Justice Anthony M. Kennedy’s Retirement Has Major Implications for Equal Rights and Higher Education

On June 27, U.S. Supreme Court Justice Anthony M. Kennedy announced plans to retire later this summer. Appointed by Ronald Reagan, Kennedy is a conservative whose swing vote was the deciding factor in a number of landmark cases affecting equity and diversity in higher education as well as in American society more broadly.

While President Trump has yet to announce an official nominee to replace Kennedy, it is generally expected that the president will select a candidate who does not share their predecessor’s progressive stance on social issues. Many believe that Justice Kennedy’s vacancy is likely to swing the Supreme Court heavily to the right on issues ranging from gay rights to women’s rights, free speech to affirmative action.

Affirmative action is one issue affecting higher education over which Justice Kennedy held considerable influence. He authored the two most recent Supreme Court decisions upholding colleges’ and universities’ right to consider race in admissions. The latest case took place in 2016, when the court voted 4-3 in favor of the use of affirmative action in admissions at University of Texas at Austin. While he didn’t always vote in favor of all affirmative action practices, his was the deciding the vote in the landmark case of Fisher v. University of Texas, which allows for affirmative action in college admissions.

Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston, has suggested to the media that the use of race-based admissions practices is unlikely to be revisited in the courts anytime soon. Other experts predict that Kennedy’s absence will have negative consequences on affirmative action should a current lawsuit challenging Harvard University’s admissions practices make it to the Supreme Court. The school has been accused of discriminating against Asian-American applicants and essentially engaging in racial quotas in selecting its freshman classes.

Another issue that Justice Kennedy significantly impacted was free speech and the interpretation of the First Amendment. In one prominent case, Kennedy was the swing vote in determining that Hastings College of Law did not violate a Christian student group’s right to free speech when it refused to officially recognize the group because they excluded gay students. Many legal experts predict that conflicts over what constitutes free speech in public places, including college campuses, are likely to be brought to the Supreme Court in the near future, with some already lamenting the loss of Kennedy’s moderate voice regarding such disputes.

With respect to women’s rights, the American Association of University Women (AAUW), issued a press release stating that the fight for gender equity “hangs in the balance with this Supreme Court vacancy,” noting that Kennedy’s replacement will have a profound impact on the “health, education, and economic security of women and girls for decades to come.”

Women’s reproductive rights are at the center of the national conversation about Kennedy’s replacement. The Planned Parenthood Federation of America issued its own press release asking its supporters to urge the Senate to reject any Supreme Court nominee who “would strip people’s individual rights and freedoms,” including abortion rights. On the other side of the abortion debate, Students for Life — a national coalition of anti-abortion student organizations — issued a statement celebrating Kennedy’s retirement as an integral step in overturning Roe v. Wade. The group’s president, Kristan Hawkins, told NPR that the announcement of Justice Kennedy’s retirement was “a day that [they’ve] been waiting for.”

LGBTQ+ activists have also expressed concern over Kennedy’s retirement, given his strong track record of supporting their community. Kennedy’s vote was key to legalizing gay marriage, and his support for LGBTQ+ rights goes back several decades. In 1996, for example, he voted to overturn a Colorado law that allowed local jurisdictions to discriminate against individuals based on their sexual orientation.

As with free speech, affirmative action, and women’s rights, more cases that concern the LGBTQ+ community are likely to come to the Supreme Court once a new justice is elected.