Departments of Education, Justice Publish Initial Affirmative Action Decision Guidance

As it promised in June, the Biden Administration published much-anticipated federal guidance on higher education admissions on Aug. 14, 2023. The U.S. Department of Education's Office for Civil Rights (ED) and U.S. Department of Justice's Civil Rights Division (DOJ) jointly released two resources to guide colleges and universities in evaluating the scope and impact of the U.S. Supreme Court's recent decision in the Students for Fair Admissions (SFFA) cases. (See Holland & Knight's previous alert, "U.S. Supreme Court Rules Race-Conscious College Admissions Are Unconstitutional," June 29, 2023.)

The resources are in the form of "Dear Colleague Letter" (DCL) and Questions and Answers (Q&A) documents. Importantly, these agency publications are neither framed nor promulgated as law; they do not have the same effect as an enforceable statute or regulation. The agencies also were careful to note that the publications are not binding on their enforcement authority. Nevertheless, their joint guidance provides useful information for institutions to consider as they navigate the impact of the SFFA decision on admission, recruitment, and diversity policies and programs.

At the core of the DCL is the reaffirmation by ED and DOJ of their commitment "to ensuring that educational institutions remain open to all, regardless of race" and that they "stand ready to support institutions that recognize that such diversity is core to their commitment to excellence, and that pursue lawful steps to promote diversity and full inclusion." These agency statements reinforce the Biden Administration's previous comments encouraging colleges and universities to recognize and value students who have overcome adversity. Consistent with that commitment, the DCL suggests ways in which colleges and universities may lawfully promote diversity on campus.

The three-part Q&A expands upon the suggestions offered in the DCL and explores the fundamental holding of the SFFA decision, the ways in which an individual applicant's experiences – including those based on the applicant's race – may be considered in the context of a holistic application and review process, and the steps institutions of higher education may take to achieve a student body that is diverse across a range of factors, including race and ethnicity.

Collectively, the DCL and Q&A emphasize that institutions of higher education may continue to articulate missions and goals tied to student body diversity and use all legally permissible methods to achieve that diversity, including using strategies that remove barriers and expand opportunity for all. The guidance offers examples of these methods and strategies focusing on a) outreach and recruiting, b) review of the institution's admission policies and c) evaluation of data and retention efforts as they relate to achieving missions and goals.

Outreach and Recruiting

The DCL and Q&A offer suggestions for "targeted" outreach and recruitment efforts, including:

• pursuing strategies of outreach and recruitment that connect with a broad range of prospective students, including those students who otherwise may not be aware of, or see themselves as potential candidates to attend, those institutions
• participating in pipeline/pathway programs that enhance college preparation for disadvantaged students and awarding preference in college admissions to students who were selected (based on non-racial and otherwise legal, permissible criteria) to participate in the pipeline/pathway program
• targeting recruitment efforts toward schools and school districts that serve predominantly students of color, students of limited financial means or students who are underrepresented in the school's applicant pool
• offering mentoring, academic enrichment programs, summer campus experiences and other programming throughout the school year to develop a more diverse student applicant pool

The DCL and Q&A caution that these outreach and recruiting efforts cannot afford individual applicants a preference on the basis of race or ethnicity (or other applicable legally protected categories).

Review of the Institution's Admissions Policies

The DCL and Q&A encourage institutions to reevaluate their admissions policies to determine which factors in a holistic admissions process best reflect the institution's values and commitments and to work proactively to identify and lower potential barriers that may reflect and amplify inequality, disadvantage or bias.

Colleges and universities are encouraged to assess several areas:

• How do current admissions policies serve to identify and reward those attributes that the institution most values – whether it be hard work, achievement, intellectual curiosity, potential or determination?
• Do current policies include admission preferences, such as those based on legacy status or donor affiliation? And, if so, how are those related to a prospective applicant's individual merit or potential, and do they benefit privileged students and reduce opportunities for others who have been foreclosed from such advantages?
• If an institution has identified a commitment to access underserved populations, how do its policies reflect its strategy for outreach to, for example, first-generation college students or Pell Grant-eligible students?
• How do the "mechanics" of the institution's admissions processes – such as application fees, standardized testing requirements, academic prerequisites or early decision options – align with its missions and goals?

With respect to race, the guidance confirms that while race alone cannot be given weight as a factor in admissions decisions, an applicant's personal experience of race can be considered as a background for evaluating qualifications. The Q&A emphasizes 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 the race, experience of racial discrimination, or the racial composition of their neighbors and schools – position them to contribute to campus in unique ways."

Institutions are also free to consider various race-neutral circumstances, including financial means, socioeconomic status, neighborhood and high school, parental education, languages spoken and many others.

Evaluation of Data and Retention Efforts

The DCL and Q&A confirm that institutions may use demographic data, including information about race, to assess how well admissions policies and practices are advancing institutional goals. The guidance describes how the breakdown of this type of data can aid institutions in assessing if their admissions practices discriminate based on any protected characteristics or create artificial barriers to admissions, or if their admission and post-admission programs are in need of redevelopment in regard to its academic, social or financial elements. Although the guidance does not specify what data should be collected, when or with whom it should be shared, both the DCL and Q&A caution that in collecting and using the data, institutions should take effective measures to ensure that the racial demographics of the applicant pool do not influence their admissions decisions.

The DCL and Q&A also stress the value of retaining students of diverse backgrounds by fostering a sense of belonging and support on campus. The guidance notes that an institution may foster such a sense of belonging and support through its office of diversity, campus cultural centers and similar campus resources, as well as by offering support clubs and activities in affinity groups where students have a space to celebrate their identities and experiences, as long as such campus resources and activities are available to all students, regardless of their race.

Conclusion

The DCL and Q&A provide some degree of clarification and comfort as many colleges and universities work diligently to ensure diverse student bodies consistent with their institutional goals and within the bounds of the law. The exact limits of those bounds will develop over time through further agency regulation and judicial rulings. The current guidance from ED and DOJ is generally consistent with the consensus among legal professionals in higher education: While race, by itself, cannot be a factor in admissions decisions, there remain many other lawful factors that colleges and universities may weigh when recruiting, preparing, admitting and retaining a diverse class of qualified students.

For more information or questions, please contact the authors or another member of Holland & Knight's Education Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.