Biden Administration Answers Questions About Diversity and Race Based Admissions after Students for Fair Admissions

Following the U.S. Supreme Court’s landmark decision on race-based admissions standards in Students for Fair Admissions, Inc. v. Harvard College and University of North Carolina (“SFFA”), the U.S. Department of Education’s Office for Civil Rights and Department of Justice’s Equal Opportunities Section on Monday, August 14 released “Questions and Answers Regarding the Supreme Court’s Decision in Students for Fair Admissions, Inc., v. Harvard College and University of North Carolina.” The Memo provides key guidance to assist higher education institutions in implementing lawful admissions programs while still seeking the benefits of a diverse student body.

In SFFA, the Supreme Court held that Harvard College and UNC’s admissions programs unlawfully considered individual students’ race in determining whether to offer those students admission. The Court held that the schools’ asserted interests in the educational benefits of diversity— including, among other things, training future leaders, preparing graduates to thrive in an increasingly pluralistic society, promoting the robust exchange of ideas, fostering innovation and problem-solving, and encouraging respect, empathy, and cross-racial understanding—were not sufficiently measurable and could not “be subjected to meaningful judicial review.”

The Court did not, however, fully foreclose the consideration of race in admissions decision, and said that admissions decisions may consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

The Biden administration interprets this provision to mean that institutions of higher education remain free to consider any quality or characteristic of a student that bears on the institution’s admission decision, such as courage, motivation, or determination, even if the student’s application ties that characteristic to their lived experience with race—provided that any benefit is tied to “that student’s” characteristics, and that the student is “treated based on his or her experiences as an individual,” and “not on the basis of race.”

According to the Memo, this means that universities may continue to embrace appropriate considerations through “holistic application-review processes” and (for example) provide opportunities to assess how applicants’ individual backgrounds 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 Memo provided several specific examples of what a higher education institution could consider, including:

• an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra;
• an applicant’s account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent;
• a guidance counselor or other recommender’s description of how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team;
• an applicant’s discussion of how learning to cook traditional Hmong dishes from her grandmother sparked her passion for food and nurtured her sense of self by connecting her to past generations of her family.

The guidance also clarifies that institutions of higher education may continue to “articulate missions and goals tied to student body diversity” in an effort to achieve a diverse student body. The memo outlined several specific steps institutions can continue to take to achieve diversity without running afoul of the SFFA decision, including: Targeted Outreach, Recruitment, and Pathway Programs; Collection of Demographic Data; Evaluation of Admissions Policies; and Student Yield and Retention Strategies and Programs.

The Memo explained that these measures are not inconsistent with the SFFA ruling because “seeking to enroll diverse student bodies can further the values of equality of opportunity embedded in the Fourteenth Amendment and other federal civil rights laws.”

The full memo can be found here: https://www.justice.gov/d9/2023-08/post-sffa_resource_faq_final_508.pdf

If you have any questions regarding the content and application of the Memo, please contact one of the authors of this alert or any Franczek attorney.