In June 2023, the U.S. Supreme Court announced its decisions in SFFA v. Harvard and SFFA v. UNC. The 6-3 opinion rejected racial preferences in the context of college admissions, spoke broadly against the use of race by government actors and schools bound by federal civil rights law, and was a significant win for the principle of colorblindness.
Nevertheless, on August 14, 2023, the Department of Education (ED) and the Department of Justice (DOJ) released a joint “Dear Colleague” letter (Joint Letter) and a questions and answers document (Q&A). The August 14 Guidance documents purport to explain how, even after the Supreme Court’s decision, colleges and universities may continue to consider race—and even engage in some race-based decision-making—to seek their vision of racial diversity.
Ten days later, on August 24, ED’s Office for Civil Rights (OCR) released a second piece of guidance. It was also described as a “Dear Colleague” letter and addressed race and school programming topics at K-12 and post-secondary institutions. The guidance purports to guide schools regarding how they may “develop curricula or engage in activities that promote racially inclusive school communities.”
ED and DOJ’s Reading of SFFA
To their credit, the August 14 documents acknowledge the SFFA decision, and they describe how the agencies are bound to follow the Court’s opinion as they consider whether schools are complying with the Constitution and Title VI of the Civil Rights Act of 1964 (which bars race discrimination by recipients of federal funds, even if they are private schools like Harvard). The acknowledgment will likely be noticed by colleges that previously used race as a factor in their admissions, given that OCR has the authority to investigate complaints of race discrimination without the need for anyone to file a formal lawsuit.
On the other hand, the documents read SFFA to nevertheless leave open the door to other forms of race-based decision-making by schools. For instance, while SFFA rejected the idea that race fundamentally determines an individual’s personality and character traits, the August 14 documents specifically assert that a school’s decision to foster racial diversity invariably leads to “livelier and more informative classroom discussions, breakdown of prejudices and increased cross-racial understanding, and heightened cognitive development and problem-solving skills.”
The August 14 documents also encourage racially targeted retention policies to maintain the presence of individuals of certain racial demographics among matriculated students. These measures may include adopting need-based financial aid programs or instituting “DEI-focused offices, campus cultural centers, clubs and affinity groups with a race-related theme.”
Similarly, the August 24 document argues that campus cultural centers, clubs, or affinity groups with a race-related theme are never “subject to heightened legal scrutiny under Title VI because of the race-related theme of the group, if students are not excluded or treated differently because of their race.” In the same vein, the August 14 documents suggest that colleges and universities may obtain and review the racial demographic data of applicants and the student body to evaluate their efforts to attract and retain individuals of certain racial demographics, as long as the data is not directly used in admission decisions.
Additionally, the August 14 documents say that colleges and universities still have broad latitude, even after SFFA, to explicitly consider race outside of the college admissions context, especially in recruitment and college-readiness programs. One stark example is that the documents state that colleges can legally target their recruitment efforts at specific high schools based on their racial demographics. The August 14 documents advise that using race to target attendees of college-readiness programs or student information sessions is still permissible, if these events are technically open to students without regard to their race.
The August 14 documents also address the important question of whether schools may use facially race-neutral measures with the conscious goal of impacting their racial demographics. ED and DOJ say “yes.” Notably, there is a pending petition for certiorari presenting this issue before the U.S. Supreme Court, in the Coalition for TJ matter.
Separately, while the August 14 Q&A document concedes that the direct use of race as a factor in college cannot survive strict scrutiny after SFFA, it highlights the Court’s own admonition that nothing prevents schools from considering whether a student has overcome personal challenges—including race discrimination—so long as these efforts are not a subterfuge for direct racial preferences.
Whether using a proxy to achieve racial diversity may be legal is an open and developing question. Critics often point to “Grandfather Clauses” enacted after the Civil War—facially race-neutral provisions that were meant to disproportionately disenfranchise recently freed slaves—as an example of clear race discrimination. On the other hand, defenders may say that targeting and recruiting efforts do not “discriminate” against anyone because they do not cause any individual person to be disadvantaged by race, and technically someone of any race may benefit from such programs. Thus, to the extent that they seek to enhance racial diversity—and do not invidiously discriminate against individuals—ED and DOJ contend that these proxy measures may be constitutionally permissible.
ED and DOJ’s Suggested Strategies for Retention
The August 14 documents separately provide specific strategies that the agencies say are still legal after SFFA. The Q&A, for instance, says that a school may “foster [a] sense of belonging and support through its office of diversity, campus cultural centers, and . . . may also offer or support clubs, activities, and affinity groups—including those that have a race-related theme—to ensure that students have a space to celebrate their shared identities, interests, and experiences, so long as the [offices,] clubs, activities, and affinity groups are open to all students regardless of race.” The August 24 guidance follows up on these suggestions by giving hypothetical scenarios in which OCR would or would not have reason to open an investigation. Ultimately, that guidance takes the position that campus groups may “expressly limit their agendas and focus” to students of particular identity groups “as long as none of the groups or events exclude or limit individuals’ participation based on race.” In support of its recommendations, OCR cites the “long history of [schools] offering clubs and activities designed to ensure that students can celebrate their identities and interests and talk through common experiences in a supportive environment.”
The August 24 guidance does not address the concern that racially-focused school programming may, in effect, either be directly discriminatory, or at least create a hostile environment for individuals who are discouraged from participating based on their race. In one example of permissible programming, the August 24 letter describes a hypothetical district sponsorship of a “National Black Parents Involvement Day,” and companion focus groups that expressly limit their agendas and focus to Black students and/or parents. OCR says that such hypothetical events are permissible because technically anyone may participate, regardless of race. The letter does not address the counterargument that a reasonable person might feel discouraged from attending or completely excluded by a race-targeted event, and that such events by nature segregate by race or even create a hostile environment for potential participants of other races.
As a formal matter, both the August 14 documents and the August 24 letter lack the force of law. They did not, for instance, go through notice and comment rulemaking under the Administrative Procedure Act. The agencies themselves disclaim that the documents create new rights or obligations, or even that they bind the agencies themselves. Yet they send powerful signals to schools nationwide. And even more guidance will likely be issued soon. The Biden Administration has already announced that in September 2023, it will issue guidance on “how to use measures of adversity in admissions to cultivate a diverse student body.”
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