Biden Admin Releases Diversity Guidance for Colleges After Supreme Court’s Affirmative Action Ruling

Activists from the Asian American Coalition for Education protest against affirmative action outside the U.S. Supreme Court building in Washington on June 29, 2023. Anna Moneymaker/Getty Images

President Joe Biden’s administration is circulating new guidance for how colleges and universities can promote diversity after a recent U.S. Supreme Court decision striking down race-based affirmative action admission policies.

In June, the Supreme Court ruled in the case of Students for Fair Admissions (SFFA) v. Harvard that race-based affirmative action at colleges and universities is unconstitutional. President Biden was quick to register his disagreement with the court’s decision.

On Monday, Associate Attorney General Vanita Gupta announced the Department of Justice and Department of Education would begin circulating a cover letter and Q&A document (pdf) that instructs institutions of higher education on how they can still factor race into their admissions policies.

While the decision in SFFA v. Harvard bans colleges and universities from using an applicant’s race as a direct factor in their admissions policies, the new DOJ-DOE guidance describes certain scenarios where an applicant’s racial or ethnic background could still come up.

Federal Guidance

The Q&A document states 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 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 document described specific permissible admissions scenarios, such as a university considering an application that describes what it meant for the applicant “to become the first black violinist in their city’s youth orchestra,” or “how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team.”

The DOJ-DOE document further stated that colleges and universities may use admissions practices that consider “the full range of circumstances a student has faced in achieving their accomplishments, including financial means and broader socioeconomic status; information about the applicant’s neighborhood and high school; and experiences of adversity, including racial discrimination.”

The DOJ-DOE document also states that the Supreme Court decision “does not require institutions to ignore race” in their recruiting and outreach programs, “provided that their outreach and recruitment programs do not provide targeted groups of prospective students preference in the admissions process, and provided that all students—whether part of a specifically targeted group or not—enjoy the same opportunity to apply and compete for admission.”

The document goes so far as to say colleges and universities “may direct outreach and recruitment efforts toward schools and school districts that serve predominantly students of color and students of limited financial means.”

SFFA Watching for Racial ‘Proxies’

While the DOJ-DOE document describes ways that colleges and universities can indirectly factor in race and ethnicity in their admissions programs, opponents of the past race-based affirmative action programs may continue to challenge these new methods.

“The administrators of higher education must note: The law will not tolerate direct proxies for racial classifications,” SFFA founder and president Edward Blum said on June 29, shortly after the ruling. “For those in leadership positions at public and private universities, you have a legal obligation to follow the letter and the spirit of the law.”

In his June 29 statement, Mr. Blum said SFFA has already been monitoring the potential changes colleges and universities may take in their admissions practices.

“We remain vigilant and intend to initiate litigation should universities defiantly flout this clear ruling and the dictates of Title VI and the Equal Protection Clause,” he said.

NTD News reached out to Mr. Blum for comment after the Biden administration issued its new admissions guidance on Monday. He did not respond before press time.

From NTD News