On July 3, 2023, just days after the U.S. Supreme Court’s landmark decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), a new challenge is arising related to collegiate admissions. Three advocacy groups for minorities filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR), alleging that Harvard’s policy of favoring donor-related and legacy applicants unfairly advantages white applicants and, conversely, has a negative, disparate impact on applicants of color.
The complainants allege that, as a result of that policy, legacy applicants are nearly six times more likely to be admitted, compared to nonlegacy applicants, and similarly, that donor-related applicants are nearly seven times more likely to be admitted. They ask OCR to intervene based on the allegation that this preferential treatment violates implementing regulations under Title VI of the Civil Rights Act of 1964. Per OCR, those regulations prohibit policies that have a disparate impact on racial minorities, regardless of whether those policies are intentionally discriminatory.
The complainants also allege that, because the Supreme Court’s SFFA decision “removed a tool that in certain circumstances provided a small boost to applicants of color when considered as one of many factors,” OCR’s intervention is necessary to “improve, or at least preserve, diversity and equity in the admissions process going forward.” As of the date of this alert, OCR has not yet confirmed whether it will open an investigation.
The new complaint borrows heavily from the SFFA record in describing Harvard’s admissions processes. Justice Gorsuch’s concurrence in SFFA also may provide support for the complainants’ claim that eliminating admissions preferences for children of donors, alumni and faculty advances diversity. He noted: “As part of its affirmative action case, SFFA also submitted evidence that Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives to recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty.”
Notably, the complainants have not requested damages for these claims in court — and cannot do so under existing law. In Alexander v. Sandoval, the Supreme Court held that Title VI’s implementing regulations are not enforceable through a private right of action. 532 U.S. 275 (2001). Indeed, Justice Scalia, in dicta, also questioned the validity of the Title VI regulations addressing a disparate impact, which go beyond the statutory prohibition on intentional discrimination. But the Supreme Court assumed their validity because no party in Sandoval had asked it to reconsider its decision in Guardians Association v. Civil Service Commission of City of New York, in which a fragmented Supreme Court previously had upheld these regulations’ validity. 463 U.S. 582 (1983).
Given the precariousness of these decisions and the Supreme Court’s landmark ruling in SFFA, it is likely just a matter of time before federal courts are asked to revisit the regulations’ validity and determine whether a claim under Title VI requires a showing of intentionality or just disparate impact in an administrative proceeding before a federal agency.
Absent Title VI’s disparate impact regulations or an applicable state statute, those seeking to eliminate legacy admission practices likely will face an uphill battle in court. To date, courts generally have agreed that “legacy preferences can stand under the Constitution” because they are not “classifications made on the basis of race.” Grutter v. Bollinger, 539 U.S. 306, 368 (2003) (Thomas, J. concurring). Colleges and universities have successfully defended such policies as a way to strengthen important ties with alumni and donors, thereby improving an institution’s financial health and standing in the community.
Even so, the recent complaint filed with OCR will not be the last of its kind. Legacy and donor admissions preferences also face increasing scrutiny from state legislators. Colleges and universities that are reevaluating their admissions policies in the wake of SFFA therefore should consider their donor-related and legacy admissions data as part of that analysis. And, institutions that leave donor-related and legacy admissions preferences in place should be prepared to defend these aspects of their policies against potential challengers.
For help analyzing the scope and impact of the SFFA decision for your organization, and downstream consequences like the new OCR complaint, please contact the authors, your McGuireWoods contact, or a member of McGuireWoods’ education, affirmative action, or labor and employment teams.