That’s the title of a fine opinion piece by James Taranto in the Wall Street Journal today on the BAMN and Fisher cases. The piece ends with a couple of paragraphs speculating on what Justice Kennedy will do, and I’d like to add a couple of thoughts to that discussion.
Taranto notes that Kennedy’s earlier dissent in Grutter v. Bollinger suggested at that time that his druthers were that ”the door will remain at least ajar for racial preferences.” But, as I comment, “So long as the door is left ajar, universities will drive a truck through it: That’s the clear lesson of the last several decades. The time is long overdue for the Court simply to ban preferences based on race. There may still be some cheating and some indirect weighing of race, but it will be limited to the relatively few cases that Justice Kennedy thought he was going to allow.”
I would also note that Kennedy’s earlier dissent presupposed that the educational benefits of diversity were “supported by empirical evidence.” But this is no longer so (if it ever was). See, for just some examples, the briefs here and here, and the discussions here and here.