The Supreme Court’s 2016 decision upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body. The vote was 4 to 3. (Justice Antonin Scalia had died a few months before, and Justice Elena Kagan was recused.)
Writing for the majority, Justice Anthony M. Kennedy said that courts must give universities substantial but not total leeway in devising their admissions programs.
“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” he wrote, quoting a landmark desegregation case from 1950. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
“But still,” Justice Kennedy added, “it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”
He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. In an interview not long after the Texas case was decided, Justice Ginsburg said it would endure.
“If Justice Kagan had been there, it would have been 5 to 3,” she said. “That’s about as solid as you can get.”
“I don’t expect that we’re going to see another affirmative action case,” Justice Ginsburg added, “at least in education.”