What the Supreme Court Decision on Affirmative Action Means for Colleges and Universities

Council Insights: Council of Board Chairs

By Jill Derby September 22, 2023 March 19th, 2024 Blog Post, Council of Board Chairs, RNL

Opinions expressed in AGB blogs are those of the authors and not necessarily those of the institutions that employ them or of AGB.

The AGB Council of Board Chairs is a group of 25 to 30 leaders of member college and university boards of trustees from around the United States who meet quarterly to obtain information on pressing current topics and engage in an exchange of ideas with fellow board chairs.

The August 9 meeting of the council focused on the recent U.S. Supreme Court decision regarding the legal challenge to the admission policies of Harvard University and the University of North Carolina at Chapel Hill―a ruling that held that these policies violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964. This decision sent tremors through the higher education community where justice, diversity, equity, and inclusion (JDEI) initiatives have become a priority in recent decades.

AGB Senior Vice President Cristin Toutsi Grigos introduced the council session by saying that, especially with the new academic year now commencing, she couldn’t think of a more important topic for the council to address. Governing boards and institutional leaders everywhere are looking for an answer to the question: “What now?”

To provide context for the council members, Tom Hyatt, AGB’s general counsel and senior fellow, gave an overview of the court’s decision and the history leading up to it. He reported that in a case brought by Students for Fair Admissions (SFFA), the court ruled In June that Harvard College, and the University of North Carolina violated the 14th Amendment by using race in their undergraduate admission practices. Hyatt also summarized 45 years of earlier court decisions, which had previously addressed the issue. Those had left the door open for colleges and universities to not only redress former inequities but to also advance diversity in racial and other categories of student identity through their admissions policies. The most recent case, Hyatt said, did not challenge the concept that diversity is deemed essential to an effective educational environment, and it remains a universally accepted principle. He concluded by saying that nothing prevents a higher education institution from considering student identity in admissions if it is based on character, not color.

AGB previously had weighed in on the recent case, having signed an amicus brief in support of affirmative action presented by a wide representation of higher education leaders. AGB believes that colleges and universities should be allowed to pursue their educational missions through holistic means (including the consideration of race in admission decisions). In the council meeting, AGB staff noted that the precise consequences of the decision will differ for each institution, and added, “[AGB is] confident that colleges and universities will continue to prioritize student success for all students; uphold the principles of justice, diversity 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.”

Eric Groves of RNL, an AGB sponsor, then offered a few thoughts to frame the discussion that followed among the council members. He referenced data that confirm the rationale for diversity imperatives throughout the higher education community. It is widely known, he stated, that homogenous environments are not good for education, and it is as important for white students to be in diverse ones as it is for non-white students. The world that students matriculate into is a diverse marketplace, and they are better prepared to perform effectively in such environments if they have grown comfortable interacting with other people who are different from them.

Although courts have confirmed the proposition that diversity in higher education is an important component of a good education, Groves pointed out, “they have directed that we accomplish this important goal but have taken away key tools to achieving that outcome.” He concluded by warning council members not to broaden unnecessarily the interpretation of the ruling and noted that guidance on how to apply the ruling would be forthcoming from the U.S. Department of Education.

Reactions from Board Chairs

As the facilitator of the meeting, Council Ambassador Jill Derby kicked off the discussion among the member chairs by quoting Chief Justice John G. Roberts, who stated in his majority opinion of the decision, “At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration of otherwise.” That said, she observed, the ruling had raised more questions than it provided answers.

The first council member to comment shared that the topic was high up on the agenda of a board meeting scheduled for the following week, and she was uncertain how to deal with it. She wasn’t sure the decision impacted her institution and wondered when the Department of Education would issue further guidance. Many of the chairs shared this uncertainty, recognizing that their leadership role placed a burden of responsibility on them to provide answers to questions many people in their institutions will be asking.

A second chair noted that his board’s executive committee had already met to discuss the decision and his institution had been anticipating the Supreme Court decision for more than a year. He reported that his institution’s DEI committee members, legal counsel, and enrollment management staff had all supported the board in using this adverse decision to reaffirm their commitment to diversity. He noted, to the general agreement of others on the council, that giving minority students an opportunity to describe their racial experience is not a great alternative as it puts the burden on students to determine which story to tell over others in their admissions applications.

Another chair pointed out that most students do not go to such highly selective institutions as those cited in the litigation and that efforts to advance diversity are best directed toward student success and ensuring students persist in their studies and graduate “on time.” She encouraged colleagues to stay focused on the larger societal issue of the underrepresentation and relatively low graduation rates of minority students.

One council member shared that his board had met shortly after the court’s decision was issued yet didn’t discuss the issue, not wanting to open a “can of worms” until more information was known. He, like other council members, said he hoped to obtain guidance from the Department of Education as soon as possible. He expressed a concern―which resonated with others―about whether this decision would “mess with [federal] grants.” Tom Hyatt, AGB’s general counsel, responded, saying legal challenges are already underway concerning financial aid and the awarding of scholarships.

A chair of a large state system noted that her board had been discussing this anticipated decision since April and recognized it will have to review certain programs in light of the decision—in particular those involving outreach to Hispanic students. She said she looks forward to the council sessions and the opportunity to hear what other chairs and their institutions are doing about important issues.

Derby stated that a primary purpose of the Council of Board Chairs is peer-to-peer sharing for the purpose of learning from one another. She noted the value of such conversations as institutions across the country seek to answer pressing questions about how to meet their diversity goals within the new limitations. Cristin Toutsi Grigos added that AGB is focused on developing resources to assist boards in their deliberations in this new higher education environment.

AGB Senior Fellow, Merrill Schwartz, put forward some important unanswered questions: Does the Supreme Court ruling on affirmative action move the locus of decision-making to the state level on many issues? Will gender diversity and STEM be next on the docket of courts? Tom Hyatt and Eric Groves offered convergent opinions that these legal challenges are already in the pipeline and just waiting for complainants. The recent decision on race has established a precedent.

Topics for Future Council Meetings

The council spent the final 15 minutes of the session considering various topics to address in upcoming meetings. One suggestion that engendered considerable discussion was the importance of board chair succession planning. Others suggested the value equation and college affordability as future topics, as well as the implications of more students pursuing learning opportunities outside the traditional higher education paradigm.

In closing the session, Toutsi Grigos alerted everyone that ABG was sponsoring a webinar on the impact of the affirmative action ruling on September 6:
The End of Race-Based Admissions: Important Considerations for Boards.

AGB also recently issued a policy alert on the decision:
AGB Policy Alert: Supreme Court Rules Race-Based Admissions Unconstitutional

Questions for Board Members from AGB’s Policy Alert

  1. How does the U.S. Supreme Court decision affect our admission policies?
  2. How might it impact our mission or operations beyond enrollment? What alternative strategies might we pursue to achieve our goals while also staying in legal compliance?
  3. Who is responsible for ensuring our enrollment processes are legally compliant?
  4. How might the budget need to change, if at all, to serve our mission in light of the decision?
  5. How might the decision impact our fundraising or philanthropic priorities?

Jill Derby, Ph.D., is an AGB senior fellow and senior consultant and a co-ambassador for AGB’s Council of Board Chairs.

With thanks to AGB Mission Partner RNL for their support of this council.

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