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

The fate of race-conscious admissions hangs in the balance with the Supreme Court set to rule by the end of its 2022-2023 term in June on whether the University of North Carolina at Chapel Hill and Harvard University can keep weighing race as a factor in admission decisions. Oral arguments in October 2022 convinced many observers that the court will strike down the practice of giving minorities some advantage in securing places in selective colleges. Angel Pérez, chief executive officer of the National Association for College Admission Counseling, predicted to Higher Ed Dive the court’s expected decision would “bifurcate America’s higher education ecosystem,” with wealthier institutions enrolling more students who can afford to pay full tuition and less well-off ones struggling to fill their classes.ⁱ

Although most colleges are not highly selective, a high court repudiation of affirmative action at elite institutions could have far wider ripple effects, impacting any college or university that relies on federal student aid. How much freedom would colleges retain to select and shape their student bodies without government interference? Would such a decision undermine special programs and support to help minority students advance toward degrees? Will it affect faculty and staff hiring next? How soon would a ruling against affirmative action take effect? With selection of the Class of 2027 already almost complete, institutions probably would have to revamp their admission processes starting with the Class of 2028, now rising seniors in high school.

Edward Blum, the affirmative action foe who created Students for Fair Admissions and enlisted rejected Asian-American students to sue Harvard, believes America will be better off and truer to its ideals without affirmative action. “I think this is just the beginning of the restoration of really the founding principles of our civil rights movement,” he told The Washington Post. “The founding principles were that your race and your ethnicity should not be used to help you or harm you in your life’s endeavors. I think the majority of Americans will think of this as a good outcome and then be a steppingstone to other good outcomes, not just in the law but in the way we see each other.”ⁱⁱ The cases before the high court, SFFA v. Harvard and SFFA v. University of North Carolina, hark back to the original Regents of the University of California v. Bakke decision in 1978 that outlawed racial quotas but upheld affirmative action. They also follow upon the ruling in Grutter v. Bollinger in 2003 that allowed “narrowly tailed use of race in admissions decisions” at the University of Michigan Law School.

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.

That did not happen, and 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.ⁱ

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.ⁱ

• 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)

• If the Supreme Court strikes down affirmative action at colleges and universities, what could be the effects on our institution(s), and how might we respond?
• 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 institutions should be able to exercise academic freedom to select a diverse student body through holistic admissions programs that include an array of academic and nonacademic factors. A diverse student body is essential to important educational objectives of colleges and universities. Within judicial parameters, each institution should be able to use holistic admissions to comprise a student body that will advance its own particular mission.

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.