The court agrees.

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Affirmative Action Is Here to Stay

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In a major victory for affirmative action on Thursday, the Supreme Court has upheld the use of race by the University of Texas as part of its admissions policy aimed at educational diversity. The relatively compact decision by Justice Anthony Kennedy makes no mention of the eventual disappearance of affirmative action, as Justice Sandra Day O’Connor did in 2003, the last time the court issued an important decision on the topic.

QuickTake Affirmative Action

So long as universities carefully articulate why they must consider race to achieve a diverse student body, it would seem that affirmative action in higher education is here to stay. And Kennedy’s opinion will now replace O’Connor’s as the go-to precedent on the subject.

The opinion is a surprise for several reasons. For one thing, the case had been sent back to the lower courts before. At the court's oral argument, Kennedy complained that the record didn’t seem to have changed much despite the case being remanded – a signal that he was considering doing it again.

The most likely explanation for Kennedy’s change in attitude is the court’s composition. When the oral argument took place, the late Justice Antonin Scalia was still on the court, and because Justice Elena Kagan wasn't participating, the case stood a strong chance of being deadlocked 4 to 4. With Scalia’s death, Kennedy was able to write a majority opinion for a 4-to-3 court.

Some commentators, myself included, speculated that Kennedy might not want to decide such a major issue with a court of just seven justices. Apparently that didn’t worry him. This may be an unintended effect of the Senate’s refusal to vote on President Barack Obama's nominee to fill Scalia's seat, Judge Merrick Garland. The justices, including Kennedy, now know that they may be in for an extended period of short-handedness. That presumably weakens the concern that major decisions should be delayed until all nine justices are present and voting.

Another reason for surprise is that in the past, the justices have seemed to suggest that affirmative action in higher education had a sell-by date. In her opinion 13 years ago in Grutter v. Bollinger, O’Connor speculated that affirmative action would cease to be necessary in 25 years. Kennedy has seemed unwilling to buy into the Grutter decision unequivocally. That led court watchers to think that Kennedy wasn’t certain what he wanted his legacy on affirmative action to be.

Now Kennedy has assured that his affirmative action legacy is going to be a liberal one – not so revolutionary as his gay-rights jurisprudence, but outside the conservative camp.

In particular, Kennedy’s opinion puts the use of race as one factor in a holistic admissions process on firm constitutional ground.

Kennedy said that a university using race to achieve diversity must frequently re-evaluate its practices and its results. He added the caveat that “formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits.”

But the thrust of the holding was that a university can consider race to produce a diverse student body provided its goals are not “amorphous.” Notably, there’s no element in Kennedy’s opinion suggesting that affirmative action is any sort of remedy for past wrongs. The diversity goal is freestanding, which is why it’s also not time-limited.

Kennedy approved all the university’s stated goals: facilitating cross racial understanding, training a cross-section of leaders with legitimacy in the eyes of the public and creating an academic environment for “robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.”

To my mind, these goals are actually pretty amorphous – but they are also good values that are familiar to people who work in higher education. Other universities can now state that these are their goals and know that they are covered by the Supreme Court.

The Texas plan is fairly unusual in that it admits 75 percent of the students in the university by taking the top 10 percent of every graduating public high school class in Texas. Thursday’s case involved the remaining 25 percent of the class, which is admitted through the more familiar process of weighing various kinds of qualifications.

Kennedy said that the “sui generis” nature of the Texas scheme “may limit its value for prospective guidance.” But I think that is wrong. The court endorsed the details of Texas’s diversity rationale, and that part of the opinion should apply regardless of whether a university uses the holistic method for all or part its admissions.

Kennedy’s opinion is therefore more than just an exercise in judicial restraint. It’s a judicial embrace of the modern diversity rationale for racial affirmative action in higher education. As a historical matter, that rationale developed as a result of Supreme Court jurisprudence. Today it’s widely believed and accepted -- including by Kennedy and the majority.

  1. It’s a precedent because it’s a majority, even though only four justices voted for it. There’s nothing magic about the number five. Kagan recused herself because she worked on the case when she was Solicitor General.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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