Post authored by Lance Neyland
On July 3, 2018, the U.S. Department of Justice and the U.S. Department of Education jointly withdrew Obama-era guidance documents that advised colleges and universities how to legally promote racial diversity in their admission practices. The withdrawn documents, issued between 2011 and 2016, intended to clarify a college’s obligations under the Supreme Court’s line of cases holding that colleges can consider race in admissions to achieve the compelling interest of having a diverse student body, as long as the race-based admissions policy is narrowly tailored to achieve that goal. See Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 549 U.S. 306 (2003); Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013). See also Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (“Fisher II”).
The withdrawn letters advised colleges that achieving a diverse student body is an important goal, but that colleges should use race-neutral alternatives to achieve diversity, unless those alternatives are unworkable. The letters also instructed colleges that, if race is considered in admissions, it must be considered as part of an “individualized, holistic review of all applicants.” Importantly, the letters recognized the difficulty colleges have in determining what an “individualized, holistic review” means, as well as knowing when they had adequately considered race-neutral alternatives. To address these very real concerns, the guidance included a number of hypothetical college practices, and explained whether the hypothetical practices were permissible. The hypotheticals were intended to provide colleges with tangible guidance for implementing their own practices, rather than forcing them to wrestle with the confusing language on their own. In withdrawing this guidance, the Trump administration, without commenting on the validity of the hypotheticals, wholly rejected this type of guidance by stating that the guidance advocated specific policy positions and drew conclusions based on hypotheticals that prematurely decide whether specific actions violate federal law.
So, what does this all mean for colleges looking to use race in admissions? We don’t know, but we may soon find out.
In Students for Fair Admissions v. Harvard, a case that will likely be the first real test to race admissions law following the withdrawn guidance, a students’ rights group called Students for Fair Admissions (SFFA) filed suit against Harvard University, claiming that Harvard’s admissions practice amounts to using racial quotas to admit students and creates negative effects on Asian-American applicants.
Harvard, while not conceding that racial quotas are in place, asserts that its admission policy involves a “holistic” review of all factors in each student’s application, that Harvard has an interest in creating a diverse student body, and that it has adequately considered race-neutral alternatives and policies. The plaintiffs contend that Harvard has not considered race-neutral alternatives to achieve this goal.
The likely crucial issue in the SFFA case – an issue that the withdrawn guidance intended to answer – is how colleges can appropriately apply Fisher II and its predecessors in implementing race-neutral admissions policies.
Without guidance in place, the courts have to struggle with Fisher II, a 4-3 decision that only included 7 justices. Fisher II, written by the now-retired Justice Anthony Kennedy, was intentionally written as a narrow ruling and did not include Justice Kagan or Justice Gorsuch (Justice Kagan recused herself from the case and Justice Gorsuch was not yet on the Court). Further, in the 2 years since Fisher II was decided, it has had little precedent analyzing it. Certainly, these factors could make all the difference in interpreting, differentiating, or even overturning Fisher II.
Interestingly, overturning Fisher II just may be the result the Trump Administration wants. In a recent court filing, the Justice Department sided with the SFFA, signaling a reversal of its former Obama-era positions on using race in admissions. Conversely, following the Justice Department filing, 16 universities filed a joint amicus brief supporting Harvard and urging that any decision prohibiting the use of race in admissions would be an “extraordinary intrusion” by the government into university admission policies. At the very least, this type of decision would force universities, many of which just recently updated admission practices following Fisher II, to once again change how students are admitted.
As the case moves forward and Harvard seeks to demonstrate that its use of racial preferences is narrowly tailored to achieving the benefits of a diverse student body, all sides of this issue see the potentially monumental impact this case could have. With a very different Supreme Court, with little precedent to turn to, and with an issue that has not before specifically been litigated, all sides are looking for guidance on how to move forward. But, as of July 3rd, guidance is exactly what neither side has.
July 3rd, 2018 Dear Colleague letter – https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-vi-201807.pdf
Guidance On The Voluntary Use Of Race To Achieve Diversity In Postsecondary Education *ARCHIVED*, 2011 – https://www2.ed.gov/about/offices/list/ocr/docs/guidance-pse-201111.pdf
Court Documents and Case Profile for SFFA v. Harvard https://www.clearinghouse.net/detail.php?id=14188
About the Author:
Lance Neyland is an attorney that lives in Chicago, Illinois. He can be contacted at LanceNeyland@gmail.com.