ERN Pens Open Letter to Stakeholders in Higher Ed Diversity

Blogs, Letters & Testimonials

August 15, 2023

To:  Stakeholders in Higher Ed Diversity
From:  Education Reform Now
Date: 16 August 2023
Subject: Biden Administration’s Response to SFFA Decision

On August 14, the Departments of Education (ED) and Justice (DOJ) released a document entitled “Questions and Answers Regarding the Supreme Court’s Decision in Students For Fair Admissions, Inc. V. Harvard College and University Of North Carolina (SFFA).”  Education Reform Now (ERN) applauds the Biden Administration’s commitment to advancing diversity and opportunity in higher education and its affirmation of an array of legal practices that help colleges and universities realize that shared mission. ERN also looks forward to guidance that will clarify outstanding questions about how the SFFA decision affects students, educators, policymakers, and other stakeholders.

We want first to highlight and express our appreciation for some of the key points made in the Q&A document:

  • The SFFA decision was not a ruling on “affirmative action.”
    •  While some parties want to claim that the reach of the majority opinion goes much further than what the court said, the Biden Administration usefully reminds us all that the “Court in SFFA limited the ability of institutions of higher education to consider an applicant’s race in and of itself as a factor in deciding whether to admit the applicant.”
    • The phrase “affirmative action” appears nowhere in the majority opinion.
  • The Court made it clear that universities and colleges may continue to consider “how applicants’ individual backgrounds and attributes—including those related to their race, experiences of racial discrimination, or the racial composition of their neighborhoods and schools—position them to contribute to campus in unique ways.”
    • The SFFA ruling was unambiguous about the legality of asking applicants about how their identity has shaped them and their potential contribution to a campus community.
    • It was good to see ED and DOJ clarify that this information need not come just from a student, and that school counselor or other recommender could address, for instance, “how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team.”
  • The SFFA decision was not a ruling on the value of diversity or on colleges’ and universities’ legal right to pursue and promote diversity.
    • ED and DOJ make it clear that “nothing in the SFFA decision prohibits institutions from continuing to seek the admission and graduation of diverse student bodies, including along the lines of race and ethnicity, through means that do not afford individual applicants a preference on the basis of race in admissions decisions.”
  • Targeted outreach, recruitment, and pathway programs remain legal, and the decision does not require institutions to ignore race in these programs.
    • We want to note that the Q&A indicates that participants in these programs may be given preference in the college admissions process, as long as spots in those programs are not awarded on the basis of race. So, a college could run a summer program and target schools by certain demographic characteristics and, as long as all students have the chance to apply to such a program, then give preference to students who participated.
  • Colleges and universities can continue to collect data on racial and ethnic identity and use that data in recruitment, outreach, and pathway programs, as well as in examining how their extant admissions practices may be racially discriminatory and in the development of programs addressing student needs, (e.g., creating a safe campus climate for all students).
    • Colleges may not use that data during the admissions process to influence decisions. In other words, demographic data on race and ethnicity cannot be used during the process known as shaping a class, in which admissions offices consider the current demographics of students they are considering for admission.
  • Colleges should use the decision as an opportunity to reflect on how other admissions processes, including legacy admissions, may run contrary to their mission to promote diversity and equal opportunity.
  • Colleges can continue to use a holistic admissions process that employs race-neutral and race-blind practices (e.g., percent plans, preferences for first generation applicants, contextual information about an applicant’s school or neighborhood) as a way to pursue their mission.
  • The decision does not affect yield and retention strategies that may include building a sense of belonging and support on campus. Offices of diversity, affinity groups, cultural centers, and other efforts that center race but are not racially exclusive remain legal.
    • ERN wants to flag the increased importance of these efforts to create a welcoming campus climate in response to the SFFA decision as a way to prevent lower enrollment rates for students of color from becoming a reinforcing feedback loop in which students of color are less interested in applying to or enrolling in colleges and universities where they may not feel part of a community.

ERN also encourages the following from ED and DOJ:

  1. Action, not just guidance: While we understand that the Q&A today was intended to clarify for colleges and universities what they can still legally do to increase diversity and opportunity–and we sincerely appreciate that important work–we worry that too much of the responsibility here is being left on higher ed. We hope that the Biden Administration will embrace more active efforts through both the bully pulpit and executive orders that demand admissions reform for colleges to, for example, end the use of legacy preferences or to expand the collection of admissions data to include information about race and ethnicity in all stages of the process and in practices like legacy admissions, early decision, and early action policies. We hope ED takes seriously Representative Bobby Scott’s recent written request that the Department “fully investigate how race unjustly permeates many other policies and practices in our educational system.” 
  2. Guidance on financial aid and scholarships: It took 27 minutes for the Attorney General of Missouri to send a letter to every college and university in the state, public and private, telling that the SFFA decision extended to scholarships targeted at students of color, despite the fact that the opinion never discussed financial aid. In order to prevent misinterpretation and malicious interpretation of the decision by institutions and states, clear guidance on whether the decision applies to financial aid will be important.
  3. Support for school counselors, coaches, mentors, students, and families:  Today’s Q&A document was addressed to institutions of higher education, but this decision does not just affect them. Students of color are the most directly affected by the decision and they will need assistance understanding what it means for them. So too will school counselors, practitioners at community based organizations, and families on how the decision affects the guidance they give to students. School counselors and representatives from K12 education have been conspicuously absent from the department’s preparation for and response to the SFFA ruling.
  4. A clearer declaration of whether colleges and universities need to redact any information from the materials that readers see in the admissions process: In some states that have long-standing state bans on race-conscious admissions, admissions offices redact the student’s answer to the application question asking them to identify their racial and ethnic identity, as well as the applicant’s name. The Q&A makes it clear that essays need not be redacted, but it does not speak to other aspects of the application. It would be beneficial if DOJ and ED more emphatically told admissions offices they need not redact anything and told institutions and state policymakers that they should not provide instruction otherwise.

We are grateful to ED, DOJ, and the Biden Administration for this important work, and we look forward to continuing to work together to make the future of college admissions fairer.

Contact: James Murphy, Deputy Director of Higher Ed Policy, Education Reform Now.