By Michael W. Lewis

August 15, 2023

On Monday, August 14, the Biden Administration released directives to help college admissions departments understand what is still permissible pursuant to the Supreme Court’s ruling against race-conscious practices this summer. The Court held that the use of race in admissions policies, as applied by the University of North Carolina and Harvard College, violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 (“SFFA”). In crafting its directives and clarifying Q&A document, The Departments of Education and Justice (“The Departments”) reaffirmed the commitment of ensuring that educational institutions remain open to all, regardless of race, as research shows that institutions that reflect the rich diversity of their community leads to reductions in prejudices, increases in cross-racial understandings, and heightened cognitive development and problem-solving skills.

The Court in SFFA limited the ability of institutions of higher education to consider an applicant’s race in and of itself as a factor in determining whether an applicant should be admitted. Nothing in the Court’s opinion, however, should be interpreted as prohibiting universities from “considering an applicant’s discussion of how race has affected his or her life, be it through discrimination, inspiration, or otherwise.” Thus, universities are encouraged through the Administration’s guidance to embrace race more holistically in its review process, enabling for an applicant’s background and attributes, including race, positions them to uniquely impact the campus.

Institutions of higher education can also continue to workshop missions and objectives tied to student body diversity and have the discretion to adopt “all legally permissible methods” to achieve that diversity. While the Court did not outline specific steps institutions may implement to achieve diverse student bodies, the directive provides examples that include targeted outreach, recruitment, and pathway programs.

The Court’s decision does not require institutions to ignore race when identifying prospective applicants for outreach and recruitment, so long as their outreach does not provide targeted groups preference in the admissions process, and all students are able to enjoy the same opportunity to apply and compete for admission. In identifying prospective students through outreach and recruitment, institutions may, as many currently do, consider race and other factors that include, but are not limited to, geographic residency, financial means and socioeconomic status, family background, and educational levels of the applicant’s parents. Utilization of pathway programs, though varied in structure and scope across respective institutions, allow institutions to take active steps to ensure that they connect with a broad range of prospective students by providing mentoring and other programming throughout the school year to enhance students’ academic exposure.

Additionally, collection of demographic data regarding student applicant pools provides institutions critical information about students that includes race. However, institutions should ensure that the racial demographics of the applicant pool do not influence admissions decisions. The Q&A makes clear that admissions officers are not prevented from learning an applicant’s race if the applicant discussed in an essay how their race has impacted their life, but the Court criticized the practice of adjusting admissions priorities in response to demographic data on the race of students in the admitted class.

Likewise, SFFA does not prohibit admissions models that do not consider an individual’s race at all, and instead focus on other factors such as attendance, minimum GPA, and class rank criteria. These factors help to advance the Administration’s emphasis on a holistic application review process, as these sorts of race-neutral factors can help ensure that opportunities are distributed broadly, and that classes are made up of students from a wide range of backgrounds and experiences.

Should you have any questions regarding this guidance, or any other education law questions, please do not hesitate to contact Michael W. Lewis or any of the other attorneys in the Appel, Yost & Zee Education Law Group.