Guidance Released on Heels of SCOTUS Students for Fair Admissions Decision

The Biden Administration released guidance in response to the Supreme Court's June 2023 decision on race-conscious university admissions processes, advising higher education institutions to sustain diversity initiatives within legal boundaries.

Last week, the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division together issued a “Dear Colleague” letter and a Q&A document concerning diversity initiatives at higher education institutions. This guidance comes on the heels of the Supreme Court’s June 2023 decision, where the Court rejected race-conscious university admissions policies in two cases: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199; and Students for Fair Admissions, Inc. v. University of North Carolina et al., No. 21-707.

In these cases, the Supreme Court held that Harvard’s and the University of North Carolina’s consideration of race in their undergraduate admissions processes was unlawful, violating the Equal Protection Clause of the Fourteenth Amendment and Title VI or the Civil Rights Act of 1964. The Court further held that the admissions programs applied stereotypes to some races—considering the applicant’s perceived life experiences and what he or she might bring to the campus environment.

While the Court made it clear that “nothing in [its] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” some schools will now need to re-evaluate their current practices to ensure they comply with the decision. The decision may also impact inclusion programs and diversity initiatives across colleges and universities, including financial aid, recruitment, and retention plans for minority students.

The guidance surrounding the opinion aims to provide higher education institutions with insight on how to they may lawfully pursue efforts to recruit and admit diverse students. Institutions are free to consider a quality or characteristic of an applicant described in his or her admissions application, provided that the quality or characteristic is considered on the basis of that particular individual, and not on the basis of race.

Diversity strategies and guidance set forth by the Department include:

• targeted outreach (provided that the outreach does not provide preference to targeted prospective students in the admissions process)
• gathering demographic data (so long as the school’s use of the data is consistent with privacy laws and does not influence admission decisions)
• evaluating admissions policies (including whether practices such as legacy admissions, standardized tests, and prerequisite courses achieve the school’s diversity goals) and
• programs to aid in student retention (such as clubs and affinity groups with race-related themes)

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