Biden Administration Releases Dear Colleague Letter and Q&A Document regarding the Students for Fair Admissions Decisions

On August 14, 2023, the Department of Education's Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division (together, the Departments) jointly released two resources to help higher education institutions understand and navigate the implications of the Supreme Court’s Students for Fair Admissions^[1] decisions; a Dear Colleague Letter^[2] and a Q&A Document.^[3] The resources encourage institutions to continue diversity initiatives. In his statement, U.S. Secretary of Education, Miguel Cardona, said that the resources aim to provide institutions with clarity on how to “lawfully promote and support diversity, and expand access to educational opportunity for all.”^[4]

The Departments note that the Students for Fair Admissions decision allows institutions to “continue to embrace appropriate considerations through holistic application-review processes.” Specifically, the Departments encourage institutions 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 Departments also confirm that higher education institutions can lawfully continue to “articulate missions and goals tied to student body diversity and may use all legally permissible methods to achieve that diversity.” Below is a summary of the Departments’ guidance:

Targeted Outreach, Recruitment, and Pathway Programs – the Departments note that the Students for Fair Admissions decision “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 admission process...” The Departments’ suggest that institutions focus their efforts on ensuring current and prospective students see campuses as places where they “will be welcome and will succeed.” The Departments also suggest that higher education institutions focus their efforts on providing students with need-based financial support that allows students “not just to enroll, but to thrive.”  The Departments’ additional suggestions are summarized below:

• Institutions can “partner with school districts in underserved communities” to support access to advanced courses and enrichment opportunities needed to “nurture students’ potential” and ensure students are prepared to apply to college.
• Institutions can “participate in programs that commit them to enroll, support, and graduate students from disadvantaged backgrounds, regardless of race, who are attending or have graduated from community college.”
• Institutions should tailor their admissions policies and practices to “identify and reward those attributes that they most value, such as hard work, achievement, intellectual curiosity, potential, and determination.”
• Institutions should examine any admissions preferences (legacy status, donor affiliation, etc.) that are unrelated to an applicant’s individual merit.

Collection of Demographic Data – The Departments confirm that higher education institutions may continue lawfully collecting demographic information about their applicant pool, admissions outcomes, enrollment, and retention, so long as the institution’s use is “consistent with applicable privacy laws and ensures that demographic data related to the race of the student applicants do not influence admissions decisions.”

Evaluation of Admissions Policies – The Departments provide examples of practices for increasing access for underserved student populations, such as admitting more first-generation or Pell-grant eligible students. The Departments also suggest that institutions study whether admissions practices such as legacy admissions, application fees, standardized testing requirements, and pre-requisite courses advance institutional interests in achieving a diverse student body.

Student Yield and Retention Strategies and Programs – The Departments emphasize that, offices of diversity, campus cultural centers, and other campus resources that promote a sense of belonging for students on campus remain permissible. Clubs, activities, and affinity groups, including those with a “race-related theme” also remain lawful, so long as the groups are open to all students regardless of race.

Join the Bricker Graydon Higher Education team for a free webinar on August 23, 2023 to cover this guidance in more depth and discuss recent legislative and judicial movements across the country related to affirmative action and lawful admissions practices.