Fisher II reaffirmed the continuing validity of the logic of Bakke and the holding in Grutter that diversity is a compelling educational interest. As such it serves as the predicate for continuing the use of race, ethnicity, and national origin in admissions programs that seek to attain student body diversity. It is figured prominently, for example, in the opinions of both the District Court and Court of Appeals in the Harvard College litigation and will presumably be a focus for the Court now that it has decided to hear the case.
The real importance of Fisher II may well provide to be the manner in which Justice Kennedy set out the case for such admissions policies. An institution must, for example tie their adoption to its particular mission. It must also continually monitor and assess to make certain that the preferences remain necessary. And it must look with care at their actual effects, both positive and negative. Perhaps these are not criteria for ending affirmative action altogether, but they do signal the Supreme Court’s interest in determining at which point race based factors should no longer be considered.