Supreme Justice Anthony Kennedy’s education legacy was most profound in the area of racial preferences.
A moderating force among Court’s conservatives, Kennedy’s retirement removes that influence. As a result, we may see an end to permissible considerations of race in voluntary college and K-12 enrollment plans. Two key decisions may fall.
In Fisher v. University of Texas, 579 U.S. – (2016), Kennedy’s majority opinion approved an admissions plan that, without numerical quotas or abstract notions of diversity, holistically took race into account based upon specific goals and considerations for a portion of applicants. applicants . No radical approach, even the conservative Fifth Circuit had viewed the plan favorably.
But Chief Justice Roberts and Justices Thomas and Alito opposed the plan against an unusually thin 4-3 majority after Justice Scalia died and Justice Kagan recused herself. With the addition of Justice Gorsuch and a new Trump appointee on the bench, the remaining members of the Fisher majority are weakened.
Whether there is an appetite to revisit the issue remains to seen but the presence of a new justice opposed to racial preferences could tempt litigants to once again raise the issue. The case of Harvard’s alleged bias against Asian applicants, now in the lower courts, may present the opportunity.”
The future of voluntary racial preferences in pre K-12 education is even more tenuous. Kennedy’s was the deciding concurrence in Parents Involved v. Seattle School District No. 1, 551 U.S. 701 (2007). There, his was the fifth vote creating the majority finding against voluntary plans in Seattle and Louisville that used race as a tie-breaker to promote diverse school enrollments.
While others in the majority would have barred racial considerations entirely from such plans, Kennedy found that though the particular plans ran afoul of the Fourteenth Amendment’s Equal Protection Clause, he could support a plan “without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.”
This cryptic suggestion that some unexplained plan to promote racial diversity in the nation’s public schools might be constitutionally acceptable has tantalized advocates ever since and is the underpinning of Obama-era Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools.
Hopes to preserve and even extend these practices may have died with Kennedy’s announced retirement.
David C. Bloomfield is Professor of Education Leadership, Law, and Policy at Brooklyn College and The CUNY Graduate Center. He is the author of American Public Education Law, 3d edition and other works.