The Time for a Civil-Rights Audit Is Now

The best time for a university to perform a civil-rights audit was two full years ago, right after the Supreme Court announced its decisions in the Students for Fair Admissions cases. The next best time is now.

In short, the Supreme Court wrote in 2023, “Eliminating racial discrimination means eliminating all of it.” That means ending discrimination not only in admissions but across the entire university. Furthermore, Title VI of the 1964 Civil Rights Act has long been interpreted to ban racial discrimination across all of a university’s programs and activities. Even the Biden administration’s Office for Civil Rights (OCR) in the U.S. Department of Education regularly found, for example, that so much as alerting students to an external discriminatory scholarship was a Title VI violation.

Equally ominous for colleges is the prospect that the Internal Revenue Service will fully and vigorously enforce its nondiscrimination rule. About equally ominous for colleges that ignore this legal obligation is the prospect that the Internal Revenue Service will fully and vigorously enforce its rule that “a school that does not have a racially nondiscriminatory policy as to students does not qualify as an organization exempt from Federal income tax.” A school, including an institution of higher education, must not merely have such a policy but also “must show affirmatively … that since the adoption of that policy it has operated in a bona fide manner in accordance therewith.”

This means a university wanting to keep its tax-exempt status, besides keeping its access to federal funds, must operate sincerely in accordance with a requirement that it

admits the students of any race to all the rights, privileges, programs, and activities generally accorded or made available to students at that school and that the school does not discriminate on the basis of race in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs.

The stakes are too high for a university to wait and see if its investigatory number comes up. For virtually all institutions, losing tax-exempt status or federal funding (which includes federal student-loan access) is an enterprise risk. Thus, every public and private institution should proactively undergo an institution-wide civil-rights audit led by the institution’s legal counsel.

The audit should go beyond race and Title VI compliance. It should include Title IX of the Education Amendments of 1972 on sex—at a minimum, the easier aspects having to do with facially discriminatory scholarships and programs such as “Girls Who Code” on-campus programs and camps for grade-school students and discriminatory partnerships and scholarships for graduate students.

The audit also should clean up any civil-rights issues related to Title VII (discrimination in employment) regarding faculty and staff. These potential issues include mandatory diversity statements at any stage of a person’s employment, “cluster hires” (often where standard hiring processes are altered in order to get specific demographic results), and any other workaround that intends to prioritize applicants by identity group.

Then, the institution may as well add a free-speech audit. That’s an obvious duty for public institutions. Private ones also must conform with their own promises of free speech, risking liability if they don’t. Throw in freedom of association and religious liberty and, finally, at least take a look at due-process protections for students. (To this end, check out the Model Code of Conduct released in 2020 by the Foundation for Individual Rights and Expression, known as FIRE, where I used to work.)

Through a rights audit, an institution can minimize its legal, reputational, and financial exposure. Call the whole thing a rights audit, covering both civil rights and constitutional rights. Through a rights audit, an institution can minimize its legal, reputational, and financial exposure. Ensuring rights is also the right thing to do. Many colleges and universities are likely to find that they have legacy webpages that do not comply with their policies of nondiscrimination or free speech and their legal obligations.

Ensuring rights is also the right thing to do. A very common misstep is to list discriminatory external scholarships. Administrators mean well and would like their students to know about all available funding opportunities. They are usually unaware that they are violating Title VI or Title IX when they list a scholarship that is limited to women (or men) or is limited by race, ethnicity, or national origin.

A few examples from UNC-Chapel Hill:

• UNC’s business school publicly listed, until recently, “external scholarships for women” that are indeed limited to women and listed the Hispanic Scholarship Fund, which restricts eligibility to applicants “of Hispanic heritage.” The Kenan-Flagler Business School is also a member school of the Consortium for Graduate Study in Management, which uses “winks and nods” (see below) to give racial preferences to MBA students.
• UNC’s Graduate Funding Information Center and Office of Research Development jointly created a Funding Information Portal that, on at least one page, previously listed discriminatory scholarships.
• UNC’s Johnston Center in the College of Arts and Sciences also maintained, until recently, a public webpage listing discriminatory scholarships.

Good news for the UNC System is that the Board of Governors is taking its nondiscrimination duties seriously. The Students for Fair Admissions decision against UNC came out on June 29, 2023. By August, the UNC System Division of Legal Affairs had issued a memo making clear that “the Court rejected the use of race for race’s sake in all contexts.” Indeed, “no institution may try to achieve indirectly what the Court prohibited directly,” particularly in admissions. “There can be no winks or nods.”

The memo concluded with a call for something much like a civil-rights audit:

Because the rationale of the [Court’s] decision could affect the award of scholarships and financial aid, campuses should begin to evaluate and assess any scholarship or aid programs that consider race in the award of the benefit. […] Programs that offer opportunities for students based on race to the exclusion of others, who are not of the same race, may also be implicated by the Court’s ruling. So, too, campuses should start evaluating whether they believe certain scholarships, aid, and campus programs are still permissible.

Then, on May 23, 2024, the UNC Board of Governors (BOG) updated the UNC Policy Manual to require annual certification by each UNC institution that it fully complies with its nondiscrimination obligations. (This policy is now called the Equality Policy.)

Most recently, on June 17, 2025, BOG Chair Wendy Murphy and BOG Committee on University Governance Chair Alex Mitchell took the next big step. They wrote all of the UNC board of trustee chairs regarding compliance with the 2024 policy and how to handle the annual certification. Since a number of universities nationwide have renamed their diversity offices and given staff new titles without substantially giving up their DEI (“diversity, equity, and inclusion”) mission or activities, the BOG leadership advised the trustee chairs to take a closer look:

You should work with your chancellor and your campus general counsel [regarding] relevant campus personnel [including] directors of any offices realigned pursuant to the Equality Policy; any campus personnel whose responsibilities were realigned pursuant to the Equality Policy; and any professionals with vague or unclear titles within student affairs operations. These confidential reviews should compare an individual’s prior position to his or her new responsibilities, including how the employee’s performance in that role has changed, and what safeguards exist to ensure an employee’s previous responsibilities do not continue in the present role.

This is a terrific model for other state systems, not only for federal compliance but also for compliance with state laws that ban DEI from state universities or from state government altogether.

North Carolina’s is a terrific model for other state systems, not only for federal compliance but also for compliance with state laws. To summarize: A civil-rights audit should examine undergraduate and graduate admissions, financial aid, internal scholarships, listings of external scholarships and programs, curricular and noncurricular student programs, clubs, sponsorship of third-party programs and camps, athletics (now that it’s clear men aren’t allowed in women’s sports and private spaces), hiring, faculty promotion and tenure, strategic plans, and any legacy webpages that express unlawful policies, practices, or goals.

Add an audit for free speech, free association, religious freedom, and due process with the help of FIRE, and your college or university can be known as a true protector of civil and constitutional rights.

Adam Kissel is a senior fellow at the Cardinal Institute for West Virginia Policy.