Navigating the Impact of the Supreme Court’s Affirmative Action Decision on Higher Education

This fall, high school students begin an annual ritual of going on college tours and starting to work on their college applications, while current college students consider their options to transfer. But next year’s prospects could be very different than what they always imagined for themselves.

Nearly two months after the Supreme Court’s June 29 decision to gut affirmative action, civil rights advocates are still reeling from its effects and responding to mitigate its impact on underrepresented communities. The SCOTUS decision came as a punch in the stomach to civil rights organizations who have spent decades ensuring that policy created a more equitable pathway to college and, with it, greater professional and societal success. Immediately following the ruling, UnidosUS joined like-minded groups such as The National Urban League, NAACP, Leadership Conference on Civil and Human Rights, National Council of Negro Women, and Asian Americans Advancing Justice in a webinar to denounce the decision and to remind viewers that there are still plenty of avenues to encourage diversity, equity, and inclusion in higher education.

“Higher education is the gateway to economic achievement and the training ground for our nation’s future leaders. We are short-changing not only our communities but our country by failing to ensure access to higher education for all, and thus preventing too many from fully contributing to our country’s well-being,” UnidosUS President and CEO Janet Murguía said during the video conference. “We call on leaders in higher education and our elected officials to take the necessary steps to ensure that we are investing in our people, all of them, by providing a path to higher education.”

She added that the court ruling was “a narrow decision on just one aspect of the college admission process,” and noted, “it would be wrong and unsupportable to take this decision as a referendum on the need for diversity, equity, and inclusion overall.”

Heeding calls like these, UnidosUS published a brief detailing key strategies to keep the American Dream alive for the nation’s increasingly diverse population.

The publication, titled “Supreme Court Ruling Must Lead to Action to Advance Opportunity in Postsecondary Education: Equity in Access to Higher Education Is—and Should Remain—a Core Value,” was released during the 2023 UnidosUS Annual Conference in Chicago, where U.S. Vice President Kamala Harris was the keynote speaker. Harris touched on the gutting of Affirmative Action as one of many recent legal and policy actions eroding years of civil rights advances. Among others, she mentioned the overturning of Roe v. Wade, a rollback of non-discrimination protections for businesses, a weakening of voting rights, an uptick in legislation aimed at creating a climate of fear among immigrants, the banning of books, and a campaign to rewrite history with the idea that enslaved people actually benefited from slavery.

“Well we will not have it. We will not have it,” she said, adding that conference goers should take inspiration to fight back from UnidosUS’s long history of organizing and coalition building.

The brief begins with a reminder that while Latinos make up 20% of the U.S. population and 20% of those enrolled in postsecondary education, they are still largely underrepresented in selective colleges and universities which so often serve as the gateway to upward mobility and high-powered leadership roles. Latinos make up 24% of high school graduates, but only represent 14% of admissions to those institutions.

The brief adds that while the decision was limited to the factor of race in college admissions, it “should not disturb institutional commitments to diversity, equity, and inclusion among the student body or in hiring and retention in educational or other employment settings, and it should not be treated as an impediment to creating welcoming spaces for Latinos and other people of color.”

At the same time, it said SCOTUS’s decision should be a “wake-up call,” and that measurable progress on equity in education “must be a central focus of how we all think about our shared prospects for realizing the American dream.”

The brief also echoed the words of Justice Kagan, who warned during oral arguments that gutting affirmative action could lead to a “precipitous decline in minority admissions” and noted that Latino student enrollments in selective schools like UC Berkeley and UCLA plummeted 50% when California barred race-conscious admissions through Proposition 209 in 1996.

“Although there has been improvement after decades of recruitment and changes to admissions practices, there still is work to do: in 2019, more than half of California’s public high school graduates identified as Hispanic, but Latinos were just 25% of the first-year student body at all University of California schools, and 15% of first-year students at the Universities of California at Los Angeles and Berkeley,” it stated.

The rest of the brief focuses on actions that can be taken to forge ahead with the pursuit of educational equity, and it starts with a breakout box about first-generation students, a demographic in which 70% of Latino students find themselves.

Under the Supreme Court decision, it notes, “colleges and universities may use alternative considerations.” That, the brief says, can translate to recognizing a student’s socio-economic circumstances, acknowledging the often-limited realities of their K-12 educational experiences, and their life stories and testimonies of grit and determination. At the same time, the federal government can improve and clarify the financial aid process, while institutions of higher education can cut back on legacy admissions and heavy reliance on testing and course requirements for admissions, expand the communities and regions in which they recruit students, and consider options for making applicants of diverse backgrounds feel welcome on their campuses. 

Specific Recommendations

The brief outlines which actions the Biden administration and the U.S. Department of Education, Congress, governors and state lawmakers, colleges and universities, and students themselves can each take toward those goals.

For example, the Biden administration can call for racial equity and diversity as a national imperative and direct government agencies to issue non-discrimination guidance, while asking U.S. Secretary of Education Miguel Cardona to provide greater clarity on the Supreme Court’s Affirmative Action ruling.

The U.S. Department of Education can provide more funding and guidance for helping underserved student groups have the college readiness resources and coursework they need and prepare more educators to teach advanced placement courses to students who have so often been overlooked and underserved for such classes. It can also work with the National Center for Education Statistics to increase data transparency by reporting disaggregated data by race and ethnicity for the purpose of admissions, enrollment, and identifying barriers in the college application process.

The brief says Congress can take action by enacting legislation to ban early admissions that require a commitment before offering financial aid packages, develop a federal/state partnership to fully cover tuition costs for Pell-eligible and other lower-income students, increase funding for Minority Serving Institutions (MSIs), increase funding, and expand on federal programs such as GEAR UP (Gaining Early Awareness and Readiness for Undergraduate Programs) and TRIO which help first-generation and low-income students navigate the college application process.

At the governor and state legislature level, policymakers can examine whether programs that allow admission to the top performing percentiles of a state help or hinder equitable education practices, map inequities in the distribution of and placement in courses, including Advanced Placement math and science courses, increase needs-based grants and scholarships, pass legislation that imposes “public service” fees on selective schools that continue to engage in legacy enrollment practices, and then use those fees to fund the state’s more under-sourced institutions.

The brief encourages colleges and universities “not to overreact” to the Supreme Court’s decision and continue to push for greater diversity, equity, and inclusion by moving from a merit-based to a needs-based system of financial aid, as well as to end early admissions, recognize multilingualism among students as an asset, not a hindrance, and provide enhanced services in tutoring and advising, as well as stipends and grants for transportation and food security.

Finally, the brief notes that students also have a voice and a role to play in advocating for themselves and their peers by continuing to pursue selective universities that give them a better chance of professional success, and engage in advocacy to challenge institutions of higher education to “live up to their commitments to diversity and inclusion,” while demanding a process for student input where they can inform actionable recommendations for educational equity.

“We don’t  yet know what the full impact of the SCOTUS decision will be on next year’s college enrollment,” said UnidosUS Director of Education Policy Project, “ but what we do know is that UnidosUS will keep fighting for representation of Latinos in postsecondary education. We belong on college campuses. Full stop.”