On June 29, 2023, the Supreme Court issued rulings in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC, that deemed unconstitutional “race conscious” admissions and potentially subject to future uncertainty and litigation all higher education institutions’ diversity, equity, and inclusion programming and other institutional programs, policies and decision that consider race.  

Immediate considerations for higher education institutions include:

• Reviewing current programs that consider race in any manner. Every existing program, policy, and/or institutional decision where race is a consideration must be reviewed and will likely have to be replaced by race-neutral strategies. Moving forward, the consideration of race in any fashion must be narrowly tailored, individualized, and considered solely within the context of that individual candidate’s experience of race. Group-based analysis and targeting of programming, benefits, or other institutional decisions where simply being a part of an underrepresented racial minority was sufficient to receive an institutional benefit – e.g., admission, financial aid, housing – are likely no longer legal based on the Court’s analysis in Students for Fair Admissions.
• Limiting the solicitation of racial data. Prior to Students for Fair Admissions, institutions could generally solicit racial information in the admissions process.  Moving forward in applying the Supreme Court majority’s analysis in Students for Fair Admissions, courts will be suspicious of solicitations of racial information in the admissions process unless the information is clearly separated from the decision-making process. Institutions can include essay questions and consider essay responses that discuss how an applicant’s race has affected their life personally – so long as such information is not formally tracked in the admissions decision-making process and used as a basis for consideration of an applicant’s candidacy.  For example, the Court noted that a university’s tracking of Asian-American applicants, the assessment of “personality scores”, and admissions processes separating applicants by racial classification in the admissions process all gave rise to discrimination or had the potential do so. Such solicitation of racial information is therefore likely prohibited as a result of Students for Fair Admissions, and any solicitation, collection, and consideration of race in any institutional decision should be reviewed.
• Thinking beyond admissions. While the underlying activity in question for the Students for Fair Admissions cases was undergraduate admissions, other programs, policies, and institutional decisions that have a race component or connection may be implicated, including without limitation: initiatives to recruit and retain diverse students, faculty and staff; race-conscious scholarships; affinity programs, organizations, and housing; and more. Students for Fair Admissions recently sent inquiries to over 150 colleges and universities seeking information on institutional admissions and diversity, equity, and inclusion policies, and the Missouri Attorney General sent a letter to public institutions across Missouri demanding that “[a]ll Missouri programs that make admitting decisions by disfavoring individuals based on race—not just college admissions, but also scholarships, employment, law reviews, etc.—must immediately adopt race-blind standards.”  Institutions should expect similar demands and challenges – particularly from state policymakers and organizations seeking to compel compliance with the Students for Fair Admissions ruling.  Institutions should prepare for this kind of activity to increase and for scrutiny of all diversity, equity, and inclusion programming to intensify significantly in the coming months.
• Complying immediately. There is no transition period for good faith efforts to comply with the Supreme Court’s decision. Compliance is expected immediately and will apply to this fall’s admissions cycle. Given the heightened political and legal sensitivity around this issue, institutions and institutional leadership should also be mindful of public statements regarding the use and/or consideration of race in any form in connection with your institution.

The Department of Justice and the Department of Education will be issuing guidance for institutions in early-to-mid September that will be foundational to future compliance efforts. Post-Students for Fair Admissions best practices are also beginning to emerge that higher education stakeholders would be well served to seek to adapt to their institution’s needs and unique circumstances, and they present the kind of race-neutral alternatives that likely comply with the Court’s ruling in Students for Fair Admission. 

The joint capabilities of Ice Miller's Higher Education, Government Affairs and Regulatory Law, Racial Equity Solutions, and Risk and Crisis Management Teams can offer support to higher education institutions and organizations seeking to navigate the post-Students for Fair Admissions landscape in several ways, including: 

• advising on alternative actions that an institution can undertake in order to ensure student, faculty, and staff diversity under relevant state and federal law;
• helping institutions develop proactive compliance policies around admissions, recruitment, and employment to ensure that they are complying with relevant state and federal law;
• monitoring federal developments from the Departments of Education and Justice regarding future guidance for institutions seeking to comply with the ruling and advising institutions accordingly; and
• advising on any other matters related to state or federal policy developments that impact institutions’ ability to curate and maintain diverse student bodies, faculty, and staff.

For additional questions, please call or email Jarrod Loadholt, Meagan Bolton, Tara Sciscoe, Tami Earnhart or Kayla Ernst. We would be happy to assist your institution or organization in light of the Students for Fair Admissions decision.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.