ICYMI: Biden-Harris Administration Takes Additional Steps to Advance Diversity and Opportunity in Higher Education

Yesterday, as part of the Biden-Harris Administration's commitment to advancing diversity and opportunity in higher education, the Department of Education and Department of Justice released resources to assist colleges and universities in response to the Supreme Court's decision in the use of race in higher education admissions.

Following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al. President Biden and Vice President Harris called on colleges and universities to seize the opportunity to expand access to educational opportunity for all students, and instructed the Department of Education and Department of Justice to provide resources on lawful means to do so. These resources will support colleges and universities so they can continue building pathways to upward mobility and preparing students from all backgrounds to thrive in our workforce.

Read the full stories below:

New York Times: Administration Urges Colleges to Pursue Diversity Despite Affirmative Action Ban
[Anemona Hartocollis, 8/14/23]

The Biden administration, in its first guidance on how to handle the Supreme Court's ban on affirmative action, offered colleges and universities on Monday something of a road map for how to achieve diverse classes while abiding by the court decision.

The administration said schools still had broad latitude when it comes to expanding its pool of applicants, through recruitment, and retaining underrepresented students through diversity and inclusion programs, like affinity clubs.

Education Secretary Miguel Cardona, in a news briefing, made it clear that the administration faced the task of enforcing a court ruling that it strongly disagreed with. "This is a moment of great urgency in higher education," Dr. Cardona said.

Alluding to how the enrollment of students of color had initially plunged in states that have banned affirmative action, he said, "We cannot afford that kind of backsliding on a national scale."

[…]

The administration's letter urged colleges to maintain or create pipeline programs to prepare and recruit a diverse student body.

It said the court's decision "does not require institutions to ignore race when identifying prospective students for outreach and recruitment," as long as all students, whether targeted or not, "enjoy the same opportunity to apply and compete for admission" into the recruitment programs.

Conservative activists have threatened to challenge any recruitment methods that could be seen as a proxy for consideration of race. But the Biden administration's letter endorsed recruiting students through targeted characteristics — including whether they live in a city, suburb or rural area, their family background, experiences of adversity including discrimination, and whether the students speak more than one language.

At least one critic of racial preferences found the guidance on outreach to be fair.

"I actually think it's a good idea to target racial groups that have been historically underserved by an institution and try to find ways to increase the chance of applying," said Richard Sander, a law professor at the University of California Los Angeles.

He said it was unlikely that anyone would challenge such a program, "and if they did, you'd have a pretty good chance of surviving, because it's separated from the admissions process."

[…]

The Biden administration's letter also broadly endorsed diversity, equity and inclusion efforts on campus […]

"It is important that students — particularly those who are underrepresented, feel a sense of belonging and support once on campus," the administration's guidance said. Schools could build this sense of belonging through diversity offices, campus cultural centers and affinity groups, "including those that have a race-related theme," as long as they were open to all students regardless of race, it said.

The letter may provide encouragement to critics of legacy admissions, the preferences some institutions give to the children of alumni, which critics have called affirmative action for the rich. Critics say legacy students take up slots that could have been awarded to qualified students without connections.

"Nothing in the decision prevents an institution from determining whether preferences for legacy students or children of donors, for example, run counter to efforts to promote equal opportunities for all students in the context of college admissions," the letter said.

[…]

USA Today: With affirmative action gone, Biden administration offers tips for colleges on diversity
[Alia Wong, 8/14/23]

New guidance out Monday from the Biden administration urges colleges and universities to continue prioritizing campus diversity as they consider applications, following the Supreme Court's highly anticipated decision banning affirmative action in admissions and overturning decades of precedent.

After the ruling, President Joe Biden's administration swiftly announced it would help higher education officials navigate new legal restrictions while still promoting diversity on campus. The civil rights divisions of the U.S. Education and Justice departments published its first set of legal resources on the issue this week.

"The Supreme Court's decision to end affirmative action has taken away a tool that colleges have used for decades to build diverse campus communities and create equitable opportunities for students of all backgrounds," Education Secretary Miguel Cardona said on a call with reporters. "When individual states have banned affirmative action in the past, fewer students of color applied, and fewer students of color were admitted. We cannot afford that kind of backsliding on a national scale."

[…]

Biden administration: Discussion of race, lived experiences still allowed

The Biden administration has emphasized this caveat, and its new resources largely focus on encouraging colleges to work within in. "We are explicit that admissions officers can know what they come to know in reviewing files, and that is not something that the court asked them … to unsee," said Education Department Assistant Secretary Catherine Lhamon. "We are reminding schools, given the decision, to be clear that they should not use demographic data that reflects the race of student applicants to influence their admissions decisions. But admissions officers are not, by the court's decision, prevented from learning an individual applicants race."

