“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,” Justice Anthony Kennedy wrote in a Supreme Court opinion two years ago. The University of Texas, he a majority of justices concluded, had met this challenge with its admissions policies. The 4-3 ruling in 2016's Fisher v. University of Texas effectively meant that American universities could lawfully consider racial diversity when admitting new students as long as Kennedy, the court's swing justice, remained on the court.
Now Kennedy is gone, and with him, a fifth vote on the Supreme Court to uphold the constitutionality of such admissions policies. Justice Brett Kavanaugh's confirmation all but guarantees that the court will revisit the issue in the near-future. His presence may also give the court's conservative wing the votes it would need to chip away at 40 years of precedents affirming that American higher education has a compelling interest in ensuring a diverse student body.
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