Race and Regulatory Equity
As Harvard and universities nationwide redesign their admissions programs after Students for Fair Admissions v. President & Fellows of Harvard College1 they will need to navigate trip wires of regulation.2
From the start, President Biden has enacted numerous executive orders promoting racial equity across government, including the Civil Rights Act, Title VI [hereinafter Title VI] expansions in higher education. During his first month in office, President Biden enacted an executive order (January 2021) that seeks across-the-government measures “to advance racial equity and support for underserved communities”3 and a more general Memorandum on Modernizing Regulatory Review (2021) that contains provisions related to equity.4 In spring 2023, he issued a more specific order that civil rights agencies shall “comprehensively” and “affirmatively” use their respective civil rights authorities “to prevent and address discrimination and advance equity for all, including to increase effects of civil rights enforcement . . . consistent with applicable law” (February 2023).5
To implement these policies, President Biden has called on universities to end the practice of legacy admissions and has tasked the Department of Education with considering whether legacy preferences limit opportunities.6 In turn, the Department has opened an investigation specifically reviewing Harvard’s legacy preferences to see if they violate civil rights laws such as Title VI. These investigations are prompted by what may seem like strange bedfellows: civil rights organizations in a NAACP LDF report (November 2023) and conservative opponents of race-based affirmative action who seem to recognize the difficulty of defending legacy preferences while challenging race-based preferences.7
Setting aside for the moment the Constitutional issues and statutory intricacies of the affirmative action lawsuit,8 what is the proper role of regulatory agencies in implementing equity orders? More specifically, what is their role with regard to higher education admissions, in the post-SFFA v. Harvard landscape of racial equity?
600 U.S. 181 (2023) [hereinafter SSFA v. Harvard].
A growing list of universities have dropped the practice voluntarily, including Berkeley, MIT, Amherst, Wesleyan, and Texas A&M. Mansee Khurana, Colleges are Ending Legacy Admissions to Diversity Campuses Post-Affirmative Action, NPR (July 29, 2023) https://www.npr.org/2023/07/26/1190123330/naacps-ivory-toldson-discusses-the-investigation-into-harvard-legacy-admissions#::text¼Hourly%20News-,Colleges%20consider%20ending%20legacy%20admissions%20to%20help%20diversify%20campuses.,new%20measures%20to%20achieve%20diversity. [perma.cc/3ZAV-3ZMC].
Advancing Racial Equality and Support for Underserved Communities Through the Federal Government, 86 Fed. Reg. 7, 009 (Jan. 25, 2021).
Modernizing Regulatory Review, 88 Fed. Reg. 21,879 (Apr. 11, 2023).
“Agencies shall comprehensively use their respective civil rights authorities and offices to prevent
and address discrimination and advance equity for all, including to increase the effects of civil rights
enforcement and to increase public awareness of civil rights principles, consistent with applicable law. Agencies shall consider opportunities to:
(a) further elevate their respective civil rights offices, including by directing that their most senior civil rights officer report to the agency head;
(b) ensure that their respective civil rights offices are consulted on decisions regarding the design, development, acquisition, and use of artificial intelligence and automated systems;
(c) increase coordination, communication, and engagement with community-based organizations and civil rights organizations;
(d) increase the capacity, including staffing capacity, of their respective civil rights offices, in coordination with OMB;
(e) improve accessibility for people with disabilities and improve language access services to ensure that all communities can engage with agencies’ respective civil rights offices, including by fully implementing Executive Order 13166 of August 11, 2000 (Improving Access to Services for Persons with Limited English Proficiency); and
(f) ensure that their respective civil rights offices are consulted on decisions regarding the design, development, acquisition, and use of artificial intelligence and automated systems.”
Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, 88 Fed. Reg. 10,825 (Feb. 22, 2023). For additional executive orders relating to diversity, equity, and inclusion see https://www.commerce.gov/cr/programs-and-services/executive-orders-diversity-equity-inclusion-and-accessibility [perma.cc/9DH4-MZAG].
Secretary Cardona Delivers Keynote on Reimagining College Admissions at Summit on Equal Opportunity in Higher Education, U.S. DEP’T OF EDUC. (July 26, 2023), https://www.ed.gov/news/speeches/secretary-cardona-delivers-keynote-reimagining-college-admissions-summit-equal-opportunity-higher-education/ [perma.cc/SN4Z-7U88].
Affirmative Action in Higher Education: The Racial Justice Landscape After the SFFA Cases, AMERICAN CIVIL LIBERTIES UNION (October 2023), https://www.aclu.org/wp-content/uploads/2023/10/2023_09_29-Report.pdf [perma.cc/VAL4-ZHQY].
For example, Congress is weighing legislation to end legacy admissions, and several states are barring it: California, Colorado, New York, Connecticut, and Massachusetts among others. Michael T. Nietzel, Colleges Face Mounting Pressure to End Legacy Admissions, Forbes (Feb 29, 2024) https://www.forbes.com/sites/michaeltnietzel/2024/02/29/colleges-face-mounting-pressure-to-end-legacy-admissions/?sh¼1db6c07f6620 [perma.cc/KY6R-EEJP].