Department of Education Releases Updated Q&A on Achieving Diversity in Higher Education

August 31, 2023

On August 15, 2023, the Department of Education and the Department of Justice released a Question and Answer Resource on achieving student diversity at colleges and universities. Two months after the U.S. Supreme Court held that the University of North Carolina and Harvard University violated the 14th Amendment and Title VI by “impermissibly using race in their undergraduate admissions process,” the Department summarizes the decision and provides guidance on how institutions can approach diversity in admissions moving forward. Below are our top takeaways: 

1. Considering the Race of Prospective Students: The Department emphasizes that the Court’s opinion does not prohibit institutions from “considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”  Thus, the guidance encourages institutions to utilize a “holistic application review process” that reviews the student’s background and attributes.  For example, the Department states that an institution could consider an applicant’s description of what being the first Black violinist in his city meant to him. The guidance also notes that institutions may consider a student’s “lived experience with race,” but must ensure the student is “treated based on his or her experiences as an individual [and] not on the basis of race.” 

2. Institutions Prioritizing a Diverse Student Body: According to the Department, institutions may “continue to articulate missions and goals tied to student body diversity” and can “remove barriers and expand” equal opportunity. When determining admissions, the Department states that schools can “consider the full range of circumstances” that a student faced during their lifetime, including socio economic status, neighborhood, educational history, including discrimination. To achieve diverse student bodies, the Department identifies “existing practices” institutions may continue to utilize. These include: 

a. Outreach Programs (i.e., Targeted Outreach, Recruitment, Pathway Programs): According to the Department, the Court’s decisions do not require schools to “ignore race” when developing outreach and recruitment strategies. However, institutions must ensure that such programs do not provide “target groups… preference in the admissions process.” 

b. Collecting Demographic Data: The Department states that institutions can continue to collect demographic information “so long as the use is consistent with applicable privacy laws… and that the data related to the race does not influence admission’s decisions.” 

c. Evaluating Admissions Policies: Colleges and institutions remain free to “carefully evaluat[e]” best practices in their admissions practices and increase educational access.  Institutions may place value during admission decisions on a “wide range of factors that shape an applicant’s lived experiences.” 

d. Student Retention Programs: The Department highlights that an important part of the college experience is retaining students from diverse backgrounds. Thus, the guidance states that institutions may “foster [a] sense of belonging and support through its office of diversity, campus cultural centers, and other campus resources” if it is available to all students. Institutions may also offer clubs, and affinity groups, including groups with a “race related theme” so long as they are open to all students regardless of race. 

Since the Supreme Court’s decision, there have also been other developments in college admissions. On July 15, 2023 Lawyers for Civil Rights, a non-profit organization in Boston, sued Harvard University over its legacy admissions practices on behalf of Latino and Black advocacy groups.  On July 25, 2023, the Office for Civil Rights confirmed that it was investigating Harvard’s legacy admissions policies and procedures. In light of the SCOTUS decisions, some institutions have changed their admissions strategy. For example, on July 19, 2023, Wesleyan University, a college in Connecticut, announced that it was ending its legacy admissions policies.  Also recently, the American Alliance for Equal Rights filed a lawsuit against a Florida law firm challenging the firm’s diversity fellowships, alleging the fellowship excluded applicants based on their race. 

Given this recent guidance and legal developments, we predict diversity in educational settings and employment will remain a highly relevant topic for the Department. To stay up to date on our blogs and announcements, follow us on LinkedIn or bookmark the Blog Section of our website.