How can colleges and universities respond to the U.S. Supreme Court’s Students for Fair Admissions decision? Alston & Bird and Huron Consulting offer strategies institutions can use to retain their diversity, equity, and inclusion (DEI) initiatives in the face of federal and state actions against them.

• The Departments of Justice and Education have offered specific recommendations for the admissions process
• Some schools are offering havens for out-of-state students seeking more secure environments
• Five ways institutions can lead and maintain their DEI initiatives

On June 29, 2023, the U.S. Supreme Court dealt a blow to race-conscious admissions policies in its ruling against Harvard College and the University of North Carolina. Despite the repercussions of the Students for Fair Admissions (SFFA) decision, there are opportunities for colleges and universities to comply with SFFA and state laws while championing their values of diversity, equity, and inclusion (DEI).

SFFA and Its Fallout

In a 6–2 decision, the Court sided with Students for Fair Admissions Inc., holding that Harvard’s and UNC’s admissions policies violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 because the policies failed to meet the “core purpose” of the Equal Protection Clause, which Chief Justice Roberts described as “doing away with all governmentally imposed discrimination based on race.”

Importantly, while SFFA has and will have widespread impacts on college admissions for many students, the Brookings Institution reports that “admissions at most colleges will be unaffected” by the decision. According to research and review of federal data, 76% of “the most competitive institutions” use race-conscious admissions, “but this percentage declines consistently with selectivity. In the three least selective categories, which together account for over half of enrollment, 8% or less of students attend colleges that used [race-conscious practices].” Nonetheless, in the wake of the Court’s decision, colleges and universities have struggled to find methods to, as the Departments of Justice and Education describe, “provide students the educational benefits that derive from diverse and vibrant campus communities.”

Shortly after the Court announced its ruling, the departments published a Dear Colleague Letter and Questions and Answers to numerous questions related to the case “to help colleges and universities understand the Supreme Court’s decision as they continue to pursue campuses that are racially diverse and that include students with a range of viewpoints, talents, backgrounds, and experiences.”

Important Guidance from the Departments of Justice and Education

The departments offered higher education institutions strategies to continue their efforts to ensure that diverse students have equal access to higher education and that all students can benefit from a diverse student population. In particular, the departments encouraged institutions to “consider the ways that a student’s background, including experiences linked to their race, have shaped their lives and the unique contributions they can make to campus” as part of the admissions process and made clear that the Executive Branch remained “commit[ted] to ensuring that educational institutions remain open to all, regardless of race.”

A few specific recommendations include:

• Conducting a holistic application-review process.
• Reviewing admissions policies to ensure they identify and reward attributes that the institution most values, such as hard work, achievement, intellectual curiosity, potential, and determination.
• Proactively identifying potential barriers posed by existing metrics that may reflect and amplify inequality, disadvantage, or bias.
• Providing 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.
• Encouraging applicants to present their whole selves when applying to college, without fear of stereotyping, bias, or discrimination.
• Examining 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.

The departments’ clear outline of potential ways colleges and universities may lawfully consider race as part of a holistic review of students’ credentials and unique qualities, and the reality that the SFFA decision did not outlaw any on-campus activities, did not stop an onslaught of attacks on diversity, equity, and inclusion (DEI) efforts at higher education institutions. Numerous states have passed legislation or executive orders placing restrictions on DEI initiatives at public colleges. And even in states that have not passed DEI restrictions, multiple institutions have rolled back or paused DEI initiatives.

Where Do We Go from Here?

In response to the barriers imposed by SFFA and state law, some institutions have found innovative ways to maintain their DEI values while still meeting the letter of state restrictions and the SFFA decision. For example, Texas A&M University published “FAQs to provide guidance to System universities and agencies on the implementation” of Texas DEI restrictions while continuing to support equity and inclusion efforts. Texas A&M promoted events that “support diversity in a general way” but don’t “promote preferential treatment of any particular group and are open to everyone.” It also highlighted that student organizations may “host a multicultural event or program, even one that may include DEI elements, … because student organizations are exempted from the limitations of” the law.

