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The Future of Equity Policies in Higher Education Without Affirmative Action

By Allison L. Palmadessa, author of Power, Discourse and the Purpose of Policy in Higher Education: A Genealogical Study of the Higher Education Act

The recent Supreme Court decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard University and Students for Fair Admissions, Inc. v. The University of North Carolina, et. al (SFA v. Harvard/UNC) to eliminate affirmative action policies in higher education admissions challenges over 75 years of policy progress in the fight for equity in higher education access. Will this challenge reverse the progress towards equitable access or does it stand to reinforce formidable barriers for those who are underprivileged by forces outside of their control? The policy implications of this decision are not yet apparent, but given the historical progression of higher education opportunity policy and the current, unsettled socio-political climate may in fact facilitate the closure of the door to higher education for even more qualified students. 

The argument in the dual cases of SFA v. Harvard/UNC focused on discriminatory practices in admissions that favored or excluded specific subpopulations of student-applicants. After losing in district court, building a further case and the course of almost a decade of change at the federal level, the case reached the Supreme Court.

In Chief Justice John Roberts’ (2023) opinion of the court, he declared that affirmative action in higher education admissions policies violated the equal protection clause of the Fourteenth Amendment. The court’s decision was predicated not only on the unconstitutionality of the policies at the two representative institutions, but used a foreboding concept that placed a timeline on affirmative action, derived from two landmark cases of precedent, The Regents of the University of California v Bakke (1978, Bakke) and Grutter v. Bollinger (2003, Grutter)

The 1978 decision of the court in. Bakke supported California’s use of race as an indicator for admissions. The distinction of indicator was determined as a beneficial, added criterion for admission, not a determining factor. In Chief Justice Powell’s opinion of the court the use of race in college admissions decisions to diversify the student population, not to prioritize one group of individuals over another or establish quotas, was considered by the court a noble cause, and if within the auspices of the mission of an institution, an appropriate means to reach that goal. In the 2003 Grutter case, affirmative action in admissions policies was again upheld. However, the court warned that affirmative action policies must avoid unintentional stereotyping or exclusion based on race. 

Although affirmative action was ultimately upheld in 2003, the court cautioned that affirmative action policies must have a pre-determined end. In other words, at some point policy should either effectively achieve the goal of diversity on campus, or cease implementation. Grutter closed with noting that in 2003, the Bakke decision was 25 years in hindsight and nationally college campus diversity had improved. Thus, it was argued that in 25 years affirmative action policies would no longer be necessary as, given the previous 25 years of progress, diversity goals should be attained in the next 25 years. That was 2003. Twenty years later, in 2023, affirmative action in college admissions was brought before the Supreme Court; a Court dominated by three conservative Trump-era appointees and three long-time Republican appointees.

Roberts delivered the opinion of the Court arguing that given the premonition by the court in 2003, it was time for action. Roberts argued, “Twenty years later, no end is in sight” for either Harvard or UNC’s policies. Each university argued it is imperative to maintain attention to race in admissions decisions, with no end date for affirmative action policies. Roberts concluded, “we have permitted race-based admissions only within the confines of narrow restrictions” which fail to “comply with strict scrutiny”, are not allowed to “use race as a stereotype or negative”, and “must end” (2023, p. 22). Roberts noted that although the policies of Harvard and UNC were likely well intended, they were in fact in violation of the equal protection clause of the Fourteenth amendment based upon failures under strict scrutiny and lack of terminal point based upon aforementioned criterion. 

What, then, does this mean for other policies that support access to higher education for marginalized populations? This anti-equity position stands to have a much further reach than admissions policies. The Higher Education Act of 1965 (HEA) and its reauthorizations and amendments provide means to protect the underprivileged and support those who desire advanced education but cannot afford high tuition costs. The HEA was one of President Johnson’s victories in the War on Poverty in his effort to create a Great Society. This legislation allocated federal money for low-income students, regardless of race, gender, or any other marginal indicator. However, it did not initially account for how students would be treated once on campus.

This was addressed by one of the hallmark amendments to the Higher Education Act: Title IX. Title IX was added to the HEA in 1972 in an effort to eliminate discrimination in higher education. Title IX specifically states that no one will be discriminated against in intuitions of education for any reason. Since 1972, Title IX has helped countless women and people of color on college campuses. Title IX has come into question in recent years requiring colleges to revise policies and alter procedures based upon the socio-political climate and policy agenda at that moment.

Now, the question is with a reauthorization of HEA on the horizon in a post-affirmative action policy climate, will the federal government uphold other policies that support equity in higher education? 

Given the 2023 decision to overturn affirmative action in higher education admissions, the heavily conservative court willing to reverse major decisions that unequivocally impact marginalized populations, and the divisive socio-political climate, the fight for equal opportunity and equitable practices in higher education is likely heading into a bleak chapter in history. 

Allison L. Palmadessa is author of “Power, Discourse and the Purpose of Policy in Higher Education: A Genealogical Study of the Higher Education Act,” forthcoming Fall 2023.