McGuireWoods’ Sarah Wake Comments on High Court Affirmative Action Cases

November 3, 2022

Roll Call and Law360 were among the national media outlets that sought out McGuireWoods Chicago partner Sarah Wake for analysis of two of the mostly closely watched cases of the U.S. Supreme Court’s current term.

The high court is considering whether the use of race in college admissions decisions is unconstitutional or violates federal anti-discrimination law.

Wake, a litigator who represents employers and institutions of higher education, told Roll Call in an Oct. 28, 2022, story that the cases hinge on whether the justices find that colleges and universities have a “compelling interest” in creating a diverse student body that justifies the limited use of race in admissions, and whether colleges’ policies satisfy that test.

Wake told Roll Call it’s possible the justices will write an opinion broadly enough to “have a carryover in the employment context, in terms of how willing employers are to consider race in the application and employment process.”

In an Oct. 31, 2022, story in Law360 summarizing that day’s oral arguments, Wake said that the justices’ conversation around an “end date” for the use of race in college admissions was the most interesting aspect of the nearly five-hour arguments, noting that it could have a way of moderating any ruling against the universities.

“This line of questioning suggests to me that some of the justices may be willing to hold there is still a compelling interest in assembling a diverse student body,” and that the schools considered race in admissions was appropriately narrowly tailored, Wake told Law360. “But this practice should have some end point.”