With that in mind, the White House resources stress that colleges can and should continue to practice holistic admissions. In such admissions, each student is evaluated on a case by case basis as an individual with multiple facets – not just on quantifiable, apples-to-apples metrics such as standardized test scores and grade point averages.

For example, a college may choose to admit a student whose guidance counselor discussed how she overcame feelings of isolation as a Latina at a predominantly white high school to join its debate team. Or, say, to admit an applicant who in her essay discussed how learning to cook her grandma's traditional Hmong dishes prompted her passion for food and helped her appreciate her heritage and develop a sense of self.

In these scenarios, colleges are able and encouraged to consider the applicants' race-related lived experiences in terms of how they demonstrate of grit or curiosity or courage, for example, rather than on the basis of their race itself.

Said Associate Attorney General Vanita Gupta: "The Supreme Court's opinion recognized what we know to be true: that race can be relevant to a person's life or lived experience, and may impact one's development motivations, academic interests, or personal or professional aspirations."

CNN: Biden administration releases 'legal resources' for colleges in response to Supreme Court's affirmative action decision
[Nikki Carvajal, 8/14/23]

The Biden administration is releasing new guidance and "legal resources" for colleges and universities that want to ensure student diversity in the admissions process after the Supreme Court gutted affirmative action in June.

"This is a moment of great urgency in higher education," Secretary of Education Miguel Cardona said during a call with reporters Monday morning.

He criticized the court's ruling for taking away "a tool that colleges have used for decades to build diverse campus communities and create equitable opportunities for students of all backgrounds," and said past state-level bans on affirmative action led to fewer students of color applying and being admitted to college.

The new guidance from the departments of Justice and Education basically boils down to: Colleges and universities are allowed to consider how race has impacted a student's life, but they are not allowed to use overall demographic data to influence their admissions decisions.

"The Supreme Court's opinion recognized what we know to be true, that race can be relevant to a person's life or lived experience and they impact one's development motivations, academic interests or personal or professional aspirations," Associate Attorney General Vanita Gupta told reporters. "That impact can still be considered in university admissions."

An official with the Department of Education explained the guidance was "explicit" that admissions officers "are not, by the court's decision, prevented from learning an individual applicant's race."

It also includes other steps institutions can take to increase diversity in a student body. For example, institutions can conduct targeted outreach and recruitment in underserved communities. They can also collect and consider demographic data – even if their admissions decisions cannot be influenced by that data – and can run programs to "support the retention and success of students of diverse backgrounds."

"Remember," Cardona said, "nothing in the court's decision denied the value of diversity and education."

Gupta said that while the decision "changes the landscape for admissions in higher education, it should not be used as an excuse to turn away from long-standing efforts to make those institutions more inclusive."

"We will continue our fight to ensure that students, in particular, and society as a whole reap the benefits of that diversity," she said.

The Department of Education also plans to issue a comprehensive report later this year on the "most effective and promising strategies for colleges to lawfully cultivate diverse applicant pools and achieve diverse student bodies," Cardona added.

"This moment demands the same courageous commitment to equal opportunity and justice we saw from leaders at the height of the Civil Rights Movement," he said.

Administration officials have been scrambling to offer resources to colleges that had their admissions processes upended by the decision. Earlier this month, the administration hosted the National Summit on Equal Opportunity in Higher Education to find ways to support colleges that want to promote diversity.

AP News: Biden administration urges colleges to pursue racial diversity without affirmative action
[Collin Binkley, 8/14/23]

New guidance from the Biden administration on Monday urges colleges to use a range of strategies to promote racial diversity on campus after the Supreme Court struck down affirmative action in admissions.

Colleges can focus their recruiting in high minority areas, for example, and take steps to retain students of color who are already on campus, including by offering affinity clubs geared toward students of a certain race. Colleges can also consider how an applicant's race has shaped personal experience, as detailed in students' application essays or letters of recommendation, according to the new guidance.

It also encourages them to consider ending policies known to stint racial diversity, including preferences for legacy students and the children of donors.

"Ensuring access to higher education for students from different backgrounds is one of the most powerful tools we have to prepare graduates to lead an increasingly diverse nation and make real our country's promise of opportunity for all," Attorney General Merrick Garland said in a statement.

The guidance, from the Justice and Education departments, arrives as colleges across the nation attempt to navigate a new era of admissions without the use of affirmative action. Schools are working to promote racial diversity without provoking legal action from affirmative action opponents.

Students for Fair Admission, the group that brought the issue to the Supreme Court through lawsuits against Harvard and the University of North Carolina, sent a letter to 150 universities in July saying they must "take immediate steps to eliminate the use of race as a factor in admissions."

