Law & Courts

Biden Administration Outlines How Colleges Can Pursue Racial Diversity After Court Ruling

By Mark Walsh — August 14, 2023 5 min read
People protest outside of the Supreme Court in Washington on June 29, 2023. The Supreme Court struck down affirmative action in college admissions, declaring race cannot be a factor and forcing institutions of higher education to look for new ways to achieve diverse student bodies.
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The Biden administration on Monday issued informal guidance on the U.S. Supreme Court’s June decision striking down affirmative action in admissions, stressing that there are still legal ways for colleges and universities to pursue racial and ethnic diversity in their student enrollments.

“For institutions of higher education, this may mean redoubling efforts to recruit and retain talented students from underserved communities, including those with large numbers of students of color,” says a “Dear Colleague” letter from Catherine E. Lhamon, the assistant secretary for civil rights in the U.S. Department of Education, and Kristen Clarke, the assistant attorney general for civil rights in the U.S. Department of Justice.

“Students from disadvantaged backgrounds, who are disproportionately students of color, are more likely to attend PreK-12 schools that lack the particular courses, types of instruction, and enrichment opportunities that prepare students for college, and that colleges and universities seek in their admissions process,” the letter says.

No need to ignore race altogether, guidance document says

Lhamon and Clarke, along with Secretary of Education Miguel A. Cardona, had struck similar themes at a Washington event for higher education leaders in late July in response to the Supreme Court’s June 29 decision in Students for Fair Admissions v. President and Fellows of Harvard College, which struck down race-conscious admissions policies at Harvard and the University of North Carolina. They promised the guidance document would be released this month.

The six-page question-and-answer document emphasizes that colleges may still seek a diverse student-applicant pool by using “targeted outreach, recruitment, and pipeline or pathway programs.”

“The court’s decision in SFFA does not require institutions to ignore race when identifying prospective students for outreach and recruitment, provided that their outreach and recruitment programs do not provide targeted groups of prospective students preference in the admissions process,” the document states.

Higher education institutions may direct outreach and recruitment efforts toward schools and districts that serve predominantly students of color and those of limited financial means, the document says. They may also target school districts or high schools that are underrepresented in the institution’s applicant pool by focusing on such factors as geographic location, low-performing schools or schools with high dropout rates, large percentages of students receiving free or reduced-price lunch, or historically low numbers of graduates being admitted to the institution, it says.

Pathway programs, such as mentoring and summer enrichment, may also be used as tools to improve diversity among admissions applicants, the document notes.

The guidance also embraces Chief Justice John G. Roberts Jr.’s language in his majority opinion that “nothing in this opinion should 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.”

This means, the new document says, that “a university could consider an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra or 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.”

The institution could also consider a high school guidance counselor or other recommenders who described how a student, for example, “conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team,” the document says.

“In short, 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,” the document states. But it does note the chief justice’s caveat that any such admissions benefit be tied to the individual applicant’s characteristics and that the student be “treated based on his or her experiences as an individual” and “not on the basis of race.”

Additionally, the document says colleges may still collect demographic data about students (including about race and ethnicity), which are used for a variety of purposes. But it notes that the Supreme Court “criticized the practice of institutions adjusting their admissions priorities dynamically in response to demographic data on the race of students in the admitted class.” Thus, the document says, “institutions should ensure that the racial demographics of the applicant pool do not influence admissions decisions.”

A former Education Department official calls the interpretation “an end run” around the ruling

A footnote in the Q&A document says its contents “do not have the force and effect of law and do not bind the public or impose new legal requirements, nor do they bind the Departments of Education and Justice in the exercise of their discretionary enforcement authorities.”

William E. Trachman, a former Education Department official who served under President Donald Trump, said he was encouraged that OCR and the Justice Department’s civil rights division say in the document that they will fully enforce the Supreme Court decision in the context of Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in federally funded programs.

“But the rest of the document looks to me to be close to an end run” around the decision, said Trachman, who is now the general counsel of the Mountain States Legal Foundation in Lakewood, Colo., and who wrote a friend-of-the-court brief on behalf of several other former Trump administration Education Department officials supporting the challenge to affirmative action.

Targeting and recruiting underrepresented groups is “generally OK,” he said, though it would be problematic if colleges only aimed such programs at racial minorities. Pathway programs that promise admission to participants from underrepresented minority groups, however, would seem to be a form of end run around the Supreme Court decision, he said.

Trachman said he found it noteworthy that the document does not offer any legal citations to back up some of its assertions about what is permissible in such areas as targeting, recruiting, and pathways.

“I do think this [interpretation] is aggressive,” he said. “It makes the least robust inferences possible about [the Supreme Court decision].”


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