By now, the Supreme Court's June 2023 Students for Fair Admissions decision overturning affirmative action precedent, which Venable wrote about here, here, and here has prompted institutions of higher education (IHEs) to review their admissions programs and recalibrate their decision-making processes for student applicants. Most IHEs are prudently revising (or have already revised) their policies and procedures to effectuate neutral admissions decisions in response to the Supreme Court's rebuke of race-conscious college admissions programs. But what happens if an IHE's administration receives a complaint that its admissions office might still be making some decisions based on an applicant's race? Or, what if there is merely the perception that the admissions office could still be considering race—for example, by maintaining the admissions office's access to demographic data in the school's system while admissions decisions are being made? Could it be enough to raise an inference of race-conscious decision-making if an admissions officer observes applicants' perceived race during pre-admission interviews?
Some legal professionals believe that IHEs' legal exposure after Students for Fair Admissions, even while still collecting race demographic data, will be minimal. Others have pondered whether IHEs that accept federal funding could face astronomical damages for potential federal False Claim Act violations. In the IHE space, False Claims Act allegations typically arise in...
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