The Biden Administration has taken several steps to respond to the Supreme Court’s June ruling in 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 (collectively “SFFA”) of which institutions of higher education should be aware.
Most recently, on September 28, 2023, the U.S. Department of Education released a report, titled “Strategies for Increasing Diversity and Opportunity in Higher Education” (the “Report”), which calls on states and higher education leaders to continue to prioritize diversity on college campuses following the Supreme Court’s decision in SFFA. To that end, the Report sets forth strategies for advancing diversity on college campus via outreach, admissions, financial aid, and college completion.
To ameliorate the potential for SFFA to exacerbate existing inequities in college enrollment for students of color, the Report urges institutions of higher education to invest in targeted recruitment, outreach, and pathway programs (i.e. programs that include direct contact from a higher education institution to K–12 students). The Report cites research that shows early engagement with potential applicants can increase the likelihood of future enrollment. To that end, the Report suggests institutions undertake the following actions to reach a diverse pool of applicants:
- Establish, expand, and prioritize targeted outreach and K–12 pathways programs in communities with high proportions of low-income students and students of color;
- Partner with K–12 school educators, including school counselors, college access groups, and community-based organizations, to disseminate clear information about higher education options to students and their families; and
- Admit more transfer students through partnerships with community colleges and other institutions that are more likely to enroll underserved students.
The Report further urges higher education institutions to meaningfully consider in the admissions process the adversity that students have faced—whether that is a students’ financial means, where a student grew up, or personal experiences of hardship and discrimination (including racial discrimination)—and also urges institutions to end practices that hinder socioeconomic and racial diversity. Specifically, the Report urges institutions to consider the following actions to increase diversity through the admissions process:
- Using effective holistic review to meaningfully consider an applicant’s lived experience;
- Ending practices such as legacy admissions that can negatively impact diversity, are unrelated to a prospective applicant’s individual merit or potential, further benefit privileged students, and reduce opportunities for students who have been foreclosed from such advantages; and
- Exploring alternative admissions practices that can simplify the admission process for students, such as direct admissions programs.
With regard to financial aid, the Report urges higher education institutions to increase affordability—both via need-based aid and by simplifying student aid application processes—as the cost of college is now one of the biggest obstacles to individuals interested in pursuing higher education. The Report notes that rising costs of education affect students differently—for example, Black undergraduates are nearly 40 percent more likely to borrow, and graduate with 80 percent more debt, than white students. The Report thus calls on institutions and states to consider how they can increase affordability for underserved students, including by:
- Investing in more need-based aid for students;
- Implementing college promise programs;
- Ensuring institutions have the resources needed to keep tuition low, provide sufficient financial aid, and give students the support that they need to complete their credentials; and
- Ensuring transparency and predictability throughout the financial aid life cycle, from recruitment to graduation.
The Report concludes with a call for higher education institutions to cultivate a welcoming and supportive environment that furthers retention and completion rates. Specifically, the Report recommends:
- Developing comprehensive support programs to increase retention and completion rates, particularly for students with the greatest needs;
- Providing support to students to ensure basic needs are met, including offering emergency aid for unexpected expenses; and
- Ensuring campuses provide a welcoming and supportive environment for students from all backgrounds through affinity groups; diversity, equity, and inclusion (“DEI”) programming; and shared, accessible spaces.
These strategies are not without effort and expense. And many higher education institutions may lack the requisite resources to pursue these strategies. But in SFFA’s wake, these still legal strategies are one’s schools may take to achieve a diverse student body and an inclusive and accessible campus.
The strategy report—although without the force or effect of law—is the latest resource the Biden Administration has issued in the wake of SFFA. Following the Court’s decision, President Biden called on colleges, universities, and other stakeholders to expand access to educational opportunity for all students, including by recognizing and valuing students who have overcome adversity. Additionally, the Department of Education and the U.S. Department of Justice jointly issued a Dear Colleague Letter and a Questions and Answers resource that include lawful steps institutions of higher education can take to achieve a diverse student body. Institutions of higher education, in considering changes to policies and practices, would do well to consider these resources.
The September 28 strategy report is available on the Department’s website at: https://sites.ed.gov/ous/2023/09/diversityand-opportunity-in-he/
For further information, please contact:
Laurel Pyke Malson, Partner, Crowell & Moring
lmalson@crowell.com
