Affirmative Action Struck Down

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By American Indian College Fund

July 02, 2023

Guest Opinion. Concerns for Student Access to Higher Education and Implications for American Indian and Alaska Native Students

The American Indian College Fund is disheartened and concerned that the U.S. Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College will impinge on the equitable access to an affordable higher education for American Indian and Alaska Natives and other diverse student groups. We refuse to let this decision reverse decades of progress in educational achievement which has benefitted talented and accomplished Native students and other diverse students with the opportunity for an affordable higher education, along with their families, and their communities. 

In the Supreme Court’s 6-3 majority opinion, Chief Justice John Roberts, who wrote the majority opinion, stated race-based admissions programs at the University of North Carolina and Harvard University were unconstitutional because they “unavoidably employ race in a negative manner” and use “racial stereotyping.” Roberts, continued, “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, or otherwise. But despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

The College Fund stands with Justice Sonia Sotomayor, who dissented, when she said the Court “stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continued to matter.”

Sotomayor continued that the majority opinion is not grounded in law or in fact. President Joe Biden concurred in his statement to the nation, saying, “The court has effectively ended affirmative action in college admissions and I strongly, strongly disagree with the court’s decision,” adding, “the court has once again walked away from decades of [legal] precedent.”

President Biden went on to say affirmative action was misunderstood. The policy, which began as an executive order to counter racism, had been revised and was practiced through university policies that considered myriad attributes of qualified student candidates to create diverse student bodies. 

“The truth is, we all know it, discrimination still exists in America,” President Biden said. “Discrimination still exists in America. Discrimination still exists in America,” he repeated. “Today’s decision doesn’t change that. We cannot let the decision be a permanent setback for the country.”

Factually, the American Indian College Fund knows a colorblind society the Court alleged to strive for in its decision is not borne out in practice. We know this because of our experiences in the lives we lead in the real world outside of the halls of the Court.” 

Although Native peoples adhere to the legal distinction of American Indians as being citizens of sovereign nations rather than a racial group, we acknowledge there is a duality in how American Indians in the United States are classified in practice, as both sovereign peoples and as a racial group. 

With regard to the facts of our lives lived in the real world that show us that, in fact, we do not live in a colorblind world: Our histories and cultures are still being removed from curricula across the country. Students continue to face prohibitions from wearing regalia at graduation ceremonies.  Native students are frequently excluded from accessing campus resources and rarely see themselves represented on college campuses. 

With regard to the inequitable treatment of Native people under the law, we know ths harkens back to the Declaration of Independence, in which sovereign Indigenous nations were referred to as “merciless Indian savages.” These inequities can be traced throughout the history of our nation through volumes of Indian Law to present today.

This is not meant to discount the lived and legal struggles that other marginalized people have endured. Rather, this is to state the bottom line that American Indians and Alaska Natives (AIAN) benefitted from policies that provide them with equitable access to higher education—along with other groups and we understand the positive economic, mental, and physical health, and other outcomes an education confers on individuals, their families, and communities. We are committed to ensuring this progress continues.

The need for continued access to higher education for Native peoples has not been erased despite this ruling. Despite the great progress AIAN people made in earning a higher education thanks to the tribal college movement and affirmative action, education inequality in Indian Country is disproportionate. Issues such as federal policy have created systemic and generational poverty and excluded Indigenous people from having the ability to access college—economically, geographically, and socially. Today’s U.S. Census data illustrates the impact of inequity: AIAN people have the lowest higher education attainment rates in the United States (15.0% of AI/ANs 25 years and over have a bachelor’s degree or higher, compared to 32.1% of the overall population).

And this decision will not merely impact admissions access for historically marginalized groups—it could also impact how financial aid is awarded. Most Native students attending college do not enjoy generational wealth and many depend upon financial aid for tuition, books, transportation, housing, food, childcare, and health care. It could also impact students’ admission to leadership and mentoring programs, and employment opportunities in the future.

As Justice Sotomayor also said, “Equal educational opportunity is a prerequisite to achieving racial equality in our nation.” Education, as we say at the American Indian College Fund, was—and still is—the answer—to empowering people to envision and create a future of their choosing. Those benefits, not incidentally, are to the benefit of the entire country—making it more competitive, sustainable, and secure.

It is for this reason we are aggrieved by the Supreme Court’s decision, while remaining unequivocally in favor of higher education policies and practices that equalize pathways to a higher education for Indigenous peoples.

Our students belong where they dream to be. They are worthy, they deserve to achieve their potential. We all depend upon their brilliance to lead and innovate today and in the future. The work of scholarship organizations like the College Fund is more important than ever as we continue to remove financial barriers to student access and support. We offer students and their families the encouragement and care that shows them that they matter and have our support.

We thank the other national Native scholarship providers, higher education institutions, policymakers, and our supporters for committing to work with us to ensure our nation’s campuses are accessible to all, our students are welcome, and Native cultures and contributions are embraced. We will be working to update you on ways to collaborate to give young Native people the education and opportunities they deserve.

The American Indian College Fund has been the nation’s largest charity supporting Native higher education for 33 years. The College Fund believes “Education is the answer" and provided $14.45 million in scholarships and other direct student support to American Indian students in 2021-22. Since its founding in 1989 the College Fund has provided more than $284 million in scholarships, programs, community, and tribal college support.