Today’s Supreme Court decision upholding racial preferences in admissions at the University of Texas (UT) has potentially far-reaching implications. It might well license extensive racial discrimination in college admissions policies. But its impact may be limited by hedging in the majority opinion by Justice Anthony Kennedy.
When Fisher v. University of Texas first reached the Supreme Court in 2013, the Court chose not to issue a definitive ruling on the constitutionality of the Texas admissions system. An unusually large 7-1 majority reiterated the principle that universities can sometimes use racial preferences in order to promote the educational benefits of “diversity,” but also broke new ground by emphasizing that courts should apply “strict scrutiny” to such programs without giving any deference at all to the judgment of university officials. When the case was remanded back to the US Court of Appeals for the Fifth Circuit, the lower court again upheld the University of Texas program, and failed to apply the kind of nondeferential scrutiny the Supreme Court required. The Supreme Court chose to review the case again. After the oral argument in December, most experts, myself included, expected that the Court would apply strict scrutiny and strike down the Texas plan. However, that did not happen, possibly because of the unexpected death of Justice Antonin Scalia, who would almost certainly have voted to invalidate Texas’ program.
