For the second time in three years, the Supreme Court is reviewing the constitutionality of a race-conscious admissions policy at the University of Texas, Austin. While the case, Fisher v. University of Texas, raises questions specific to UT Austin, the Court’s second review could change the ways higher education institutions across the nation can legally consider race in their admissions policies. This essay considers the potential ramifications of the Court’s second review. While one cannot predict what the Court will decide, the voting patterns in the first opinion, which sent the case back to the lower court and left prior decisions upholding the constitutionality of race-conscious policies in place, may not hold. Assuming that the justices’ votes are consistent with their previous interpretations of the constitutionality of race-conscious admissions, the decision likely will depend on Justice Kennedy. This essay therefore focuses on Kennedy’s positions in previous cases addressing the use of race in education policies in which he has cast the decisive vote. The Court’s forthcoming decision will not provide easy answers to longstanding questions about how we as a society can account for race in a way that renders it less powerful in shaping life chances. However, unless informed by social science, the way Kennedy resolves the tension he perceives between the constitutional principles of liberty and equity when racial classifications are involved may introduce legal reasoning disconnected from social realities and unnecessary complications for postsecondary institutions that want to provide the educational benefits of a diverse student body.
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