Bass, Berry & Sims attorney Audrey Anderson spoke with June Grasso, host of the nationally broadcasted Bloomberg Law radio show and the Bloomberg Law Podcast, to discuss the latest legal challenges to remove race conscious admission practices at U.S. colleges and universities.

While advocates against affirmative action in college admissions argue for what they see as purely objective decisions related to grades and test scores, Audrey said the Supreme Court ruled in Grutter v. Bollinger that schools have the first amendment right to choose students best suited for their institutions, which would not have to be based only on academic measures. Further, universities are able to build a student body that they believe will provide their students with the educational benefits of diversity.

Lawsuits that have been filed by Students for Fair Admissions (SFFA) against Harvard, the University of North Carolina and the University of Texas are part of a legal strategy to have affirmative action in higher education considered by the Supreme Court again. The First Circuit Court of Appeals is currently reviewing the Harvard case and the other two are likely to end up in different federal appeals courts, which could lead to differing opinions. These potential conflicts among the circuits increase the likelihood that the Supreme Court would step in. If heard by the Court, it is possible that a conservative majority could strike down affirmative action without even reversing the decision in Grutter v. Bollinger, Audrey said, noting that Justice O’Connor expressed that she did not expect there to be a need for affirmative action forever. This sentiment could give the Court precedent to rule that there is no longer a need for race conscious admissions practices.

Audrey also discussed the Department of Justice’s recent letter to Yale University that suggested the school is violating Title VI by using race conscious admissions practices. In letters like this, government agencies would typically offer specifics on how the recipient is violating the law, as well as guidance and a timeline to come into compliance. The letter to Yale represented a step-up in aggression by omitting such specifics and offering a short timeline before threatening to file suit, which Audrey suggested could be part of a strategy to  get a lawsuit on the books before a possible change in administration following the election.

To listen to the full discussion, please click here for the October 2 episode of the Bloomberg Law Podcast titled “Conservatives Step Up Attack on Affirmative Action.”