The Biden administration on Monday released two documents intended to clarify what colleges can and can’t do as a result of the U.S. Supreme Court’s recent decision striking down race-conscious admissions. The bottom line: Though institutions have lost one crucial tool, they shouldn’t throw out their entire toolbox by abandoning broader efforts to enroll and support diverse students.
In a “Dear Colleague Letter,” officials in the U.S. Department of Justice and the U.S. Department of Education affirmed the educational benefits of diversity and pledged support for colleges “that recognize racial diversity is core to their commitment to excellence, and that pursue lawful steps to promote diversity and inclusion.” Fulfilling that commitment, the officials wrote, would require “sustained action to lift the barriers that keep underserved students, including students of color, from equally accessing the benefits of higher education.”
For colleges, the letter says, “this may mean redoubling efforts to recruit and retain talented students from underserved communities, including those with large numbers of students of color. It may likewise mean a greater focus on fostering a sense of belonging for students currently enrolled.” The letter was signed by Kristen Clarke, assistant attorney general for the Justice Department’s Civil Right Division, and Catherine E. Lhamon, assistant secretary for the Education Department’s Office for Civil Rights.
The two departments also released a question-and-answer resource on legally permissible practices. In what ways can admissions officers still consider an individual student’s race in admissions? Colleges, the officials wrote, quoting from the court’s majority opinion, “remain free to consider any quality or characteristic of a student that bears on the institution’s admission decision, such as courage, motivation, or determination, even if the student’s application ties that characteristic to their lived experience with race — provided that any benefit is tied to ‘that student’s’ characteristics, and that the student is ‘treated based on his or her experiences as an individual,’” and “‘not on the basis of race.’”
The document includes hypothetical examples of what applicants might share, in their admission essays or by other means. A college, it says, could consider an applicant’s description of what it meant to become the first Black violinist in his city’s youth orchestra; an applicant of South Asian descent’s account of overcoming prejudice after transferring to a rural high school; an applicant’s rendering of how learning to cook traditional Hmong dishes from her grandmother had “nurtured her sense of self”; and a school counselor’s explanation of how a Latina student at a predominantly white high school had overcome her feelings of isolation.
As for other steps, the document says, colleges can continue to consider applicants’ achievements in the full context of their circumstances, including financial means or socioeconomic status, as well as information about their neighborhood and high school, plus adversity they confronted, including racial discrimination: “Nothing in the [Supreme Court’s] decision prohibits institutions from continuing to seek the admission and graduation of diverse student bodies, including along the lines of race and ethnicity, through means that do not afford individual applicants a preference on the basis of race in admissions decisions.”
To that end, the document says, colleges may continue to rely on an array of existing practices, including targeted outreach, recruitment, and pathway programs: “The court’s 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 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.” That means colleges can continue to focus outreach and recruitment on schools and districts that predominantly serve minority and low-income students.
Colleges can also pursue pathway programs that help prepare students for college. “An institution may consider race and other demographic factors when conducting outreach and recruitment efforts designed to provide information about a pathway program to potential participants,” the document says. “If an institution awards slots or otherwise selects students for participation in its pathway program based on nonracial criteria (e.g., all 11th graders at a particular high school are able to participate, or all 10th graders in a geographic area with a certain GPA may apply), the institution may give pathway-program participants preference in its college-admissions process.” But colleges may not award slots based on an student’s race in and of itself, the document says. Still, they may “consider how race has shaped the applicant’s lived experience in selecting participants.”
Demographic Data and Student Aid
In light of the ban on the consideration of an applicant’s racial status, the Common Application now gives member institutions the option of hiding applicants’ race and ethnicity data from admissions officers. Some colleges have indicated that they will do just that. In a recent email to college counselors, for instance, Harvard College’s admissions office said that though applicants may still choose to disclose their race and ethnicity via the Common App’s check boxes, “that information will be suppressed for all applicants in the PDF of the application that our admissions offices receive for review.”
But does the court’s ruling compel colleges to shield check-box data from admissions staffs?
No, the federal officials said. The question-and-answer document released on Monday offers guidance on the use of applicants’ demographic information, which can help colleges refine outreach and recruitment strategies, ensure that admissions practices aren’t discriminatory, and develop more-effective campus programming for students who enroll. Colleges, the document says, may continue to collect demographic information, including on applicants’ race and ethnicity, “and use it for a variety of purposes, so long as that use is consistent with applicable privacy laws and ensures that demographic data related to the race of student applicants do not influence admissions decisions.”
So, no, a college doesn’t need to prevent admissions officers from learning an applicant’s race. (Institutions “can know what they come to know in reviewing a file,” a senior Education Department official said on Monday, adding that the ruling did not require admissions officers “to unsee what they’ve seen.”)
But, yes, given the Supreme Court’s criticism of colleges’ adjusting admissions priorities “dynamically” in response to data on the race of students in the admitted class, the Q&A document says, “institutions should consider steps that would prevent admissions officers who review student applications from using the data to make admissions decisions based on individual applicants’ self-identified race or ethnicity.”
The document does not offer any guidance in response to a common question: What, if any, impact will the Supreme Court’s ruling have on the use of race-conscious financial aid and scholarships? A senior Education Department official on Monday said that the new resources had taken up only those questions that the court considered in its opinion, which didn’t weigh in on institutional financial aid or scholarships.
This moment demands the same courageous commitment to equal opportunity and justice we saw from leaders at the height of the civil-rights movement.
EducationCounsel, a consulting firm that advises colleges on legal issues, recently published a draft of its preliminary guidance on complying with the court’s decision. It advises college to “examine financial-aid and scholarship policies and practices with care, given the complexities in design and execution of such programs.” Because the court effectively barred the consideration of an applicant’s racial status, that guidance says, the ruling “would suggest that any similar consideration of an applicant’s racial status in aid or scholarship decisions is, at a minimum, high risk of legal exposure.” But, EducationCounsel notes, there are important distinctions between admissions and aid decisions that might limit the ruling’s applicability to other policies and practices in higher education.
At a time when colleges are reassessing ways of gauging applicants’ attributes and achievements, Clarke and Lhamon wrote in their letter, institutions “can examine admission preferences, such as those based on legacy status or donor affiliation, that are unrelated to a prospective applicant’s individual merit or potential, that further benefit privileged students, and that reduce opportunities for others who have been foreclosed from such advantages. Colleges and universities can also work proactively to identify potential barriers posed by existing metrics that may reflect and amplify inequality, disadvantage, or bias.”
During a call with reporters on Monday, the U.S. secretary of education, Miguel A. Cardona, expressed hope that the new resources would provide clarity about admissions practices that remain lawful. “This moment demands a sense of urgency,” he said. “This moment demands the same courageous commitment to equal opportunity and justice we saw from leaders at the height of the civil-rights movement.”
Vanita Gupta, the associate attorney general, said that though the court’s decision changes the landscape in admissions, “it should not be viewed as an excuse to turn away from longstanding efforts to make those institutions inclusive.” She continued: “Colleges and universities can and should continue to ensure that their doors are open to those students of all backgrounds, including students of color, who possess the characteristics necessary to succeed and contribute on college campuses and in the world. Those include grit and perseverance, curiosity, and academic and personal excellence.”
The Education Department said it plans to release a report on promising diversity and inclusion practices in September. The report will include strategies for using measures of adversity in admissions, such as considering applicants’ financial means, their socioeconomic background and high-school context, and personal hardships or experiences with discrimination.
