August 16, 2023

Complying with Students for Fair Admissions: U.S. Departments of Education and Justice Issue Joint Guidance for Institutions

At a Glance

  • On August 14, 2023, the U.S. Department of Education and the Department of Justice jointly issued guidance to help postsecondary schools comply with the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al.

On August 14, 2023, the U.S. Department of Education (ED) and the Department of Justice (DOJ) jointly issued guidance to help postsecondary schools comply with the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al. (together, SFFA). The SFFA decision held that race-conscious admissions policies violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. While the departments’ guidance provides institutions with suggested approaches for supporting student body diversity, it also leaves open other important questions, including the funding and use of race-conscious scholarships and other financial assistance.

Guidance From Dear Colleague Letter

In the accompanying Dear Colleague Letter, the departments explicitly reaffirmed their “commitment to ensuring that educational institutions remain open to all, regardless of race,” stating that “[l]earning is enriched when student bodies reflect the rich diversity of our communities,” and noting that “[r]esearch has shown that such diversity leads to, among other things, livelier and more informative classroom discussions, breakdown of prejudices and increased cross-racial understanding, and heightened cognitive development and problem-solving skills.” The departments also stated that they “stand ready to support institutions that recognize that such diversity is core to their commitment to excellence, and that pursue lawful steps to promote diversity and full inclusion.” In their guidance, the agencies acknowledged that there are “no simple answers for unwinding the entrenched roots and sprawling branches of segregation and discrimination,” and stressed their ongoing “commitment to vigorous enforcement of Titles IV and VI of the Civil Rights Act of 19642 from early childhood through postsecondary education.”

Additional Q&A

The departments also provided a Q&A file providing information about how schools can achieve and maintain diverse student bodies while complying with SFFA’s holding. They reminded institutions that under SFFA, it is impermissible to “consider an applicant’s race in and of itself as a factor in deciding whether to admit the applicant.” However, they reiterated the court’s language emphasizing that its opinion should not “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.” 600 U.S. ___ (2023) (slip op. at 39). Through the use of a “holistic application-review process,” colleges and universities can provide opportunities for applicants to thoroughly describe their lived experiences, values, achievements, and other personal perspectives, including those related to race. ED and DOJ noted that this type of review, focusing on personal experience and individual attributes, could extend to third-party recommendations as well as student essays. For example, the departments note that a recommendation from a guidance counselor, describing an applicant’s demonstrated strength in overcoming “feelings of isolation as a Latina” in order to join the debate team at “an overwhelmingly white high school” would constitute a sufficiently individualized yet race-aware data point for consideration in the admissions process. ED and DOJ encouraged institutions to review and evaluate their current policies and practices to confirm their compliance with SFFA.

The departments also stated that “institutions of higher education may continue to articulate missions and goals tied to student body diversity and may use all legally permissible methods to achieve that diversity.” To assist institutions in implementing permissible and practical approaches to achieve student body diversity, they described the following four options. The departments specifically emphasized that these four practices may be used but are not a comprehensive list of possible approaches. The practices include:

Targeted outreach, recruitment and pathway programs: To assist in obtaining a diverse applicant pool, the departments note that institutions are not required “to ignore race when identifying prospective students for outreach and recruitment,” so long as such targeted outreach does not result in any preferential admissions process or category. In fact, institutions “may offer pathway programs that focus on increasing the pool of particular groups of college-ready applicants in high school and career and technical education programs.” If the institution “awards slots or otherwise selects students for participation in its pathway program based on non-racial criteria,” then “the institution may give pathway program participants preference in its college admissions process.” Institutions may not, however, “award slots in pathway programs based on an individual student’s race” in a manner inconsistent with SFFA.

Collection of demographic data: The departments’ guidance emphasizes that schools may continue to obtain this information and to use it for permissible purposes, but not for consideration in terms of admission. Institutions must also “ensure that the racial demographics of the applicant pool do not influence admissions decisions.” The departments cautioned that while “the Court’s decision does not prohibit institutions from reviewing such data for other purposes [that is, other than admissions decisions] […] institutions should consider steps that would prevent admissions officers who review student applications from using the data to make admissions decisions based on individual applicants’ self-identified race or ethnicity.”

Evaluation of admissions policies: The Q&A guidance document here reminds institutions that their educational mission remains within their own purview and encourages schools to “determine which factors in a holistic admissions process most faithfully reflect institutional values and commitments.” For instance, the departments notes that “an institution committed to increasing access for underserved populations may seek to bring in more first-generation college students or Pell- grant eligible students, among others.” The departments also noted that the court’s decision “does not prohibit admissions models and strategies that do not consider an individual’s race, such as those that offer admission to students based on attendance at certain secondary or post-secondary institutions or based on other race-neutral criteria.” The departments also stated that “institutions may admit all students who complete degree programs at certain types of post-secondary institutions (e.g., community colleges and other institutions that are more likely to enroll students from economically or educationally disadvantaged backgrounds) and meet certain criteria (e.g., minimum GPA).”

And the departments further noted that “where feasible, institutions may also admit all students who graduate in the top portion of their high school class.” Finally, the departments noted: “As part of their holistic review, institutions may also continue to consider a wide range of factors that shape an applicant’s lived experiences. These factors include but are not limited to: financial means and broader socioeconomic status; whether the applicant lives in a city, suburb, or rural area; information about the applicant’s neighborhood and high school; whether the applicant is a citizen or member of a Tribal Nation; family background; parental education level; experiences of adversity, including discrimination; participation in service or community organizations; and whether the applicant speaks more than one language.”

Student yield and retention strategies and programs: To encourage both diversity and inclusivity on campus, the departments noted that schools can “foster this sense of belonging and support through its office of diversity, campus cultural centers, and other campus resources if these support services are available to all students.” Schools may also provide or support “clubs, activities, and affinity groups—including those that have a race-related theme—to ensure that students have a space to celebrate their shared identities, interests, and experiences, so long as the clubs, activities, and affinity groups are open to all students regardless of race.”

Important Questions Remain Open

While the departments’ guidance describes many permissible strategies to admit and retain a diverse student body and vibrant campus, certain important questions remain unaddressed. Most notably, neither ED nor DOJ provided guidance on the race-conscious use of scholarship funding or other financial assistance in order to promote the matriculation and retention of students of color. To the extent that such students may also be socioeconomically disadvantaged, it is possible that race-neutral alternatives based on income, geography, or other factors could help achieve similar goals, but neither ED nor DOJ has indicated whether such race-neutral alternatives are in fact required. Institutions should note this does not mean that that such practices are not covered by the court’s decision or by the departments’ guidance, only that such matters are not addressed.

Please do not hesitate to contact a member of our affirmative action task force or education team if you have any questions regarding either of the matters discussed above, or other education regulatory matters.

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