On Aug. 14, 2023, the U.S. Departments of Justice and Education (DOJ and ED) issued guidance to institutions of higher learning concerning the U.S. Supreme Court’s landmark decision in Students for Fair Admissions, Inc. v. Harvard College and University of North Carolina (SFFA) on the use of race as a factor in collegiate admissions. DOJ and ED structured their guidance as a three-part Q&A intended to assist colleges and universities that receive federal funding in implementing admissions programs consistent with the SFFA decision. Although the guidance does not have the force or effect of law, it provides important insight in how the federal government is interpreting the decision.
Question 1: What did the Supreme Court decide?
The new guidance describes the Supreme Court’s holdings in SFFA to include that:
- Harvard College and the University of North Carolina at Chapel Hill’s admissions programs unlawfully considered individual students’ race in determining offers of admission.
- The schools’ asserted interests in the educational benefits of diversity were not sufficiently measurable and “could not be subjected to meaningful judicial review.”
- The schools did not articulate a meaningful connection between the “means they employed and the goals they pursued.”
- The programs disadvantaged some racial groups and employed racial stereotypes by focusing on an applicant’s race alone.
- The programs lacked a “logical end point” that would assist courts in determining if the diversity goals had been achieved and were no longer necessary.
Question 2: In what ways can institutions of higher education consider an individual student’s race in admissions?
The guidance states that the SFFA decision prohibits race in and of itself from being a factor in an admission decision, but that institutions may still use holistic application-review processes and consider “how applicants’ individual backgrounds and attributes — including those related to their race, experiences of racial discrimination, or the racial composition of their neighborhoods and schools — position them to contribute to campus in unique ways.” The guidance emphasizes, however, that admission decisions must be based on “that student’s” particular qualities as an individual (versus experiences or background factors that may apply to a demographic group generally), and not be on the basis of race.
The guidance suggests that institutions could, for example, appropriately consider:
- an applicant’s explanation of what it meant to be the first Black violinist in his city’s youth orchestra;
- an applicant’s account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent;
- a recommender’s description of how an applicant conquered her feelings of isolation as a Latina student on an overwhelmingly white high school debate team; or
- an applicant’s discussion of how learning to cook traditional Hmong dishes from her grandmother sparked her passion for food and nurtured her sense of self by connecting her to past generations of her family.
Question 3: Can institutions of higher education continue to take other steps to achieve a student body that is diverse across a range of factors, including race and ethnicity? If so, how?
The guidance clarifies that institutions of higher education may continue to have missions and goals tied to student body diversity and may use all legally permissible methods to achieve that diversity. The guidance notes that the SFFA decision did not specifically address steps institutions may take to achieve diversity, but describes how the federal government believes several existing practices may be lawfully used to achieve such purposes.
- Targeted Outreach, Recruitment and Pathway Programs. The guidance states that, per DOJ and ED’s current perspective, universities can continue to consider race (as well as other factors like geographic residency, financial means and socioeconomic status, family background, and parental education level) in identifying students for outreach and recruiting, as long as targeted groups are not given preference in the admissions process. In addition, the guidance explains that institutions may operate pathway programs that aim to increase the diversity of the pool of college-ready applicants in high school, career and technical education programs. For example, a school may partner with a high school to offer mentoring or programming throughout the year to enhance exposure for the high school students. Universities also may offer preference in admissions to students who participate in such pathway programs, but only if the institution selects students for participation in the pathway program based on nonracial criteria — for example, if all 11th graders at a particular school are eligible to participate in the pathway program.
- Collection of Demographic Data. The guidance provides that institutions may continue to collect and utilize demographic data, including race, as long as they comply with applicable state and federal privacy laws and do not use data related to race to influence admissions. It provides the following examples of permissible uses: reviewing a demographic breakdown of student applicants to help the institution develop, review and refine outreach, recruitment and pathway programs targeted to meet the institution’s needs; reviewing demographic data related to student admissions to aid institutions in ensuring that the admission practices are nondiscriminatory; and utilizing demographic data related to enrollees and graduates to provide context for development, review and assessment of student programming needs.
- reviewing a demographic breakdown of student applicants to help the institution develop, review and refine outreach, recruitment and pathway programs targeted to meet the institution’s needs;
- reviewing demographic data related to student admissions to aid institutions in ensuring that the admission practices are nondiscriminatory; and
- utilizing demographic data related to enrollees and graduates to provide context for development, review and assessment of student programming needs.
- Evaluation of Admissions Policies. The guidance states several ways that institutions may review their admissions processes to reflect institutional values and commitments. For example, per DOJ and ED, institutions may consider whether legacy preferences “run counter to efforts to promote equal opportunities for all students.” They also may investigate whether the mechanics of their admissions processes — such as admission fees or early decision timelines — are inadvertently screening out qualified applicants. The guidance reasons that the SFFA decision does not prohibit the use of certain race-neutral admissions strategies for obtaining a diverse range of backgrounds and experiences. The guidance offers as examples (a) policies that offer admission based on attendance at certain secondary or post-secondary institutions (e.g., community colleges likely to enroll an economically disadvantaged group) and have a minimum GPA; and (b) policies that admit all students who graduate in the top portion of their high school class.
- Student Yield and Retention Strategies and Programs. The guidance indicates that institutions may continue to provide support services to underrepresented students through offices of diversity, campus cultural centers and other campus resources as long as the support services are available to all students. Similarly, the guidance explains that support clubs, activities and affinity groups with race-related themes are still permitted, as long as they are open to all students regardless of race.
Takeaways
The new guidance provides helpful information to institutions of higher education regarding the DOJ and ED’s current interpretation of SFFA and how those agencies are likely to implement the decision in federal programs covered by Title VI.
That said, the guidance expressly disclaims the force and effect of law, does not impose new legal requirements and does not bind the DOJ or ED in the exercise of their discretionary enforcement authorities. For that reason, the guidance document should not be understood to provide any “safe harbor” for implementing the described strategies for pursuing student body diversity. Further, plaintiff groups and others may disagree with many of the Q&A responses — and are actively pursuing litigation to the contrary.
With this in mind, educational institutions should seek counsel in crafting any admission strategies that might be seen as attempting to evade the limitations imposed by the SFFA decision, such as employing any selection criteria for admissions or pathway programs that could be characterized as proxies for race. Education leaders also should continue to be mindful of other limits on diversity, equity and inclusion efforts and ensure that processes comply with not only federal, but state laws as well.
For additional information or questions about the information contained in this legal alert, or for help analyzing the scope and impact of the SFFA decision for your organization, please contact the authors, your McGuireWoods contact, or a member of McGuireWoods’ education, affirmative action, or labor and employment teams.