Complying with Students for Fair Admissions: Initial Responses by Institutions and Agencies

At a Glance

• Following the U.S. Supreme Court ruling in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, institutions seeking to admit diverse student bodies may need to review and ultimately revise their policies and practices in order to achieve that goal through appropriate means.

After the U.S. Supreme Court issued its highly anticipated decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina et al., No. 21-707 (together, Students for Fair Admissions or SFFA), on June 29, 2023, postsecondary institutions, federal agencies, and related entities have had to determine what the holding requires. Because race-conscious admissions programs are now constitutionally impermissible under SFFA, institutions seeking to admit diverse student bodies may need to review and ultimately revise their policies and practices in order to achieve that goal through appropriate means. 

This article offers a brief summary of the initial compliance approaches taken by notable institutions, government agencies, and interest groups, and includes a general framework through which institutions may begin to assess their compliance obligations. On August 14, 2023, the U.S. Department of Education (ED) and the Department of Justice (DOJ) also jointly issued guidance to assist institutions in complying with the decision. We are providing a summary of that guidance in a separate article; this post exclusively describes institutional and agency responses immediately after the decision. 

Revised Admissions Processes 

Following SFFA, some colleges and universities announced revised admissions processes for the next class of applicants (e.g., in traditional semester-based institutions, students applying this autumn for matriculation in 2024). UNC, a party to the litigation, announced in July that it would prohibit any consideration of not only race, but also sex or ethnicity, in institutional decisions about admissions. It further extended that policy to hiring decisions, too – an extension that is not required by SFFA on its face, but which may ultimately arise out of the Title VI jurisprudence it suggests. 

Other institutions created application essay prompts that either ask students to reflect on the decision itself or provided additional forums for personal reflection including racial or ethnic identity and related experiences, characteristics, or values. The Common Application, which is used by hundreds of institutions as a means of streamlining the application process, will retain an essay prompt of this type, but has also announced that it will hide data about students’ self-described race or ethnicity at an institution’s request. 

Outside Groups Take a Broad Interpretation of the Ruling 

Less than two weeks after Students for Fair Admissions came down, the plaintiff group itself emailed 150 colleges and universities, setting out its interpretation of the court’s holding and enumerating various principles and requirements which it considers the decision to mandate. The emailed letter, signed by Students for Fair Admissions president Ed Blum, stated its view that institutions must do the following under SFFA: 

• Eliminate any “check box” race data provided to admissions officers, included on an aggregated basis. 
• Abolish any institutional guidance regarding — or definitions of — “underrepresented” racial groups. 
• Administer admissions processes that “make clear race is not to be a factor” in admissions decisions, including through essay prompts or personal statements. 

As noted above, these positions reflect a broad reading of the ruling, are a matter of interpretation, and are not required on its face. (Mr. Blum recently has also filed a lawsuit against the Fearless Fund, a venture capital firm based in Atlanta which “invests in women of color led businesses” at the seed funding stage. This could suggest that various types of race-conscious efforts, including in the private sector and outside of education, will be subject to challenge after SFFA.)

ED Response

In late July, ED hosted the National Summit on Equal Opportunity in Higher Education, where the agency acknowledged SFFA’s letter to institutions but emphasized that the Department, not private interest groups, will determine what institutional policies comply with constitutional requirements and federal regulation. ED reminded institutions that “working to achieve diversity” remains lawful and that any institution may continue to seek diversity as part of its educational mission. ED also indicated that it will certainly inform institutions if it finds that their admissions or other practices violate Title VI, or the Equal Protection Clause as construed by the SFFA ruling. ED discouraged institutions from implementing overly broad interpretations that are not required by the Constitution or federal statute, and which may harm lawful efforts and mechanisms to achieve diversity. 

ED emphasized that institutions should comply with the decision while continuing to address and remediate systemic inequities, including but not limited to those grounded in racial inequality. Secretary Miguel Cardona, noting his experience in the K-12 landscape, encouraged colleges and universities to make postsecondary programs available to qualified secondary school students. He asserted that the country has yet to realize “the promise of equal opportunity for all of our students.” Under Secretary James Kvaal recommended that institutions continue their diversity efforts consistent with SFFA, describing the situation as “all hands on deck,” and Catherine Lhamon, assistant secretary for ED’s Office of Civil Rights (OCR), noted that schools may continue to prioritize educational pathways that promote “equal access” to education while complying with the court’s mandate. 

DOJ also participated in this summit and again encouraged institutions to look forward to further guidance from both agencies. That guidance – later issued in mid-August – was described as aiming to provide institutions with clearer directions on complying with the ruling, potentially including subjects such as the provision of race-conscious scholarships and financial aid. In addition to its importance for postsecondary institutions, such guidance would also be especially valuable for the philanthropic and corporate giving communities. Kristen Clarke, Assistant Attorney General for the Civil Rights Division of DOJ, encouraged institutions to adopt compliant admissions policies that adhere to SFFA without “turning [their] backs on diversity” as a societal value and institutional goal. 

