Reed Smith Client Alerts

On August 14, 2023, the U.S. Departments of Education and Justice released guidance providing insight into the Biden Administration’s interpretation of the Supreme Court’s decision on race-conscious admissions in SFFA v. Harvard and SFFA v. UNC. The guidance includes a Q&A Document and a Dear Colleague Letter issued by Assistant Attorney General for Civil Rights, Kristen Clarke, and Assistant Secretary for Civil Rights at the Department of Education, Catherine E. Lhamon.

There are bound to be many questions as institutions respond to this most recent development in the fallout of the UNC and Harvard decisions; this alert is meant to address some of the most pressing.

1. What are the big take-aways from this guidance?

a. The Departments of Education and Justice read the UNC and Harvard decision as “directly address[ing] only the universities’ admissions programs” (emphasis added). This means that despite commentary and media coverage that suggests the Supreme Court’s decision broadly applies to consideration of race in other contexts, such as scholarships, support services, mission statements, and in the workplace, these Departments do not read the Supreme Court’s decision to reach directly beyond university admissions programs – specifically, the use of race in university admissions programs, as the guidance also points out that the “opinion also did not address many other admissions practices that do not involve the use of race.”

b. The guidance emphasizes the Supreme Court’s statement that “nothing in [its] 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.” The guidance interprets this to mean that institutions “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 guidance provides many examples of permissible practices for considering applicants’ individual backgrounds and attributes according to these Departments, which are discussed below.