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June 14, 2024

Navigating the Post-SFFA Landscape: Advancing Equity-Minded, Law-Attentive Priority Actions in Graduate, Undergraduate and Professional Higher Education

By Jamie Lewis Keith, Arthur L. Coleman

In June of 2023, in SFFA v. President and Fellows of Harvard College and in SFFA v. University of North Carolina, the U.S. Supreme Court radically altered the federal non-discrimination law landscape affecting the consideration of an applicant’s race in higher education admissions, including graduate, undergraduate, and professional school admissions. The Court now prohibits the consideration of an applicant’s racial status to achieve the education benefits of diversity for all students under the strict legal standard that applies to that status. However, it expressly permits considering what an applicant gains from their experience of race. While the traditional “strict scrutiny” standard hasn’t changed, the educational diversity benefits—as long defined—are no longer legally compelling enough to justify considering racial status of students in admissions under that standard.

Recognizing that the relevant legal landscape has been materially changed, and that many of the practical questions for higher education leaders and policymakers remain unresolved, this guidance has been developed in collaboration with legal and policy experts as a resource for higher education leaders, policymakers, and their legal counsel. It is a tool that elevates issues and considerations for individuals engaged in policy development and implementation and focuses on: (1) helping to expand perspectives on viable diversity, equity, and inclusion [DEI]-advancing avenues, consistent with relevant federal non-discrimination law, and (2) evaluating legal risks of various DEI policies and programs in light of their mission-focused aims and impacts. This resource is not intended to substitute for institution-specific legal advice, which is inherently context-, institution-, and program-specific.

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