January 05, 2024

U.S. Department of Education Publishes Guidance on Permissible Strategies to Increase Diversity and Opportunity in Higher Education

At a Glance

  • After the Supreme Court’s ruling in Students for Fair Admissions, postsecondary institutions may still pursue institutional objectives such as diversity, equity and inclusion.
  • The U.S. Department of Education published a report describing various permissible ways to pursue such objectives.
  • Targeted recruitment, pathway programs, program affordability and simplified application processes are among the many options that the report encourages institutions to consider adopting.

In the wake of the U.S. Supreme Court’s decision in Students for Fair Admissions, many postsecondary institutions have engaged in a review of their recruiting, admissions, and other policies and procedures. To guide postsecondary schools as they advance their institutional objectives while complying with the Court’s ruling, the U.S. Department of Education (the Department) recently published a report, “Strategies for Increasing Diversity and Opportunity in Higher Education,” outlining permissible means to improve equity, inclusion and diversity on campus, such as through:

  1. Investing in targeted recruitment, outreach and pathway programs
  2. Giving meaningful consideration in admissions to the adversity students have faced and ending practices that hinder socioeconomic and racial diversity
  3. Increasing affordability of higher education, including through need-based aid and simplifying student aid application processes
  4. Cultivating welcoming and supportive environments for students to increase retention and completion rates

Pursuing Targeted Recruitment Programs

Targeted Outreach and Pathways Programs

The Department stated that institutions could establish, expand and prioritize targeted outreach and pathways programs in communities of low-income students and students of color. Institutions can choose to partner with schools that enroll large numbers of underserved students, such as schools where large percentages of students receive free or reduced-price lunch or that have low rates of college enrollment. Specific examples of outreach and pathways programs include: 1) college access programs that advance a “college-going culture” among high school students and help students with applying to and enrolling in college; 2) dual enrollment and early college programs; and 3) summer programs that expose students to college-level coursework and programming. The Department also urged colleges and universities to work more with K-12 schools to ensure students are receiving the necessary support to navigate the college application process.

Transfer and Community College Partnerships

The Department also emphasized the importance of reducing unnecessary barriers in the transfer admissions process. Institutions can do so by: effectively implementing credit articulation policies that provide clear information about credits that will be accepted when a student transfers; implementing initiatives such as common course numbering, transferable core courses, guaranteed associate degrees for transfer students, retroactive associates degrees, degree maps, guided pathways, dual admissions between community and four-year colleges, and standardized general education requirements; providing consistent and quality advising by both transferring and receiving institutions; implementing student-centered appeal procedures when an institution declines to accept credits; and increasing slots for transfer students overall.

Assessing Admissions for Undergraduate and Graduate Programs

Admissions Strategies that Advance Diversity

The Department stated that institutions may adopt a holistic admissions review process that, in addition to academic standards, considers race-neutral nonacademic factors, such as socioeconomic status, first generation college status and attendance at an under-resourced high school. Institutions could also give more consideration to characteristics that demonstrate a student has overcome adversity, demonstrated resilience when facing challenges or hardship (including racial discrimination), or responded to inspiration. Institutions were encouraged to ensure adequate training for admissions reviewers to ensure they assess applications consistently.

Reconsidering Practices That May Negatively Impact Diversity

The Department encouraged institutions to consider whether any of the following practices could negatively impact diversity: legacy admissions preferences, use of entrance exams (e.g., SAT, ACT, GRE), and early acceptance programs, but did not state that any of these practices were prohibited. The Department also noted that institutions could also consider implementing alternative assessments to K-12 prerequisites, allowing students to demonstrate mastery of a subject or capacity for college-level work through alternative means.

Alternative Admissions Policies

The Department stated that institutions could consider streamlining admissions processes to make the college application easier for students, particularly low-income or first-generation college students. Specifically, institutions could consider implementing direct admissions programs, which guarantee admissions for students graduating from in-state schools if they meet threshold requirements (e.g., GPA or class rank). Similar to schools in states such as California, Florida, Texas and Washington, states and institutions could also implement “top percent” plans, permitting presumptive admission to students graduating in a specific percentile of their high school class.

Lowering College Costs and Supporting Equitable Funding

Need-Based Aid

The Department stated that schools should consider greater investments in need-based aid, including by structuring development and fundraising goals around the need for such assistance. No-loan programs have proven particularly beneficial to first-generation college students, as have no-loan programs which are open to all aid-eligible students (as opposed to means testing to confirm that a student’s family falls below a specified income threshold). Financial and other potentially onerous eligibility requirements for need-based programs can contribute to racial and other disparities in the resulting student body.

Tuition- Free Programs

The Department also noted that “college promise” programs, efforts by state and local governments as well as private philanthropic bodies, are strategies that can impact matriculation at community colleges as well as public and private four-year institutions. Some focus on preparation for careers in high demand — e.g., STEM and STEAM fields — and others focus simply on reducing the financial burden of postgraduate education by providing “first dollar” or “last dollar” coverage. According to the Department, studies have shown that “college promise” programs drive bachelor’s degree completion rates among historically disadvantages communities.

State Funding and Transparency for Applicants

The Department expressed concern about state disinvestment in higher education and encouraged states to recognize the demonstrated benefits of direct appropriations to the state’s economic wellbeing. The Department also expressed concern that even where states have provided relatively generous funding for certain postsecondary schools, HBCUs may not have received a proportionate share of that public spending. On a practical note, the Department encouraged institutions to provide clear guidance on FAFSA completion, and to “better distinguish net price from sticker price on their websites” while providing potential students with easy-to-find and “understandable information on what need-based aid is available and the criteria for eligibility and selection.”

Bolstering Completion Through Supportive Campus Climates

Comprehensive Support Services, Basic Needs and Emergency Aid

The Department specifically noted that students often face challenges involving housing, medical care, childcare, transportation, food costs, costs of books or supplies, and other academic or practical necessities. The Department cited research showing that “in addition to financial aid, the combination of integrated and intensive advising and support services provided over multiple years can help students overcome barriers and ensure timely progress toward completion.” The Department highlighted a California program allowing for “meal point donations,” so students with surplus meal points can donate them. The Department stated that establishing “emergency aid” funding for students with temporary but acute financial need has also proven beneficial to campus diversity.

Evidence-Based Retention and Completion Strategies

To identify, encourage and support students at risk of noncompletion, the Department describes various successful program models. Some schools have used “early warning” flags, such as connecting high school GPAs with freshman year academic outcomes; others focus on using real-time data to provide “comprehensive advising” in a timely manner. The Department notes that for some institutions, even modest institutional grants upon achieving completion-related benchmarks substantially improved “completion gaps” for first-generation students, low-income students, and students of color.

Campus Climate, Inclusion and Belonging

Finally, the Department emphasizes that institutions may attempt to “set a tone of inclusiveness” not only at the institutional leadership level but also throughout the faculty, staff, and broader campus community. Leaders on campus “can also set policies and practices such as using climate surveys to assess the current perceptions of climate on campus and set goals for improvement.” Academic offerings, extracurricular outlets, and broad career and professional development programs can help all students feel fully included on campus.


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

Related Legal Services

The Faegre Baker Daniels website uses cookies to make your browsing experience as useful as possible. In order to have the full site experience, keep cookies enabled on your web browser. By browsing our site with cookies enabled, you are agreeing to their use. Review Faegre Baker Daniels' cookies information for more details.