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Penn Law faculty comment on Supreme Court Affirmative Action ruling

June 30, 2016

Penn Law faculty members comment to the Supreme Court ruling upholding the Affirmative Action program at the University of Texas.

 Penn Law faculty comment on Supreme Court Affirmative Action ruling.


Kermit Roosevelt, Professor of Law
Fisher doesn’t clarify much, in part because Texas had an unusual program, and in part because Kennedy wrote a somewhat obscure opinion. The most important factor going forward will be who fills Scalia’s seat–if it’s a conservative, Kennedy remains the median justice and will continue to control these cases. If it’s a liberal, the median moves to Breyer and we’ll see some very different opinions.

“It was a 4-3 decision upholding what the state of the law has been, really, for several decades, which is that universities and colleges have the discretion to take all factors of an individual’s background into account in the admissions decision; as long as we don’t make that a rigid formula or a quota we can look at the whole file. And the court upheld that principle and said that number one: building a diverse and eclectic group of students in the student body is a valid educational interest — something we certainly believe at Penn. Number two: and this is also very important to educational institutions around the country, that one component of academic freedom is that educational institutions have the discretion and decision-making authority to form our own classes of students, and that it not be dictated or micromanaged by five justices in Washington, D.C.”