There is little debate that the student mental health crisis at colleges and universities is at an all-time high. Just last month, news headlines shared the story of a university’s response to receiving an anonymous letter describing a potential suicide that was to take place on campus before the holiday break. The university immediately published a Community Notice encouraging the student at risk to seek help and advising the campus community to be vigilant in reporting and responding to mental health issues amongst their peers. While this student mental health crisis was not caused by COVID-19, it has been intensified by the pandemic and all of the changes it has caused to ‘normal’ college life. According to a survey of college presidents conducted by the American Council on Education (ACE) in September 2021, student mental health was identified as one of their most pressing concerns. 

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According to published reports, the Trump administration appears poised to direct the Department of Justice to begin investigating, and potentially litigating against, institutions over what it characterizes as “intentional race-based discrimination in college and university admissions.” This initiative, first reported by the New York Times, is purportedly reflected in an internal DoJ communication obtained by the Times seeking Department staff attorneys to volunteer to work on the investigations and/or litigation.  At this point, it is not clear whether institutions will be targeted on a random basis or (perhaps more likely) based on complaints received by the Department.

This initiative, of course, comes in the aftermath of the Supreme Court’s rulings with respect to the University of Texas’s affirmative action admissions programs in the Fisher decisions.  Those decisions recognized the creation of a diverse student body as a compelling educational interest, but also emphasized that an institution must not make race the defining feature of a candidate’s application for admission, and must be able to demonstrate that it has seriously considered race-neutral alternatives and that no workable race-neutral alternatives would produce the educational benefits of diversity “about as well and at tolerable administrative expense.” Although this may not require institutions to implement race-neutral alternatives and demonstrate their failure, as we have previously advised, institutions should ensure that they are able to document evaluation of such alternatives in order to defend challenges to their admissions programs.  The apparent advent of the reported Department of Justice initiative may quickly render this consideration more important than ever, and the prospect of challenges more than theoretical.