Risk Management Steps in Response to the Supreme Court’s Admissions Ruling
In June 2023, the U.S. Supreme Court ruled on two cases the group Students for Fair Admissions (SFFA) brought against Harvard University and the University of North Carolina-Chapel Hill challenging the consideration of race and ethnicity when reviewing undergraduate admissions applications.
The Supreme Court held that these admissions programs, by considering race as a factor for admission, lacked sufficiently focused and measurable objectives warranting the use of race, employed race in a negative manner, involved racial stereotyping, and lacked meaningful end points. As a result, the Supreme Court held the admissions programs could not be reconciled with the guarantees of the Equal Protection Clause of the 14th Amendment.
Before this decision, four decades of case rulings affirmed that the educational benefits of a diverse student body constituted a compelling governmental interest justifying the consideration of race as one factor in a holistic admissions process, as long as it was not the determining factor and minority applicants were not insulated from competition.
The SFFA cases addressed undergraduate admissions, but it is clear from the Supreme Court decision that the ruling applies to all higher education admissions at institutions that receive federal funding, including graduate and professional schools (with a potential exception for military academies). It remains to be seen whether this decision’s analysis will be applied to the consideration of race in financial aid programs and scholarships, recruitment and outreach programs, employment matters, and student and academic programs and activities. These issues may be litigated in other cases in the future.
Risk Management Steps
Your college or university may take advocacy, legal, and other actions in response to the decision, and should consider the following risk management recommendations as you work to comply with the ruling.
Consult Legal Counsel
This Supreme Court decision is a major change for institutions that previously considered race or ethnicity as a factor in the admission process. It is important to work with legal counsel to understand how the scope and nuance of the ruling impacts your school. The applicability to your specific institution, and any liabilities or exposures that may result, will require an analysis that considers the details of your programs, policies, and practices.
Audit Admissions Practices
Review your admissions policies, procedures, and materials to determine if any of them conflict with the new Supreme Court decision. Amend them as appropriate so they do not solicit or consider race or ethnicity. Ensure the audit is comprehensive and includes a review of:
- The admission application, including essay prompts
- Admissions office practices and handbooks
- Interviewer guidelines and evaluation documents
- Marketing materials, including website postings and student solicitations
- Recruiting brochures, videos, and presentations
- Waitlist procedures that include a consideration of race or ethnicity
Work with legal counsel to properly identify and integrate changes you make to these policies, practices, and materials. Document how your institution makes admissions decisions; this will show your institution does not collect or consider impermissible information, if challenged.
Train Staff and Volunteers
Train admissions staff and volunteers on changes to your policies and procedures and how to comply with the Supreme Court decision. Include training on allowable evaluation criteria and consider addressing these topics:
- Impermissible considerations
- Updated training materials and handbooks, along with any new or changed processes
- Documents, such as reviewer forms and interview forms, that were edited to bring them into compliance
- Recordkeeping of all trainings, attendees, and materials used
Prepare a Communications Strategy
Determine your institution’s position on any changes and speak with a unified voice about it. Create a communications strategy that brings all departments across your institution together in how they respond, both in word and action.
Include the following in your plans:
- Provide template messaging for consistency across departments and campus.
- Have legal counsel vet the communications strategy and any public statements.
- Prepare your institution’s leadership to respond to inquiries from internal and external constituents by briefing them on the Supreme Court decision, the campus action steps, and the communications plan.
- Consider how you can bring student constituencies, including student leaders and student advocacy groups, into your institution’s plans, to spread understanding and support.
Reassess Your DEI Goals and Plans
If you seek to foster diversity on campus, consider race-neutral alternatives to recruit and matriculate diverse students. For more information, refer to higher education associations and admissions experts that have opined on the feasibility and effectiveness of these alternatives. Ideas may include:
- Considering geography or socioeconomic status
- Building new relationships in communities or organizations that may draw diverse applicants
- Evaluating the use of test-optional admissions practices
- Modifying your application, for example changing essay prompts
- Waiving fees and improving financial aid availability
- Examining admissions practices that give advantages to specific groups, such as legacies, donors, or athletes
Again, it is important to consult with legal counsel as you evaluate these options and make decisions affecting your admissions outreach and process. As your institution moves to comply with the Supreme Court decision, document all changes and race-neutral program efforts. This will allow for long-term tracking, provide assurance that changes are applied consistently, and serve as evidence if there are future challenges to your practices. Finally, be on the lookout for additional guidance from the Department of Education in the coming months.
More From UE
How Higher Ed Institutions Can Respond to “Operation Varsity Blues”
Other Resources
The Chronicle of Higher Education: What to Know About Race-Conscious Admissions
American Council on Education: Preparing for the Supreme Court’s Race in Admission Ruling
About the Author
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Christine McHugh, Esq., ARM
Senior Risk Management Counsel
Christine’s areas of expertise include employment law, sexual assault prevention, protection of minors, traumatic brain injury, and diversity, equity, and inclusion. Before joining the Risk Research team, she handled UE liability claims for several years. She previously practiced employment and higher education law.