By now, the Supreme Court's June 2023 Students for Fair Admissions decision overturning affirmative action precedent, which Venable wrote about here, here, and here has prompted institutions of higher education (IHEs) to review their admissions programs and recalibrate their decision-making processes for student applicants. Most IHEs are prudently revising (or have already revised) their policies and procedures to effectuate neutral admissions decisions in response to the Supreme Court's rebuke of race-conscious college admissions programs. But what happens if an IHE's administration receives a complaint that its admissions office might still be making some decisions based on an applicant's race? Or, what if there is merely the perception that the admissions office could still be considering race—for example, by maintaining the admissions office's access to demographic data in the school's system while admissions decisions are being made? Could it be enough to raise an inference of race-conscious decision-making if an admissions officer observes applicants' perceived race during pre-admission interviews?

Some legal professionals believe that IHEs' legal exposure after Students for Fair Admissions, even while still collecting race demographic data, will be minimal. Others have pondered whether IHEs that accept federal funding could face astronomical damages for potential federal False Claim Act violations. In the IHE space, False Claims Act allegations typically arise in the context of misusing federal grant funds or improperly charging costs to federal grants. False Claims Act liability carries steep financial consequences—treble damages plus significant penalties that can easily exceed tens of millions of dollars. One untested theory for False Claims Act liability arising from admissions practices could be that certifying compliance with Title VI's prohibition on racial discrimination to obtain federal funding constitutes a false claim where the IHE is knowingly using race in admissions decisions. Acting "knowingly" under the False Claims Act includes actual knowledge of, reckless disregard for, or deliberate ignorance of the falsity. See 31 U.S.C. § 3729.

While the answer to the above questions is currently—and will remain for some time—"to be determined" by how the law evolves post-Students for Fair Admissions, one thing is for certain: IHEs should treat reports of suspected use of race in admissions decisions like any other report of improper conduct and investigate it thoroughly.

If an IHE administrator receives a report that an applicant's race is being considered as a factor in admitting the applicant, the IHE should promptly:

• Inform the general counsel's office, designated compliance officer, or external legal counsel so they can investigate the report;
• Take necessary interim measures to mitigate the risk that the alleged behavior is continuing;
• Take steps to ensure the individual who made the report is not retaliated against for raising a concern;
• Review data collection, data storage processes, and admissions processes and procedures to confirm they are neutrally maintained;
• If a violation is found, review the current admissions program policies and practices to confirm that race-neutral directives and expectations are clearly communicated to admissions officers and staff, and train admissions decision makers on compliance with the IHE's policies and practices for maintaining race-neutral admissions.