helped secure them in higher ed.
But in Fisher, Justice Kennedy sang a different tune. By devising a “narrowly tailored” means of considering applicants’ race, he concluded, Texas had struck a necessary balance between its pursuit of diversity and the need to treat applicants equally. “Considerable deference,” he wrote in the majority opinion, “is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
Justice Kennedy’s shift intrigued (and baffled) court watchers. “His differing approach to deference [in Grutter and Fisher], whether because of a change of mind or a change of heart,” one law professor wrote, “is telling and critical to his vote and opinion.” Another legal expert, reflecting on the justice’s leftward tilt of late, dubbed him a “sphinx … whose mind has often seemed like a distant and mysterious country.”
The people who made a mark on higher education — for better or worse.
And that only makes him more interesting. In Fisher, Justice Kennedy evinced some of the same qualities that colleges claim to prize in students. One was an ability to consider evidence, of which Texas supplied plenty in support of its policy. Another was a willingness to adjust one’s thinking about the world, leaving old assumptions behind.
A few years ago, Justice Kennedy was prepared to write a sweeping opinion that would undo affirmative action, according to a recent book about his fellow justice Sonia Sotomayor. Yet as the court weighed the facts — not once but twice — he came to see Texas’ plan as legally sound and educationally beneficial.
What happened in between? Since the court took up Fisher, in 2012, the nation’s enduring racial divide has revealed itself, forcefully and often violently, on the streets of Ferguson and Baltimore, as well as campus quads. Many minority students have expressed feelings of anger and isolation, reshaping discussions of campus diversity.
All that might have influenced Justice Kennedy’s thinking, some legal observers suggest. Texas “waged a robust effort to talk not just about the policy, but the policy in context,” says Terri Taylor, senior policy and legal adviser at EducationCounsel LLC. “That helped him understand the bigger conversation that Fisher was happening in, that race matters in America, and these cases aren’t happening in a vacuum.”
Fisher doesn’t give colleges carte blanche. It does offer a guide for pursuing measurable goals via data-driven diversity strategies. Still, metrics aren’t everything, as Justice Kennedy writes. He describes how a process based solely on class rank can exclude deserving applicants, such as a student who stumbles during a family crisis only to bring up her grades: “Any single metric … will capture certain types of people and miss others.” And that’s why colleges dreamed up holistic review in the first place.
Eric Hoover writes about admissions trends, enrollment-management challenges, and the meaning of Animal House, among other issues. He’s on Twitter @erichoov, and his email address is eric.hoover@chronicle.com.
