Top Public Policy Issues Facing Governing Boards in 2023–2024:
Judicial Rulings

On Thursday, June 29, 2023, the Supreme Court ruled that the use of race in admissions decisions at the University of North Carolina (UNC) and Harvard College was unconstitutional, violating the Equal Protection Clause of the Constitution’s Fourteenth Amendment. In the 6–3 ruling, the Court overturned more than four decades of legal precedent in how race can be used in higher education admissions practices.

Writing for the majority, Chief Justice John G. Roberts Jr. argued, “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today.” Further, the opinion stated that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” However, Roberts also specifically said that nothing in the opinion should prohibit higher education institutions from “considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

Although most colleges do not use race-based admissions policies, the high court’s decision will have far wider ripple effects, impacting any college or university that relies on federal student aid. How much freedom will colleges retain to select and shape their student bodies without government interference? Will such a decision undermine special programs and support to help minority students advance toward degrees? Already, some states and institutions are eliminating the consideration of race in awarding student scholarships. Will the decision affect faculty and staff hiring next? In August 2023, the Department of Education published a “Questions and Answers” document outlining the results of the Supreme Court’s decision and provided a series of other approaches for institutions to, in the Department’s words, “take steps to achieve a student body that is diverse across a range of factors, including race and ethnicity.”

One of the most potentially consequential decisions that the Supreme Court made in 2024 was to end “Chevron deference,” a precedent that directed courts to defer to executive departments and agencies on interpreting details and ambiguities in statutes. In the case of Loper Bright Enterprises v. Raimondo, the six-justice majority held that courts may not defer to an agency’s interpretation of the law simply because the law is ambiguous.

Although there are no immediate consequences stemming from the Court’s decision, the most important element of this change is the level of uncertainty it introduces for colleges and universities navigating the regulatory environment. Many regulations that the executive branch introduced are now up for reinterpretation, and there is a greater likelihood that different institutions must abide by different rules in different locations until the statutes are resolved by appeals courts. Governing boards should stay apprised of the shifting landscape and ensure their institutions are prepared to respond as the need arises.

When earlier sessions of Congress produced no agreement on immigration reform, including a bipartisan Development, Relief, and Education for Alien Minors (DREAM) Act, the Obama administration in 2012 unilaterally instituted the Deferred Action for Childhood Arrivals (DACA) program that gave hundreds of thousands the right to attend college and work afterwards, without fear of deportation, while their permanent status was worked out on Capitol Hill.

Capitol Hill continues to debate and negotiate. It’s highly unlikely that the current divided Congress will agree on an immigration reform deal that could provide a pathway to citizenship for DACA students. As a result, the fate of the DACA program is in the courts’ hands, and while still being considered at the appellate level, it’s expected that the Supreme Court will ultimately decide DACA’s future.

By allowing them to seek postsecondary education, work, and maintain U.S. residency, DACA applied to a discreet group of students: children who came to the United States before age 16 and lived here for at least five years before June 15, 2012, when President Barack Obama signed his executive order. The number of active DACA participants was roughly 600,000, according to U.S. Citizenship and Immigration Services figures, but advocates for immigrants say as many as three million current or past Dreamers might benefit if lawmakers found a way to untie the immigration Gordian knot.

Disputes are being waged in state courts, too, on laws that restrict what may be taught in college classrooms about race, the legacy of slavery, and other hot-button issues, A good many focus on the ramifications of the Dobbs decision that reversed a constitutional right to abortion and resumes the pre-1974 standard whereby states set their own restrictions. Questions that colleges, universities, and medical schools in states with strict anti-abortion laws must now face include whether campus health clinics can dispense birth control devices and prescriptions or medical students can be trained to perform abortions. Some members of Congress have reintroduced bills that would bar federal funding of any type to institutions if their student health clinics perform abortions or dispense abortion pills.

• AGB Quick Take: The Supreme Court Chevron Deference Decision: Implications for Higher Ed Boards (July 2024)
• AGB Policy Alert: Supreme Court Rules Race-Based Admissions Unconstitutional (July 2023)
• Amicus Brief in Support of Universities’ Race-Conscious Admissions Protocols (August 2022)
• Community Letter to Congress Urging Support for Legislation Protecting DACA Recipients and Other Dreamers (August 2021)

• How might the Supreme Court’s decision impact our mission or operations beyond enrollment? What alternative strategies might be available to achieve our goals while also staying in legal compliance?
• Who is responsible for ensuring our enrollment processes are legally compliant?
• Has our institution appropriated staff and approved the budget to address shifting regulatory expectations stemming from the Supreme Court’s decision to end Chevron deference?
• Does our institution enroll DACA students? What defines success for them and the institution?
• Are we concerned about how the Dobbs decision affects our students, staff, and campus health providers?

AGB believes that colleges and universities should be allowed to pursue their educational missions through holistic means (including the consideration of race in admissions decisions), and we asserted that position in a higher education community amicus brief when the Supreme Court accepted the case for review. While the precise consequences of this decision will differ for each institution, we are confident that colleges and universities will continue to prioritize student success for all students; uphold the principles of justice, diversity, equity, and inclusion; and strive to provide an inclusive and welcoming educational environment in this new era, all while being in compliance with the law as it continues to evolve.

AGB has remained an ally of DACA recipients. DACA students enrolled in higher education enrich our communities, contribute to institutional research and service missions, pay taxes, and are an important part of our country’s workforce pipeline. AGB encourages Congress to pass a permanent legislative solution to allow these individuals to remain in the United States and be placed on a path to citizenship. Additionally, since institutions benefit from the international exchange of students, scientists, and researchers, AGB supports sensible visa policies that encourage and enable foreign students and scholars to study and work in the United States.