Bass, Berry & Sims attorney Audrey Anderson was interviewed by Bloomberg Law Radio and featured on the November 9, 2022 episode of the Bloomberg Law Podcast discussing the two cases argued before the U.S. Supreme Court on October 31 that will impact universities’ ability to use race-conscious admissions practices. The cases are Students for Fair Admissions (SFFA) v. Harvard University and Students for Fair Admissions v. University of North Carolina (UNC).

Based on the Supreme Court’s 2003 ruling in Grutter v. Bollinger, universities are currently allowed to consider race as a factor in admissions, as long as it’s part of a holistic application process where race is only one factor and the use of race is narrowly tailored to the university’s compelling interest in educational diversity. While the oral arguments signaled the conservative majority’s likely interest in striking down Grutter, Audrey shared some insight on what that might look like and even some reasons proponents of race-conscious admissions may have optimism.

First, significant discussion in the arguments addressed a 25-year “deadline” in Justice O’Connor’s Grutter opinion where she stated an expectation that universities could achieve racial diversity without the use of race at that point. Justice Barrett, who is largely expected to rule in favor of striking down Grutter, noted that it hasn’t yet been 25 years since the ruling, which could offer a “ray of sunshine” for affirmative action supporters in that under this view race as a factor in admissions until 2028.

Justice Thomas posed questions around what diversity really means, which is reflective of his previous decisions opposing affirmative action in other contexts. Audrey posited that this could have been his invitation for advocates to change his mind, although that is an unlikely outcome.

Because Grutter precedent does not allow for the use of race quotas in admission policies, Justice Gorsuch questioned how universities can really pursue diversity without taking numbers and data into account. Audrey noted that these questions aimed at addressing how universities can have a diversity goal you can narrowly tailor admission policies to without having a number that resembles a quota. Along these lines, Justice Alito questioned how races are categorized into diverse groups to meet university goals. For example, how can the Asian American category include people whose backgrounds range from Afghani to Chinese and many other heritages. Audrey noted that this line of questioning could be focused on the implication that this practice would be suspect and raise questions over its constitutionality.

From the liberal justices, Justice Jackson (who has recused herself from the Harvard case) played prominently in the discussion with interesting commentary, Audrey noted. With much of the discussions aimed at what universities would be able to do if Grutter is overturned, all of the justices seemed to agree that applicants could write about race and overcoming discrimination in their application essays, and universities could consider race in that context but without awarding a “point” based on race. Audrey noted this is an encouraging takeaway for affirmative action proponents as it would allow for consideration of race despite SFFA’s goal for an entirely color blind process.

Finally, Audrey noted an interesting approach by some of the justices. The Court typically does not review the facts of a trial that were already affirmed by the lower appellate court, but in these arguments, the justices were deeply questioning the fact-finding by earlier judges who wrote very lengthy decisions based on voluminous records at trial.

For the full interview, you may access the Bloomberg Law Podcast episode here or wherever you get your podcast content. Additionally, read Audrey’s recap and analysis of the Court proceedings from October 31 here.