What does this mean for the current admissions cycle?
Opinions of the Supreme Court are immediately binding upon publication unless otherwise stated. Therefore, schools are currently required to comply with the decision. While most applications for the 2023 incoming class have been decided, and schools cannot be expected to go back in time to undo the collection of race demographics for applicants, the explicit consideration of race in any current or future admissions decisions will need to be revisited for decisions made from today forward. Admissions administrators should check in with counsel about complying with the Supreme Court’s guidance. Particularly, if your usual practice is granting an applicant a plus factor, or any other leg-up in the admissions process, because the applicant is from an underrepresented race, admissions administrators should revisit such practices immediately.
How do we support those in our community who are hurt and upset by this decision?
Colleges and universities are required to comply with Supreme Court decisions interpreting the Constitution. Institutions are also considered speakers with the First Amendment right to freedom of expression. Therefore, nothing prevents institutions from speaking out in an official capacity to support students, faculty, and staff affected by this decision. Further, the institution, in its official capacity, has the right to speak out against the contents of the decision as a matter of grave public concern. However, given the nuance of the Supreme Court’s opinion, communications should be measured so as to not commit the institution to an admissions policy or practice before an in-depth compliance review occurs.
What does this mean for scholarships, affinity groups, and other areas of student life that involve race as a factor?
The Supreme Court focused its opinion specifically on Harvard and UNC’s admissions practices that consider race as a factor. The Court also did not expressly reject the notion that diversity is a compelling educational interest, though it questioned the schools’ articulation of its diversity-related goals and found that those goals are not sufficiently coherent to be subjected to strict scrutiny review. This means that institutions are still able to work toward the educational goal of campus diversity, but will need to think carefully about how to articulate, and measure progress toward, those goals. The opinion itself also does not provide specific guidance or requirements as to programs such as scholarships, affinity groups, and other areas of student life that involve race as a factor. However, the decision does open the door to additional legal challenges to these practices under similar theories as those brought by Students for Fair Admissions (the plaintiffs) in the UNC/Harvard Cases.
It is likely that no immediate action is needed regarding programs already in place for this academic year, given that the institution likely made its decisions for funding and other benefit allocation prior to the decision.
Moving forward, institutions will need to review the policies and procedures for admitting students into and/or allocating the benefits of these programs. The institution should identify the programs that specifically use race as a factor in deciding what programs are available to students, and the institution should evaluate whether those programs run afoul of the Supreme Court’s directive. “[T]he Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at somepoint—end.” However, the Supreme Court’s opinion did not outlaw all diversity programs on campus, and this is just the beginning of institutions finding new ways to ensure that their educational goals of campus diversity are met.
What does this mean for the 2024 admissions cycle?
The Supreme Court’s decision specifically found UNC and Harvard’s use of race as a factor in admissions unconstitutional. Therefore, the first step is to identify the extent to which your institution’s admissions practices mirror those of UNC and Harvard. Both Harvard and UNC use a holistic review undergraduate admissions process, meaning that students who are of an underrepresented race or ethnicity may receive a plus factor as part of the admissions procedure. Under both universities’ admissions policies, race is one of a multitude of plus factors an applicant may receive, none of which are determinative.
First, if your institution currently uses a similar process, the admissions policies and procedures will likely need to be revised to comply with the Supreme Court’s decision. If that is the case, the second step is to identify the ways in which your institution currently requests that applicants disclose their race and how that information is stored and used during the admissions process.
The third step is to consult your institutional processes for policy revision and begin to create a timeline for compliance review that fits with the incoming class of 2024 recruitment schedule.
Fourth, once the relevant on-campus and off-campus stakeholders are engaged, in consultation with legal counsel, commence the process of revising the institutions processes to comply with the decision. While this will look different for each institution, the focus should be on removing the explicit consideration of race as a factor. While the Supreme Court explained that “all parties agree, 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,” it is clear that a checkbox for race is no longer permissible. Therefore, in admissions decisions, the institution should ensure that it refrains from considering information provided through checkboxes and explicit demographic questions that ask specifically for disclosure of race.
Fifth, begin the process of assessing opportunities to expand diversity in new ways by lawful means. While the implications of this decision cannot be overstated, the decision does not prevent institutions from moving forward in new ways toward achieving campus diversity in fulfillment of the institutional educational mission.
Reed Smith will be releasing additional guidance to aid schools in their next steps in responding to this landmark decision and resulting paradigm shift.
Client Alert 2023-139