In its guidance, the Biden administration offers a range of policies colleges can use "to achieve a student body that is diverse across a range of factors, including race and ethnicity."

It also offers clarity on how colleges can consider race in the context of an applicant's individual experience. The court's decision bars colleges from considering race as a factor in and of itself, but nothing prohibits colleges from considering "an applicant's discussion of how race affected the applicant's life," the court wrote.

How to approach that line without crossing it has been a challenge for colleges as they rework admissions systems before a new wave of applications begin arriving in the fall.

The guidance offers examples of how colleges can "provide opportunities to assess how applicants' individual backgrounds and attributes — including those related to their race."

"A university could consider an applicant's explanation about what it means to him to be the first Black violinist in his city's youth orchestra or an applicant's account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent," according to the guidance.

Schools can also consider a letter of recommendation describing how a student "conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team," it says.

Students should feel comfortable to share "their whole selves" in the application process, the administration said. Previously, many students had expressed confusion about whether the court's decision blocked them from discussing their race in essays and interviews.

The administration clarified that colleges don't need to ignore race as they choose where to focus their recruiting efforts. The court's decision doesn't forbid schools from targeting recruiting efforts toward schools that predominately serve students of color or low-income students, it says.

Countering a directive from Students for Fair Admissions, the new guidance says colleges can legally collect data about the race of students and applicants, as long as it doesn't influence admissions decisions.

Echoing previous comments from President Joe Biden, the guidance urges colleges to rethink policies that tend to favor white, wealthy applicants.

"Nothing in the decision prevents an institution from determining whether preferences for legacy students or children of donors, for example, run counter to efforts to promote equal opportunities for all students," the guidance said.

At the same time, the Justice and Education departments warned that they're ready to investigate if schools fail to provide equal access to students of all races, adding that the administration "will vigorously enforce civil rights protections."

The guidance arrives as colleges work to avoid the type of diversity decline that has been seen in some states that previously ended affirmative action, including in California and Michigan. Selective colleges in those states saw sharp decreases in minority student enrollment, and some have struggled for decades to recover.

Washington Post: Federal guidance shows how colleges may still address race in admissions
[Nick Anderson, 8/14/23]

Six weeks after the Supreme Court rejected race-based affirmative action in college admissions, the Biden administration spelled out scenarios Monday in which race or ethnicity could continue to play what officials view as a lawful role in the process of recruiting, admitting and enrolling students.

If an applicant writes about the experience of being "the first Black violinist in his city's youth orchestra" or overcoming prejudice at a rural high school "where she was the only student of South Asian descent," that would remain fair game for a university admissions office to consider, the Justice and Education departments said in a memorandum of do's and don'ts following the June 29 court ruling.

If a guidance counselor writes in a recommendation that an applicant "conquered her feelings of isolation as a Latina" at an overwhelmingly White school to join the debate team, that would also be permissible for a college to consider, the administration said.

The administration also told colleges and universities that they may continue to collect racial and ethnic data on their applicants and admitted students, as long as they take steps to ensure that the racial demographics of the applicant pool "do not influence admission decisions." In addition, the administration said, recruiters may continue to consider race among other factors as they identify prospective students.

Colleges and universities "may direct outreach and recruitment efforts toward schools and school districts that serve predominantly students of color and students of limited financial means," the administration wrote.

The administration's guidance comes as highly competitive colleges and universities are sorting through the practical implications of a landmark ruling that found race-conscious admissions programs at Harvard University and the University of North Carolina at Chapel Hill to be unconstitutional. The majority opinion, written by Chief Justice John G. Roberts Jr., asserted that "the student must be treated based on his or her experiences as an individual — not on the basis of race."

Affecting schools across the country, the decision upended a holistic admissions system that previous high court rulings as far back as 1978 had found to be permissible in the interest of helping schools promote diversity on campus.

[…]

The administration's guidance touched on other aspects of admissions that have received fresh scrutiny since the ruling. Colleges aiming to boost access to underrepresented communities could seek to enroll more first-generation students, the memo said, or those who have enough financial need to qualify for federal Pell grants. The memo listed other possible areas of review, such as preferences for applicants who are children of alumni or donors, as well as standardized test requirements, application fees and early-decision programs that require admitted students to enroll without the opportunity to compare financial aid offers.

Preferences given to children of alumni, often known as "legacy" applicants, have become especially controversial. Dozens of prominent universities in the Ivy League and elsewhere have said they consider legacy status as one of many factors in their decisions. The Education Department has launched an inquiry into Harvard's policy on legacy admissions following a civil rights complaint.

[…]

Critics say legacy preferences tend to help the White and wealthy, and President Biden has questioned their value. Some schools in recent weeks, including Wesleyan University, Occidental College, Virginia Tech and the University of Minnesota, have said that they will no longer consider legacy status in admission decisions. American University, in the District, is among the latest to declare publicly it has dropped the legacy factor.

