On August 14, 2023, the Biden Administration released its first guidance on how institutions of higher education may lawfully pursue efforts to recruit and admit diverse student bodies in light of the Supreme Court’s recent decision rejecting race-conscious university admissions policies in two companion cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199; and Students for Fair Admissions, Inc. v. University of North Carolina et al., No. 21-707 (“SFFA”). In SFFA, the Supreme Court held that Harvard’s and the University of North Carolina’s consideration of applicants’ race in their undergraduate admissions processes violated the Equal Protection Clause of the Fourteenth Amendment and Title VI or the Civil Rights Act of 1964 (“Title VI”). Although SFFA only directly addressed university admissions, the potential impact of the decision on other higher education diversity-related initiatives and programs, including aid, recruitment and retention strategies for underrepresented students, has raised significant questions for colleges and universities.

The Administration’s guidance—issued jointly by the Department of Education’s Office for Civil Rights and the Department of Justice’s Educational Opportunities Section—aims to address some of these questions related to recruitment and retention. The guidance is set forth in a “Dear Colleague” letter, accompanied by a questions-and-answers document.

Broadly, the guidance affirms the Administration’s support for “institutions that recognize that . . . diversity is core to their commitment to excellence, and that pursue lawful steps to promote diversity and full inclusion.” It notes that, although the Court limited the ability of colleges and universities to consider an applicant’s race “in and of itself as a factor in deciding whether to admit the applicant,” higher education institutions remain free to consider and give weight to “any quality or characteristic of a student that bears on the institution’s admission decision, such as courage, motivation, or determination,” even if that student’s application “ties that characteristic to their lived experience with race”—provided that any such consideration is tied to the individual student’s characteristics. This is consistent with Justice Roberts’ opinion for the Court that the decision should not “be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life[.]” To that end, the guidance encourages colleges and universities to review their admissions policies and practices to “ensure they identify and reward those attributes that they most value, such as hard work, achievement, intellectual curiosity, potential, and determination.”

The guidance also emphasizes that nothing in the SFFA decision prohibits colleges and universities from “continuing to seek the admission and graduation of diverse student bodies generally, including along the lines of race or ethnicity,” provided they no longer afford individual applicants an advantage in the admissions process because of their race. As such, schools retain significant latitude to implement strategies intended to recruit and retain talented students from underserved communities, that “remove barriers and expand opportunity for all.” The guidance addresses the following areas:

• Targeted Outreach and Recruitment Programs: It remains lawful for institutions of higher education to take steps to expand the pool of applicants they ultimately consider for admission. The guidance makes clear that the SFFA decision “does not require institutions to ignore race” when identifying prospective students for targeted outreach and recruitment, although it cautions that such efforts should not provide targeted groups with preferences in the admissions process. Institutions may continue to consider race—along with other attributes like geography, financial means, and family background—in directing their outreach and recruitment efforts, which could include, for instance, targeting schools that serve predominantly students of color and those of limited financial means; low-performing schools; and schools whose geographic location is underrepresented in the application pool. The guidance also encourages institutions to investigate whether certain admission requirements—including application fees, standardized testing, or early decision programs—are “inadvertently screening out students” who would otherwise contribute greatly to their campus. Conversely, the guidance suggests that colleges and universities may wish to examine admission preferences—including those based on legacy status and donor affiliation – to understand whether such preferences “run counter to efforts to promote equal opportunities” for all students.
• Pipeline Programs: Colleges and universities may continue to offer pipeline programs that are intended to expand the pool of college-ready applicants, including partnerships with particular schools, student-centered organizations and summer enrichment camps. Although the guidance notes that colleges and universities may not award slots in pipeline programs based on an individual’s race, it clarifies that institutions may continue to consider race—along with other demographic factors—in targeting outreach and recruitment efforts in connection with a pipeline program. And, importantly, it notes that where an institution’s pipeline program selects students for participation based on non-racial criteria—such as all students of a certain grade from a particular geographic area—the institution may continue to give pipeline program participants preference in its admissions process.
• Collection of Demographic Data: Institutions may continue to collect demographic information about their applicant pool, student admissions outcomes, and enrollment and retention, provided that such collection complies with applicable privacy laws, and that institutions take steps to ensure that race-related demographic data does not influence admissions decisions—including, for instance, by limiting admissions officers’ access to the data during the review process.
• Holistic Review and Race-Neutral Criteria: As part of their holistic review, colleges and universities may continue to consider a broad array of factors “that shape an applicant’s lived experience,” including socio-economic status, experiences of adversity including discrimination, bilingualism, family background, Tribal Nation affiliation, and information about their neighborhood and high school. Institutions “committed to increasing access for underserved populations,” for example, may aim to bring in “more first-generation college students or Pell-grant eligible students.” And institutions that employ race-neutral admissions strategies—such as offering admission to all students ranked in the top portion of their high school class—may continue to do so.
• Yield and Retention Strategies: Finally, colleges and universities may continue to take steps to foster “a sense of belonging and support” for underrepresented students on campus through DEI-focused offices, campus cultural centers, clubs and affinity groups with a race-related theme, and other campus resources, provided such support services are “open to all students regardless of race.”

Although the federal guidance does not address many of the other concerns raised in the aftermath of the SFFA decision—including what the decision means for hiring, financial aid and scholarships for particular racial groups, it does offer colleges and universities at least a preliminary path to achieving diverse classes, while complying with the Court’s decision.

With one of the leading Education Practices in the nation, WilmerHale understands the unique issues and mounting pressures facing educational institutions as they navigate the SFFA decision. The firm assists colleges and universities in a wide range of matters, including by providing strategic counsel to clients on admissions and scholarship policies and developing best-in-class policies and procedures, ensuring that schools are complying with regulatory requirements, defending schools in civil litigation and government investigations, and conducting internal investigations regarding sensitive and high-profile issues.