Following Harvard University’s recent appellate win related to its race conscious admission policies, Bass, Berry & Sims attorney Audrey Anderson spoke with June Grasso on an episode of the Bloomberg Law Podcast to discuss the ruling and the ongoing legal battles over affirmative action in college admissions.

The First Circuit Court of Appeals upheld the prior district court ruling that Harvard’s affirmative action policy complies with the legal standard – mainly that its use is narrowly tailored to the purpose of furthering the educational benefits of diversity. While colleges and universities may not use race in admission decisions to meet a quota or for racial balancing, schools are able to use it as one factor toward defined educational goals that can be achieved through a diverse student body. In these cases, race can be among the special considerations a college or university uses in rating an applicant, similar to admissions offices rating students higher if they have parents who are major donors in pursuit of the educational goal to promote donations.

Despite Harvard’s victory in the case, the plaintiff in the matter, Students for Fair Admissions (SFFA), has stated that the lawsuit is on track to be heard by the Supreme Court, which appears to be SFFA’s ultimate objective. SFFA hopes the Court will overturn prior precedent and strike down affirmative action in admissions. SFFA has also filed separate suits against the University of North Carolina and the University of Texas, which would ultimately be heard by separate federal circuits with the possibility of conflicting appellate opinions, and the Supreme Court will typically take up cases when there’s a split in authority at the appellate level. Further, the SFFA has petitioned to join the Trump administration’s DOJ lawsuit against Yale University, which would keep the case alive even if the Biden administration drops the case and opens up an additional possibility for a split decision.

Audrey also notes that, regardless of future splits at the appellate level, there is precedent for the Supreme Court to review cases dealing with this issue even without conflicting opinions. This means that there’s still the possibility for the Court to consider the case based only on the November Harvard ruling.

As colleges and universities continue to monitor these cases that seemingly put the issue of affirmative action on track for intervention by the Supreme Court, it remains unknown how the current Court would rule on the matter since four current justices have not had the opportunity to rule on the issue while on the Supreme Court. Justice Kagan did not take part when the Court last took on the issue in Fisher v. University of Texas in 2016, but many expect she would agree with Justices Breyer, Ginsburg and Sotomayor that race can be used if colleges prove it is narrowly tailored and has an educational interest. Justices Gorsuch, Kavanagh and Barrett would be expected to align with Justices Alito, Roberts and Thomas who have previously said the Constitution does not allow for the use of race. However, even if these newer justices agree with that opinion, it remains to be seen whether they will overrule the Court’s prior precedent in Fisher and Grutter v. Bollinger.

The full conversation, which also aired on the international broadcast of Bloomberg Law Radio on November 16, is available in the full episode of Bloomberg Law Podcast here.