What does Justice Kennedy’s retirement mean for HE?

Justice Anthony M Kennedy’s announcement that he planned to retire this summer from the United States Supreme Court set off legal and political shockwaves last Wednesday in the nation’s capital. The open seat will give President Donald Trump an opportunity to appoint the second justice of his term and set the court on a more conservative footing for, possibly, decades.

[This is an article from The Chronicle of Higher Education, America’s leading higher education publication. It is presented here under an agreement with University World News.]

But lawyers and legal scholars have mixed opinions on how much Kennedy’s departure could affect higher education.

“I think that it really depends on what the new court’s agenda is,” said Joshua WB Richards, a lawyer who helps lead the higher education practice with the firm Saul Ewing Arnstein and Lehr, in Philadelphia. “If the justices, with a new conservative majority, think they have a mandate to start reversing precedent, they may do so.”

Early indicators from the court point to a willingness to overturn previous rulings, Richards said.

Last year Trump selected Neil M Gorsuch, a conservative from the US Court of Appeals for the 10th Circuit, to fill the seat of the late Antonin Scalia. Although Scalia died in February 2016, nearly a year before President Barack Obama would leave office, the Republican majority in the US Senate refused to take up a nomination.

Gorsuch has already provided key votes for the court’s conservatives on issues that have caused deep concern for many in higher education, including upholding Trump’s travel ban and striking down mandatory membership fees for public sector unions.

“Over all, the retirement of Justice Kennedy could have troubling implications for higher education,” said Neal H Hutchens, a professor of higher education at the University of Mississippi.

Kennedy was nominated to the court in 1987 by President Ronald Reagan, a Republican. And on most matters that concern higher education, he voted with the conservatives, said Richards.

But he was viewed as a moderate and, late in his career, often played the role of a swing vote among the nine justices, giving a majority to either the court’s conservative or more liberal wings.

“I am dazed right now,” said Michael A Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston.

“On balance he has a record that is substantial, and it was always hard to categorise him,” Olivas said. “I don’t think there’s any centre left after this.”

A key vote

Kennedy was a key vote in three relatively recent rulings on higher education issues.

In 2016, Kennedy surprised court watchers and the higher education establishment, writing a majority opinion that upheld the use of race as a factor in the college admissions process.

That ruling, in Fisher v University of Texas at Austin, was a new position for the California native, who had dissented from the court’s 2003 opinion that upheld race-conscious admissions at the University of Michigan Law School (Grutter v Bollinger).

With Fisher, the issue of affirmative action in college admissions appears to be settled for now, Olivas said, and is unlikely to be revisited by the court.

But that view is not universally shared. The Justice Department has begun an investigation into alleged racial discrimination against Asian-American applicants by Harvard University. And some believe that the Trump administration will use that inquiry as a means to further constrain or to eliminate the use of race in admissions.

Opponents of affirmative action have not given up their fight against that policy, Hutchens said. “With the appointment of a new conservative justice,” he said, “it seems that it would be tempting to test those waters.”

Richards said that Kennedy’s 2016 opinion supported more than just race as a factor in admissions; it gave deference to the autonomy of institutions to make those policies. And there is a definite trend away from that kind of deference, he said.

“In that regard,” Richards said, “institutions had an ally in Kennedy.”

Another key Kennedy vote was on the issue of free speech on campuses. Kennedy joined the court’s four liberal justices in a ruling that found a public law school had not violated the First Amendment in denying official recognition to a Christian student group that effectively excluded gay students from membership based on their beliefs and behaviours.

Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center, said that campus conflicts over free speech are likely to end up in front of a future Supreme Court. And in that case, Kennedy’s moderate voice will be sorely missed, she said.

Kennedy would be likely to try to balance the rights of controversial speakers on a campus with the safety of students and faculty members, said Perry, who was a judicial fellow at the Supreme Court and also worked as a researcher for a former chief justice, William H Rehnquist.

“We know that conservatives of the Trump ilk are opposed to political correctness,” Perry said.

Kennedy also wrote the majority opinion in the case Garcetti v Ceballos, which said that public employees can be disciplined for speech made while carrying out their official duties. That ruling left open the question of whether the court would stand by previous rulings upholding academic freedom of college faculty members.

Since the Garcetti ruling, Hutchens said, lower courts have taken contradictory views on the issue of academic freedom. “In general, conservative justices have been in favour of the rights of employers,” he said, and that could spell trouble for faculty members who speak out on controversial issues.

“At a time when tenure is in retreat,” he said, “this is not a golden age for faculty autonomy.”

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld or email him at eric.kelderman@chronicle.com.