Indeed, in the formal guidance which ED and DOJ published on August 14, 2023, and which we summarize here, the agencies jointly provided directions on how institutions may comply with SFFA while lawfully pursuing the matriculation and retention of diverse student bodies, including but not limited to racial diversity. The departments’ guidance did not reflect, and in certain respects directly rejected, the purported broad requirements of the SFFA holding which were advanced by the SFFA group itself in its letter to institutions following the court’s opinion. 

State Attorneys General Adopt Differing Approaches

As noted in earlier posts about the implications of SFFA and challenges to DEI programs, state attorneys general have now publicized their views on various institutional practices they consider impermissible under the SFFA ruling. In Missouri, for example, Attorney General Andrew Bailey wrote a letter to all colleges and universities in the state, whether public or private, on the same day the decision came down. He stated that “all Missouri programs that make admitting decisions by disfavoring individuals based on race—not just college admissions, but also scholarships, employment, law reviews, etc.—must immediately adopt race-blind standards.” His letter further required that “Missouri institutions […] identify all policies that give preference to individuals on the basis of race and immediately halt the implementation of such policies.” 

Much like the Blum letter to colleges and universities across the country, Attorney General Bailey’s letter expresses a very broad view of the holding in SFFA, particularly through its explicit extension of race-blind requirements to scholarship awards and other selective institutional programs, and including employment. Ohio Attorney General Dave Yost also warned higher education institutions in his state that they must “comply strictly” with the holding, and the University of Kentucky has stated that “it appears that the Court has restricted the consideration of race with respect to admissions and scholarships.”  

In other states, law enforcement and authorizing agencies have indicated that they view the requirements of SFFA more narrowly and have proactively identified programs that can contribute to campus diversity consistent with applicable law. In Massachusetts, Gov. Maura Healey and Attorney General Andrea Joy Campbell, with other state and institutional leaders, publicly stated that while it would comply with SFFA, “Massachusetts, the home of the first public school and first university, will lead the way in championing access, equity, and inclusion in education.” Similarly, Dennis Olson, commissioner of the Minnesota Office of Higher Education, announced that his state would begin a “North Star Promise Scholarship Program” in 2024, seeking to make college more affordable for low-income students as a means to achieving greater diversity. Implementation of SFFA therefore appears, at this relatively early juncture, to differ substantially across multiple states. 

OCR Opens Inquiry on Harvard’s Legacy Admissions Practices

Other advocacy groups responded to the decision by requesting that OCR open an investigation into the permissibility of “legacy” and other non-racial admissions preferences at Harvard. OCR confirmed that it opened an investigation of Harvard University under Title VI of the Civil Rights Act of 1964, in light of the recent ruling. However, it is important to note that legacy preferences, in which the children and relatives of alumni and donors are given preferential admissions treatment, have previously survived scrutiny by OCR. In 1988, OCR launched an investigation of Harvard’s Title VI compliance with respect to Asian American applicants, but ultimately cleared the institution and found no discriminatory wrongdoing. OCR noted that while Harvard admitted students of Asian descent at lower rates than comparable white students, it also found that other permissible considerations, including the admission of legacy candidates, explained that difference without discriminatory intent. The agency found that “Harvard’s use of preferences for children of alumni, while disproportionately benefiting white applicants, does not violate Title VI.” It is therefore not clear that OCR’s new inquiry into the same subject matter will result in any different analysis after SFFA, but the decision to open an investigation is notable and may have broader implications beyond Harvard. Some institutions have already stated that they will voluntarily cease considering legacy status of applicants. 

Towards an Implementation Framework: Initial Takeaways for Institutions 

Many postsecondary institutions may wish to thoughtfully implement SFFA while maintaining a diverse student body and applicant pool. To do so, institutions could begin by considering the following:

• Recall that the institution’s educational mission remains within the discretion of the institution itself. 
• Review current admissions policies and processes in detail and note which if any aspects may require revision in light of the ruling. 
  
• Assess what outreach, recruiting, pipeline and mentorship or other supportive efforts may be available to increase diversity in an array of ways, including but not limited to racial diversity. 
• Consider how, if at all, the institution’s admissions process creates space for applicants to discuss their identity, experience, resilience or other personal qualities. 

Conclusion

Students for Fair Admissions establishes Equal Protection Clause and Title VI jurisprudence that will require many colleges and universities to review their processes for student admissions, and perhaps for other areas of institutional operations. We are also separately publishing a summary of the guidance from ED and DOJ regarding the proper scope and required implementation of the SFFA holding.

If you have questions about any matters described in this alert, or other matters, please reach out to a member of the affirmative action task force or the education team.