Likewise, schools in states not effected by DEI bans have also stepped up to manage the impact of new restrictions. For example, Colorado College enacted the Healing and Affirming Village and Empowerment Network, or HAVEN program “for students transferring from states considering or implementing anti-diversity, equity and inclusion laws.”

Opportunities for DEI at Colleges and Universities

While institutions have had to reevaluate policies and practices to be in compliance with SFFA and any state legislation restricting DEI initiatives, now is an excellent time for colleges and universities to lead in a way that centers the dignity of all members of their communities. Undoubtedly, in a landscape of emergent restrictions, this effort may feel daunting. Campuses can reclaim hope through consideration of the following five invitations:

No. 1 – The Invitation to Lead and Communicate with Clarity of Mission and Values

Colleges and universities are values-based organizations, and now is the time for institutional leaders to lead from a space of hope and inspiration, guided by their institutional missions. What are the hallmark characteristics of community at your institution? How do artifacts of messaging, community engagement, programming, and educational experiences reflect the institutional mission? While the national landscape may feel heavy, offering consistent and unified messaging grounded in hope and rigorous optimism from institutional leaders, informed by the institution’s mission, will go a long way to champion community on campus.

No. 2 – The Invitation to Affirm a Sense of Belonging

Institutions have an opportunity to develop and strengthen initiatives that affirm a sense of belonging for all members of the campus community. Informed by institutional values, how can institutions develop a shared ethos of belonging for all members of their communities in a way that demonstrates that their stories and lived experiences add value to the community? There is an opportunity to broaden institutional storytelling that reflects expansive narratives of students from a breadth of backgrounds. The Gallup organization has done extensive research on collegiate populations, and of the six thematic indicators that influence thriving, the most significant contributors to student thriving include students feeling cared for by a faculty member/educator/coach, and access to mentorship.

No. 3 – The Invitation to Invest in the Student Experience

As a society, we learned a great deal about the significance of community and interpersonal connection during the COVID-19 pandemic. In 2023, the U.S. surgeon general released an advisory on the epidemic of loneliness and isolation in the United States. The impact of social isolation has a disproportionate impact on the college student population, resulting in increased depression and anxiety, ideological polarization, and overall decline in long-term health. Student affairs organizations are equipped to provide opportunities for students to join organizations, seek out leadership and service opportunities, and develop social community on campus. These experiences further amplify a sense of belonging—and institutions have a duty of care to ensure all students have access to these experiences. Now is the time to reinvest in the student experience and underscore its significance in the advancement the institution’s mission and the elevation of collective well-being.

No. 4 – The Invitation to Evaluate and Strengthen Student Success Initiatives

How do institutions fulfill the promise to advance student success? How do they evaluate the effectiveness of student success initiatives on their campuses? Now is the time for elevated rigor and disciplined use of data to inform institutional student success strategies. There is an opportunity to understand where the institutional ecosystem may not be meeting the needs of students, where there may be institutional barriers, and where interventions have been effective in supporting student needs. For example, if there is a connection between first-generation students, socioeconomic status, and living off-campus, is access to parking a barrier for class attendance and student success? And does this barrier have a disproportionate impact on a vulnerable student population? Student success strategies need to consider the full ecosystem of the institution—considering factors such as academic advising, mentorship and engagement opportunities, financial resources, and any additional wraparound support students may need.

No. 5 – The Invitation to Champion Well-Being

Today’s college students bring complex truths and lived experiences to campus, and student mental health continues to be a concern, with disproportionate impact on students from underserved backgrounds. There is an opportunity to ensure that all students have access to mental health support and community care through campus wellness centers. Now is also a time to elevate well-being as a key component of campus culture. While access to mental health care is critical, developing a campus ecosystem where students have access to multidimensional well-being experiences can transform a campus culture.

These invitations are intertwined and a reminder that there is an opportunity to create caring communities and support students when transcending functional area silos. They are meant to be an institutional calling for an elevated strategy that enriches an ecosystem grounded in dignity for all students and campus constituents, allowing institutions to adhere to DEI values while complying with the dictates of SFFA and state law.

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