Institutions of higher education (IHEs) and prospective applicants continue to grapple with the shifted landscape of admissions practices after the United States Supreme Court's Students for Fair Admissions decision (Decision) struck down race-conscious admissions last year, (see prior Venable articles about the Decision here, here, here, and here). Since the June 2023 Decision, new challenges to race-conscious policies or programs in higher education continue to emerge.
IHEs should be aware of the changing tide in their courts and legislatures. Some states have already passed laws restricting Diversity, Equity, and Inclusion (DEI) efforts for public entities including IHEs; many other states have recently introduced bills that would do the same, and are making their way through the legislative process. For example, in March 2024, a bill was signed into law in Alabama (S.B. 129) that prohibits certain public entities (including public colleges) from maintaining a DEI office and sponsoring DEI programs. It goes into effect on October 1, 2024. Similarly, bills restricting DEI offices, efforts, or their funding have been introduced in 2024 and are still pending in Idaho (S.B. 1357), Iowa (H. File 2558), Kentucky (H.B. 9), Missouri (S.B. 1314/H.B. 2619), Nebraska (L.B. 1330), Oklahoma (S.B.1303, S.B. 1678), South Carolina (H.B. 4663), West Virginia (H.B. 4387), and Wyoming (S. File 130). Some states have also introduced bills restricting mandatory DEI training.
In addition to legislating about DEI infrastructure, this new wave of legislation also touches upon admissions processes. For example, Indiana introduced a bill in January 2024 (S.B. 202) that limit IHEs' admissions considerations by prohibiting IHEs from using applicants' diversity statements to make admissions decisions. In a similar vein, Arizona introduced a bill in January 2024 (H.B. 2483) that would prohibit public colleges from using any "facially neutral factor" in admissions decisions that "correlates" with religion, race, sex, color, ancestry or national origin. Some states have signed such restrictions into law, like Utah's law prohibiting IHEs from collecting certain demographic information and making admissions or hiring decisions based on an applicant's identity-based characteristics, which will go into effect July 1, 2024.
In addition to a changing legislative landscape, the prospect of litigation also looms. As an example of the potential far-reaching impact of the Decision, a lawsuit was filed against a law school in October 2023 alleging its Law Review journal's consideration of race and sex in its application process violates federal antidiscrimination law. The student-plaintiff is seeking class-action status for all white heterosexual male students who have or will apply to the university's Law Review journal. Lawsuits were also filed by advocacy groups against law firms alleging reverse discrimination because the firms' diversity fellowship programs for law students impermissibly limited applicants to "diverse" or "underrepresented" backgrounds. Even more recently, last month a law student filed a lawsuit against a professional sports team alleging its intern job posting seeking a "person of color and/or female law student" was impermissibly discriminatory. Additionally, the United States Department of Education, Office of Civil Rights (OCR) has received several complaints post-Decision alleging race or national origin-based discrimination in admissions against IHEs and K-12 school districts in violation of Title VI of the Civil Rights Act. Further, while the Decision specifically carved out United States military academies, excepting them from the reach of the Supreme Court's holding on race-conscious admissions practices based on their "potentially distinct interests," the Students for Fair Admissions—the same organizational plaintiff in the Decision—filed lawsuits in Fall 2023 against the United States Military Academy at West Point and the United States Naval Academy to specifically challenge their race-conscious policies. This lawsuit is currently being heard by a federal appellate court and the Supreme Court has declined the plaintiffs' request to temporarily ban the U.S. Military Academy from considering race in admissions.
With no sign of slowing challenges to the race conscious evaluation of applicants in the wake of the Decision, many IHEs are focusing on recruitment and retention efforts of diverse students before and after the application process. For example, many believe the Decision narrowly applies only to the consideration of an applicant for admission and does not govern pre-application outreach to high schools in underrepresented areas. Accordingly, some IHEs are implementing efforts to make earlier contact with prospective applicants, such as ninth or tenth graders, to encourage eventual applications from students in targeted demographic areas or schools. Removal of application barriers to selective IHEs, including reconsidering the use or importance of test scores; limiting or eliminating legacy admissions practices; and considering ways in which IHEs can make college more affordable for low-income students are some measures IHEs are focusing on to increase enrollment of diverse students without considering applicants' protected characteristics. Similarly, IHEs are continuing to consider ways in which they can make the campus environment welcoming and inclusive to diverse students after they matriculate, both to encourage diverse students to apply to the IHE and then to sustain their retention after enrolling.
Advocacy organizations, IHEs, and K-12 schools alike are all grappling with new ways in which enrollment opportunities can increase for diverse students and new policy, procedure, and outreach initiatives will continue to materialize. When an IHE is considering or effectuating new admissions-related measures, one thing is for certain: the IHE must adhere to antidiscrimination laws, and IHEs should consult with legal counsel prior to implementing new programs and initiatives to assess any potential risks.
