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Is it possible for colleges and universities to comply with both the Supreme Court’s decision in SFFA v. Harvard and accreditation standards that include diversity mandates? Last month, two members of the United States Commission on Civil Rights—Gail Heriot and Peter Kirsanow—sent letters to Senator Bill Cassidy, Chair of the Senate Committee on Health, Education, Labor & Pensions, and Representative Tim Walberg, Chair of the House Committee on Education & Workforce, alerting them to the apparent conflict between existing accreditation standards and the Supreme Court’s SFFA opinion which held that the use of racial preferences in higher education admissions violates the Constitution.

Commissioners Heriot and Kirsanow urged Congress to amend the Higher Education Act “to make clear that accreditors are prohibited from pressuring individual colleges or universities into engaging in illegal racial preferences.”

“We support the Supreme Court’s SFFA decision,” they went on to say, “both because it is consistent with the relevant constitutional provisions and Title VI of the Civil Rights Act of 1964, but also because the very large admissions preferences that up to now at least were commonly practiced by colleges and universities have tended to harm rather than help their intended beneficiaries.” “Nonetheless, many news reports indicate that many colleges and universities intend to covertly discriminate anyway. The situation will be made worse by accreditors that browbeat colleges and universities into violating the law. That’s why it’s important that Congress act now.”

Some accreditors for academic institutions and programs have made known their contempt for state antidiscrimination laws, including California’s Proposition 209. For example, the American Bar Association’s Council of the Section on Legal Education and Admissions to the Bar states in an official commentary on its standards, “The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, or ethnicity in admissions or employment decisions in not a justification for a school’s non-compliance with [ABA diversity standards.]” There is no reason to believe accreditors will treat the Supreme Court’s decision in SFFA with any greater respect.

Interestingly, a few days after the letters were sent, the ABA announced that it had suspended enforcement of its diversity standards. Of course, suspending enforcement is not the same as repealing. The ABA does not claim that its decision is permanent. Moreover, many accreditors have not suspended enforcement of their diversity standards. Commissioners Heriot and Kirsanow have stated that they believe the ABA’s action is insufficient and that it will take legislation to correct the problem.  

Read the full letter to Senator Cassidy.