As has been widely reported in the national media, on June 29, 2023, the United States Supreme Court, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), invalidated the affirmative action policies of two universities, drastically limiting the use of race-conscious admissions in higher education. The Court, by a 6-3 vote, held that Harvard’s and the University of North Carolina’s admissions policies considering an applicant’s race violated the Constitution’s Equal Protection Clause.
The details of the case have been extensively discussed in various contexts, but the ultimate question for institutions of higher education (IHEs) is “Now what?” Fortunately, the Court left IHEs with some means by which they can continue to pursue diverse student bodies.
While rejecting the consideration of race in college admissions policies, the Court explained that its decision should not be understood as “prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” For example, “a benefit to a student who overcame racial discrimination … must be tied to that student’s courage and determination,” or “a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.” Overall, a student may be evaluated based on his or her experiences as an individual but not solely on the basis of race.
Moving forward, IHEs must adapt their admissions policies and diversity efforts to comply with this decision. Since factors considered in evaluating an applicant’s suitability for admission cannot be merely race-based, IHEs should consider adopting policies that recognize student resilience in overcoming adversity in their lives. This “adversity standard” encourages IHEs to take into account the hardships a student has experienced along their path to education, including factors such as racial discrimination and socioeconomic disadvantages.
For example, as recently highlighted in an article by The New York Times, admissions offices may employ a “socioeconomic disadvantage scale” (SED) to evaluate their applicants. An SED considers applicants’ different life circumstances, such as family income, whether students come from an underserved area, whether students support their nuclear family, and their parents’ educational background. Other race-neutral tools, such as assessing an individual’s socioeconomic background, increased recruitment in underserved areas, expanded financial aid, and test-optional admissions can also help diversify college campuses.
In addition, IHEs can consider placing more emphasis on aspects of the overall enrollment process other than the admissions decision. Greater focus on recruiting in high schools with large minority populations could generate more diverse applicant pools for consideration by admissions committees. Similarly, after admissions decisions are made, targeting efforts to actually enroll minority applicants who have been admitted should enhance the diversity of the new classes each fall. These standards and criteria could help universities achieve their diversity goals while still complying with the Court’s recent ruling.
In a June 29 press release, the Biden Administration indicated that it will take steps to assist IHEs as they seek to maintain diverse campuses, including providing IHEs with guidance on lawful admissions practices, convening a national summit on equal opportunity in higher education, and releasing a report on strategies for increasing diversity and educational opportunities at IHEs. All three of those steps are slated for completion in the next 90 days. While the Department of Education may not be able to offer a regulatory safe harbor in 90 days, the standards the department will establish will provide IHEs with useful information as admissions policies are revised.
Without question, the Court’s decision in SFFA now requires IHEs to reimagine means to achieve greater diversity in their student bodies, but the enormous benefits of diverse campuses will make such efforts worthwhile.
