This commentary appeared in the Chronicle of Higher Education
The gasps heard in higher-education circles around midmorning on Thursday were not, as anticipated, expressions of dismay. Rather, with the U.S. Supreme Court’s 4-3 decision in Fisher v. University of Texas at Austin (Fisher II), the mood among higher-education leaders was one of apparent shock — and delight. Many had feared that the court’s hearing the case for the second time in three years would portend a significant pivot. Some had even forecast the end of affirmative action as a result.
Justice Anthony Kennedy defied most expectations, because he had never upheld a race-conscious policy during his many years on the court and had authored the first Fisher decision with a stern, reproachful pen pointed in the University of Texas’ direction. Now, in an analytically precise opinion, he reaffirmed a long line of precedents, making it clear that institutions of higher education may consider race and ethnicity in the design of their admissions policies so long as those policies are based on mission-driven goals of educational diversity, are well crafted to achieve those goals, and are justified by demonstrable need.