The administration plans to issue a more detailed report next month on admissions and enrollment practices that help promote diversity within student bodies.

"For higher education to be an engine for equal opportunity, upward mobility, and global competitiveness, we need campus communities that reflect the beautiful diversity of our country," Education Secretary Miguel Cardona said in a statement Monday.

Politico: Biden administration unveils new college admissions guidance
[Bianca Quilantan, 8/14/23]

The Biden administration on Monday released new guidance to help colleges navigate what remains legally viable in admissions to ensure their campuses recruit and admit diverse classes.

The Supreme Court in June gutted race-conscious admissions practices that colleges have used for decades after it sided with Students for Fair Admissions in its cases against Harvard University and the University of North Carolina at Chapel Hill.

"We know what has happened at colleges, when individual states have banned affirmative action in the past," Education Secretary Miguel Cardona said on a press call. "Fewer students of color applied, and fewer students of color were admitted. We cannot afford that kind of backpedaling on a national scale."
Since the decision, institutions have scrambled to update their admissions processes ahead of the fall application season. They've had to navigate how to remove barriers for underrepresented applicants while also dealing with adversarial nudges from SFFA's legal counsel.

The guidance: In seven pages of questions and answers from the Departments of Education and Justice, along with a companion "Dear Colleague" letter, colleges are asked to identify potential barriers to higher education for underrepresented students.

The guidance also presses colleges to reexamine admissions preferences, including legacy status or donor affiliation "that are unrelated to a prospective applicant's individual merit or potential, that further benefit privileged students, and that reduce opportunities for others who have been foreclosed from such advantages."

The Biden administration said the guidance is its first step to ensure colleges know what they are legally able to do to ensure their doors are open to students of color.

"With respect to admissions practices themselves, especially for the upcoming cycle, the Departments encourage colleges and universities to review their policies to ensure they identify and reward those attributes that they most value, such as hard work, achievement, intellectual curiosity, potential and determination," the administration wrote in the "Dear Colleague" letter.

The guidance outlined that schools should bolster their student recruitment and retention programs. The administration reinforced that colleges can still consider how race has affected an applicant's life and can consider characteristics "even if the student's application ties that characteristic to their lived experience with race."

Legacy admissions: The department is in the middle of an ongoing civil rights investigation over whether Harvard's use of legacy admissions discriminates against underrepresented students.

Harvard's admissions process, like that of many elite colleges, gives preference to applicants who are athletic recruits, the children of alumni, related to donors and children of faculty and staff. A senior department official on Monday said that the department is "working in the enforcement area" on legacy preferences in admissions.

The guidance, however, outlines that the Supreme Court's decision does not prevent institutions from reevaluating their policies.

[…]

What's next: Cardona said the Education Department will unveil a report in September to highlight practices that "build inclusive, diverse student bodies, including how colleges can give serious consideration to measures of adversity when selecting among qualified applicants."

The Hill: Biden administration releases diversity guidance for universities after Supreme Court's affirmative action ban
[Lexi Lonas, 8/14/23]

The Biden administration released guidance Monday for universities on how to maintain diversity in their institutions after the Supreme Court ruled colleges can't use race as a factor in admissions.

The departments of Education and Justice sent a letter and a "questions and answers" sheet to outline what the decision said and what steps are legal for universities to take to fulfill their commitment to diversity without explicitly using race as a deciding factor.

The high court ruled in June that universities could not use race as a factor in admissions but also stated: "nothing in [its] opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise."

"Following the Supreme Court's recent decision, the President and Vice President called on colleges, universities, and other stakeholders to seize the opportunity to expand access to educational opportunity for all students and to build diverse student bodies, including by recognizing and valuing students who have overcome adversity," the letter to the universities stated.

In the question and answer sheet, the Biden administration emphasized that while schools could not consider the race of a student itself as a deciding factor, colleges can take into account how race has affected a student's life and their experiences with racial discrimination in college essays.

"For example, a university could consider an applicant's explanation about what it means to him to be the first Black violinist in his city's youth orchestra or an applicant's account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent. An institution could likewise consider a guidance counselor or other recommender's description of how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team," the letter says.

Other ways the Biden administration is urging colleges to diversify is by recruiting in areas with underserved students and ensuring need-based financial support to students who may not be able to afford their institutions.

[…]

One step some universities have taken so far is eliminating their legacy admissions — the practice of giving preference to students of alumni in admissions — which benefits rich and white students.

"For example, in seeking a diverse student applicant pool, institutions may direct outreach and recruitment efforts toward schools and school districts that serve predominantly students of color and students of limited financial means," according to the question and answer sheet.