Will Trachman on Race-Based Decisions in Schools

In June 2023, the U.S. Supreme Court announced its decisions in SFFA v. Harvard and SFFA v. UNC. The 6-3 opinion rejected racial preferences in the context of college admissions, spoke broadly against the use of race by government actors and schools bound by federal civil rights law, and was a significant win for the principle of colorblindness.

Nevertheless, on August 14, 2023, the Department of Education (ED) and the Department of Justice (DOJ) released a joint “Dear Colleague” letter (Joint Letter) and a questions and answers document (Q&A). The August 14 Guidance documents purport to explain how, even after the Supreme Court’s decision, colleges and universities may continue to consider race—and even engage in some race-based decision-making—to seek their vision of racial diversity.