Law360 and University World News sought out McGuireWoods Chicago partner Sarah Wake to analyze the U.S. Supreme Court’s June 29, 2023, ruling striking down affirmative action admissions policies at universities across the nation.
Wake, a litigator who represents employers and institutions of higher education, told Law360 that although the court’s opinion was “more measured” than she thought it might be, it could add to a trend of pushback against diversity, equity and inclusion (DEI) initiatives around the country.
“This case doesn’t have a direct impact, but I think it will fuel continued challenges to DEI programs with non-educational-related entities,” Wake said. “It doesn’t have anything to do with employment directly because employers are already prohibited from making decisions based on race, but I think it feeds into the national context we are seeing now where DEI initiatives are under scrutiny in other places.”
Wake told University World News that while the court’s decision makes clear what university admissions offices can’t do — consider race as a standalone factor in evaluating applicants or use other factors as a proxy for race — the court provided less guidance about what remains permissible.
“It’s less clear how admissions offices can consider race as part of someone’s overall experiences without running afoul of the Constitution, and I anticipate schools will struggle with this and there will be additional legal challenges down the road,” Wake said.