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.
c. The guidance focuses on giving institutions concrete examples of permissible practices in four categories: Targeted Outreach, Recruitment, and Pathway Programs; Collection of Demographic Data; Evaluation of Admissions Policies; and Student Yield and Retention Strategies and Programs. The guidance provides tangible action steps in each category. Notably, the guidance also gives institutions examples of “non-racial criteria” to consider in these various categories such as: “10th graders in a geographic area with a certain GPA”; “first-generation college students or Pell-grant eligible students”; students from “community colleges and other institutions that are more likely to enroll students from economically or educationally disadvantaged backgrounds”; and factors “includ[ing] but not limited to: financial means and broader socioeconomic status; whether the applicant lives in a city, suburb, or rural area; information about the applicant’s neighborhood and high school; whether the applicant is a citizen or member of a Tribal Nation; family background; parental education level; experiences of adversity, including discrimination; participation in service or community organizations; and whether the applicant speaks more than one language”. As to the fourth category, student yield, the guidance underscores the importance of continued institutional efforts toward increasing a sense of belonging among students of diverse backgrounds.
2. What authority do the Departments of Education and Justice have over higher education institutions?
a. The Departments of Education and Justice both have jurisdiction to investigate and address complaints of race-based discrimination, particularly under Title VI, which is the statute the Supreme Court cited in invalidating Harvard’s race conscious admissions program. While the two agencies’ processes and authority differ in many ways, both agencies can impose on institutions a variety of sanctions, including public warnings, fines, mandatory internal policy changes, and cuts to federal funding access (although this is rare and operates as more of a warning for continued noncompliance). These agencies’ investigation processes do not follow the same procedure that court proceedings do, and they are often quicker to come to resolution than a court case, which makes agency investigation a more efficient and more common form of enforcement for Title VI. Accordingly, institutions must understand and comply with the Title VI interpretations of the Departments of Education and Justice.
3. Does this guidance have the effect of law?
a. As explained above, the Departments of Education and Justice have the authority and jurisdiction to investigate and address complaints of race-based discrimination under Title VI. Therefore, understanding and complying with this guidance is important for institutions. This guidance does not, however, operate as law. While there are many technical distinctions between statutes and caselaw on one hand and agency guidance on the other, the most notable in this context are: (1) the guidance could change almost immediately if a new President were to be elected; (2) courts are not required treat this guidance as binding upon institutions; and (3) this guidance does not necessarily preempt State guidance or enforcement action.
b. This guidance was not subject to the formal notice and comment process required for agencies to promulgate guidance with more staying power. Therefore, it may be rescinded by the agency at any time without a formal process. Accordingly, if the Presidential Administration changes in the next election cycle, this guidance could (and would most likely) change.
c. Courts’ treatment of agency guidance is the subject of much legal debate and scholarship. As relevant here, however, an institution that is subject to a lawsuit regarding alleged race-based discrimination cannot simply assert that its actions were required or allowed by this guidance. That said, courts often cite to guidance from executive agencies such as this as illustrative of permissible interpretations of particularly difficult or unclear legal questions. Institutions facing ongoing or potential lawsuits of this nature should consult with counsel as to their specific circumstances.
d. Lastly, the interplay between this guidance and other guidance or enforcement actions from State agencies, attorneys general, and legislatures is a nuanced issue – institutions subject to such State action should seek guidance from counsel on the implications of their specific situation.
Client Alert 2023-180
