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    Guidance for the Creation and Expansion of Law School Pre-Law Pathway Programs

    Impact of the SFFA v. Harvard Decision and Recent DOE/OCR “Dear Colleague” Letters

    DOJ/DOE Post SFFA Guidance:

    On June 29, 2023, the United States Supreme Court handed down its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College 600 U.S. 181 (2023) (“SFFA v. Harvard”) eliminating race-based affirmative action in public and private higher education. After the United States Supreme Court’s decision, questions arose regarding the impact of the ruling on pathway and pipeline programs in these institutions. In response to these concerns, the U.S. Department of Justice and the Department of Education issued guidance to institutions of higher education on the use of race as a factor in admissions. Although the Guidance does not have the force and effect of a statute or regulation, it provides insight as to how the federal government is interpreting the decision.

    In particular, the 2023 Guidance describes existing practices that can be legally employed post SFFA to achieve diverse student bodies, as in the following excerpt from the Frequently Asked Questions (FAQs):

    Can institutions of higher education continue to take other measures to achieve a student body that is diverse across various factors, including race and ethnicity? If so, how?”

    While the decision doesn’t explicitly address the steps institutions can take to achieve diverse student bodies, the following existing practices can be legally used, but are not limited to . . .targeted outreach, recruitment, and Pathway Programs. To promote and maintain a diverse student applicant pool, institutions may continue to pursue targeted outreach, recruitment, and pathway programs (referred to here as “pathway programs”). These programs allow institutions to take active steps to ensure that they connect with a broad range of prospective students—including those who might otherwise not learn about these institutions and their educational programs or envision themselves as potential candidates for admission. By ensuring that the group of applicants they ultimately consider for admission includes a robust pool of talented students from underrepresented groups, institutions better position themselves to attain the student body diversity and related educational benefits they seek.

    ABA Recommendations for Law Schools and Higher Education Institutions:

    In addition to the guidance from the DOJ and DOE, the American Bar Association formally approved the September 2023 Report and Recommendations of the New York State Bar Association Task Force on Advancing Diversity (“the Report”) by adopting House of Delegates Resolution 402 during the 2024 Midyear Meeting (2024M402). The Report included recommendations for law schools and higher education institutions, as well as private employers (corporations and law firms) as they continue to advance their DEI efforts.

    The Report contains specific guidance which is relevant to law schools and other higher education institutions implementing Pathway Programs, such as:

    • Any effort to advance diversity in law schools should focus on the mission of the university and how values and goals associated with that mission are articulated and pursued. Having and articulating important institutional goals, including diversity in legal education, remains permissible. . . .
    • Re-examine existing admissions policies and practices to address barriers to equitable educational access and consider reevaluating the criteria for assessing merit, including . . .  (4) developing methods for recruitment that can help diminish the pervasive disparities in law student enrollment and graduation among students of varying generational, racial or ethnic, and socioeconomic backgrounds. . . .
    • Consider implementing recruitment and outreach strategies that extend beyond schools from which educational institutions have traditionally recruited to also encompass less-well-represented institutions and achieve a broadly diverse applicant pool. . . .
    • Increase outreach to investment in and collaboration with prospective students and affiliated partners. . . .
    • Implement broad-based support programs (e.g., the Equal Opportunity Programs in New York) which can help address students’ ancillary and complementary admissions needs, such as test preparation, financial assistance, academic and mentorship support, and related resources. . . .
    • Consider explicitly referencing eligible student groups that may otherwise be underrepresented in all marketing materials, programming and related eligibility descriptions to signal to prospective diverse candidates that their applications for admission are truly welcome. . . .
    • Use testimonials from diverse scholarship and specialized program participants to convey to potential applicants, and the broader community, the demographic scope of awardees while also inherently conveying eligibility standards. . .  .

    Recent DOE/OCR Communications

    In a “Dear Colleague” letter issued February 14, 2025, the current Department of Education, Office of Civil Rights (DOE/OCR), espousing an incorrect, far-reaching application of the SFFA opinion, issued a directive to all educational institutions, including preschool, elementary, secondary, and post-secondary educational institutions, as well as state educational agencies that receive federal financial assistance. Under the guise of “racial discrimination”, this “Dear Colleague” letter focuses on potential penalties for schools with “DEI Programs”. These charges are not consistent with Justice Roberts’ language in the SFFA decision and risk undermining the progress made in guaranteeing equitable, inclusive, and respectful educational environments for all students.

    On March 1, 2025, to provide further clarification, the DOE/OCR issued another “Dear Colleague” communication including “Frequently Asked Questions about Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act.”

    Especially note Question 13 and Excerpts from the Response:

    Aside from express racial classifications, the February 14, 2025, Dear Colleague Letter refers to policies that appear neutral on their face but are made with a racially discriminatory purpose. How will OCR investigate allegations of covert discrimination?

     … A school’s history and stated policy of using racial classifications and race-based policies to further DEI objectives, “equity,” a racially oriented vision of social justice, or similar goals will be probative in OCR’s analysis of the facts and circumstances of an individual case…

    OCR may also apply a three-step test to assess indirect evidence of intentional discrimination. First, did a school treat a student or group of students of a particular race differently from a similarly situated student or group of students of other races? Then, if so, can the school provide a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual? Finally, if the school is unable to offer a legitimate, nondiscriminatory reason, or if the offered reason is found to be a pretext or cover for discrimination, OCR may conclude that unlawful discrimination has occurred

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