The Education Department has opened investigations into 51 colleges and universities for “race-exclusionary practices,” most of them for “partnering” with an organization that provides support to doctoral students but limits eligibility based on race. This is a welcome sign that the Trump administration intends to enforce Students for Fair Admissions v. Harvard (2023).
Harder to police will be the admissions process, in which the Supreme Court for 45 years winked at the use of race as a “plus factor” for applicants who belonged to favored minorities. What a plus factor it turned out to be. Discovery in Fair Admissions revealed that black students in the fourth-lowest academic decile had a better chance of admission than Asian students in the top 10%. The case offered a rare peek into the role of race in college admissions, but it shouldn’t take years of litigation to learn this information. And there’s something the administration can do to see that it doesn’t: require colleges and universities to report the average standardized test scores and grade-point averages of admitted and enrolled students by race.
Both Title VI of the 1964 Civil Rights Act and the Higher Education Act of 1965 authorize the Education Department to require schools that receive federal funding to submit information ensuring that they do not discriminate on the basis of race. In Grove City College v. Bell (1984), the high court held that a school’s refusal “to execute a proper program-specific Assurance of Compliance warrants termination of federal assistance to the student financial aid program.” The Civil Rights Restoration Act of 1987 expanded Title VI’s nondiscrimination requirement to all of a school’s operations, not only specific programs or activities that receive federal funding.
Schools already report detailed information to the federal government annually through the Education Department’s Integrated Postsecondary Education Data System, including average SAT scores for enrolled students and the racial composition of their student bodies. This reporting is undoubtedly burdensome, but the Supreme Court said in Grove City that “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” Grove City and Hillsdale colleges—which both have strong antidiscrimination policies—decided to reject federal funding rather than surrender their independence. But most schools concluded that billions of federal dollars are worth the red tape.
The Education Department doesn’t require schools to report average standardized test scores or GPA by race, but it should. That would help enforce compliance with Fair Admissions. If the department systematically collected this information, it would be easier to identify which schools are still engaging in race-based admissions. A significant racial discrepancy in standardized test scores or GPAs of admitted or enrolled students would be an obvious red flag, for further investigation.
There is good cause to believe that some schools are skirting Fair Admissions by using proxies for race, such as “diversity” essays. In September, Students for Fair Admissions sent letters to several universities stating that “based on the extensive experience of SFFA, its legal team and experts, it is not possible for these schools to obtain the racial outcomes for the class of 2028 that they have reported without using racial proxies that the Supreme Court forbids.” Anecdotally, I have heard complaints from admissions officers that Fair Admissions makes their job more difficult because now they have to try to guess the race of each applicant.
The Education Department also should publicly disclose this data, as it does for other data, on its College Navigator website. This disclosure would give students a more realistic assessment of their admissions prospects. Asian students could learn the average SAT score specifically for Asian students at a school, which may be substantially higher than the average score for all students, giving them a better idea of the academic credentials they need for admission.
The requirement of public disclosure would deter some schools from discriminating in the first place. The department could enhance the deterrent effect by requiring schools to submit annual signed statements from all admissions officers certifying that they have not used racial preferences, including proxies for race, in making admissions decisions, nor are they aware of any other admissions officer at their school who has. Admissions officers who lie could be subject to criminal prosecution for making a false statement to the federal government.
It is unsurprising that some schools are resisting Fair Admissions. But enforcing it may not require much more than a little more paperwork.