McGuireWoods Chicago partner Sarah Wake provided comments to national news organizations covering the pending U.S. Supreme Court appeals challenging affirmative action in the admissions process at Harvard University and the University of North Carolina (UNC).
In a Jan. 24, 2022, Law360 article titled “Harvard’s Daunting High Court Task: ‘Get to 5 Votes,’ ” Wake said the court may find a solution that does not completely overturn its 1978 ruling in University of California v. Bakke, which sanctioned the use of race as a factor in admissions. Instead, the court could impose “guardrails” to make sure race is one piece of a holistic admissions approach that also takes other factors into consideration.
“I think there is a middle ground here,” Wake said. “The court could opine that there is a compelling interest in achieving diversity; however, the way in which the schools executed it was not narrowly tailored.”
Wake also discussed the issue in a Jan. 24, 2022, article published in Diverse Issues in Higher Education titled “Supreme Court Will Hear Affirmative Action Cases. What Happens Next?” She commented that lower court rulings upholding the use of affirmative action at Harvard and UNC make the high court’s decision to hear both again stand out.
“The Court’s agreement to hear the cases involving Harvard and UNC is incredibly significant, especially because there is not a circuit split on the issue and the lower courts agreed that the way in which the schools considered race is permissible under prior Supreme Court precedent,” Wake said.
Given the composition of the court and its apparent willingness to reconsider well-established precedent, Wake told the publication, ending or at least weakening race-conscious affirmative action in higher education is a possibility.
Wake, a member of McGuireWoods’ labor and employment practice, is a litigator who represents employers and institutions of higher education in matters related to affirmative action, among others. Prior to joining McGuireWoods she served as in-house counsel at a private research institution, where she worked on issues related to diversity, equity, and inclusion; collegiate athletics; and student affairs. She recently co-authored “Supreme Court to Weigh Limited Use of Race in Admissions, Antitrust Case Against Elite Schools,” a McGuireWoods legal alert discussing the issue.