August 16, 2023Client Alert

The Department of Education and Department of Justice Jointly Release Resources In the Wake of the U.S. Supreme Court’s Affirmative Action Decision

As we wrote previously, on June 29, 2023, the United States Supreme Court struck down the use of race-conscious admissions in Students for Fair Admissions, Inc. v. Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively, “SFFA”). On August 14, 2023, the Department of Education (“DOE”) and Department of Justice (“DOJ”) jointly released resource documents to assist higher education institutions in understanding the SFFA decision and the lawful steps they can take to achieve or maintain diverse student bodies.

The resource documents include a Dear Colleague Letter and a Question and Answer (“Q&A”) guide. Catherine E. Lhamon, DOE’s Assistant Secretary for Civil Rights, said, “[t]oday’s resources explain practices that remain legally viable and confirms the Federal government’s robust civil rights protections in schools.” Notable takeaways from the two resources include the following:

  • The Dear Colleague Letter is primarily focused on messaging the DOE’s and the DOJ’s continued commitment to equal access to education for all students. The Dear Colleague Letter reminds higher education institutions that the DOE and the DOJ will continue to enforce Titles IV and VI of the Civil Rights Act of 1964.
  • The Q&A explains that while the Court determined UNC’s and Harvard’s asserted interests in the educational benefits of diversity were not sufficiently measurable, higher education institutions may continue to assert missions and goals tied to student body diversity. As such, these missions and goals alone do not violate the law. Rather, a court will likely scrutinize the tools institutions use to implement their missions and goals related to student body diversity.
  • The Q&A discusses the following four practices (noting lawful measures are not limited to these practices) the DOE and DOJ believe are lawful and may help achieve diverse student bodies:
    • Targeted outreach, recruitment, and pathway programs: The Q&A explains these programs allow institutions to connect with a broad array of students and thus obtain a broad applicant pool. According to the Q&A, the SFFA decision does not prohibit institutions from considering race when selecting where to focus their outreach, recruitment, and pathway programs, as long as these groups do not receive a preference or a plus factor when institutions make admissions decisions. With respect to pathway programs, the Q&A states that institutions may lawfully give pathway participants preference in college admissions so long as participation in the pathway program is not based on racial criteria.
    • Collection of Demographic Data: The Q&A states that institutions may continue to collect demographic data on a number of categories, including the applicant pool, student admissions outcomes, and student enrollment and retention. The Q&A notes that this data can help an “institution develop, review, and refine outreach, recruitment, and pathway programs targeted to the institution’s needs,” ensure “that their admissions practices do not discriminate based on any protected characteristics or create other artificial barriers to admission” and assist their “development, review, and assessment of student programming needs (whether academic, co-curricular, social, or financial).” But institutions collecting this data, particularly any data related to race, cannot use the data when making admissions decisions. To that end, the Q&A recommends ensuring policies are in place so that those who make admissions decisions are not influenced by the demographic data collected. Importantly, the restriction applies not only to individualized data, but also to racial demographics of the applicant pool as a whole.
    • Evaluation of Admissions Policies: The Q&A states the SFFA decision does not prohibit institutions from evaluating their admissions processes to ensure the processes reflect their values and commitments. The Q&A assumes institutions will use a holistic admissions process to adhere to their values and commitments, and in doing so may consider: (1) admitting more first-generation or Pell-grant eligible students; (2) re-evaluating any preferences for legacy status or children of faculty; (3) whether current admissions processes are eliminating certain applicants from consideration who would otherwise thrive on campus (e.g., whether there are any unnecessary barriers in place inconsistent with the institution’s values and commitments); and (4) other race-neutral criteria like graduation from a community college or implementing a percentage plan automatically admitting students who graduate in the top portion of their high school class.
    • Student Yield and Retention Strategies and Programs: The Q&A ends with commentary on using lawful tools to retain students. Some examples include utilizing the office of diversity, maintaining support clubs, and having affinity groups so that students have a “space to celebrate their shared identities, interests, and experiences.” While these activities may have a race-related theme, the activities must be open to all students, regardless of their race.
  • There are many open questions about what the Court meant when it said its opinion does not prohibit higher education institutions from considering an applicant’s discussion of how race affected their life. The DOE and the DOJ interpret the opinion to mean that institutions may “continue to embrace appropriate considerations through holistic application-review processes and (for example) provide opportunities to assess how applicants’ individual background 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 DOE’s and DOJ’s Dear Colleague Letter and Q&A are not binding legal authority. Higher education institutions should continually evaluate whether their admissions policies and practices are consistent with the SFFA decision, and, if student body diversity is integral to an institution’s mission and goals, whether its admission and retention practices are fulfilling its mission and goals. Such ongoing assessment is particularly important given the rapidly-evolving developments in the law and strategies higher education institutions are implementing following the SFFA decision.

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