At the end of its term, the Supreme Court upended established equal protection law with its decision in SFFA v. Harvard and SFFA v. UNC, effectively eliminating the use of affirmative action in college admissions. The court’s decision disregards prior precedent, as well as the societal realities of race discrimination and inequality.

Many schools, as well as the courts, recognize that diversity exposes students to new ideas and ways of thinking, prepares them to live and work with one another in a diverse society, and increases understanding and respect across differences. Those findings have not changed, although schools will need to rely more on other means of cultivating a campus where students of all backgrounds can learn together.

While this legal decision is indisputably a major setback, it is not the end of the drive to open educational opportunities for people of color. As we press forward in this work, here are four answers to crucial questions in the wake of the affirmative action rulings:

Affirmative action in college admissions has been an important tool, but it is not the only avenue for ensuring that educational opportunities are open to all. In the absence of affirmative action, it is more important than ever that schools work to identify and remove inequitable barriers to higher education. At a minimum, schools must continue to comply with federal and state civil rights laws that require them to provide educational opportunities on an equal basis. They can achieve this by ensuring that policies and practices do not unnecessarily limit opportunities for people on the basis of race or ethnicity (or other protected characteristics, including disability, sex, sexual orientation and gender identity) and by ensuring that school climate enables all students to access and engage with educational opportunities.

Other ways to increase opportunities include:

Creating a campus environment where students feel they belong and can fully engage academically is important to student recruitment and to students’ success once enrolled. This can include making classroom teaching methods more fair and inclusive; providing curriculum, programs and activities that speak to students’ diverse interests and lived experiences; reforming programs intended to fill k-12 learning gaps; removing financial obstacles to academic success; addressing bias in advising; meeting students’ basic needs for food, housing, and transportation; and supporting the needs of parenting students.

Additionally, ensuring that higher education opportunities are open to everyone requires taking a broader view of higher education. The affirmative action cases depict a higher education experience that begins with a highly competitive admissions process to an elite institution where students graduating from high school spend the next four years on campus. Equity for students who follow this path is important. But most students, regardless of their race or ethnicity, do not follow this path, and ensuring educational opportunity is open to all is broader than this. Enhancing support for community colleges and addressing educational equity across the spectrum of higher education is also important.

The decisions in the SFFA cases address the unique practice of affirmative action in higher education. They do not alter the substantially developed body of law setting the standards for compliance with federal civil rights in other areas, such as employment, lending, and housing, which each contain specific obligations. Entities are still required to comply with existing guidance in these areas.

American Civil Liberties Union

What You Need to Know about Affirmative Action at the Supreme Court | ACLU

Two cases before the high court will determine whether race conscious admissions policies can be used by universities.

Additionally, all recipients of federal financial assistance are required to comply with Title VI of the Civil Rights Act, which prohibits entities from discriminating, including through policies that have the effect of unnecessarily disadvantaging people on the basis of race. As with schools, recipients of federal funds can and should operate with neutral policies and practices that ensure opportunities are open equally to people of all races. This means that entities should periodically review their policies and practices to ensure that they do not unnecessarily inhibit equal opportunities on the basis of race or otherwise.

The SFFA decisions do not alter the legal landscape for K-12 education. In 2007, the Supreme Court clarified in Parents Involved in Community Schools v. Seattle School District No. 1 that K-12 schools cannot use race-based student assignment practices to pursue diversity and integration. Following this decision, K-12 schools have already been operating under the guidelines similar to those announced for colleges in the SFFA decisions. The Supreme Court recognized the important values of diversity in K-12 education, and those values can be pursued through neutral policies. The court’s decision this term in Allen v. Milligan reaffirmed the understanding that examining the effects of government policies to ensure that opportunities are “equally open” to people of all races is permissible.

Affirmative Action Is the Floor, Not the Ceiling

Affirmative Action Is the Floor, Not the Ceiling

For over half a century, Affirmative Action has woven its way into the fabric of our society through nondiscrimination policies and initiatives aimed at establishing equal opportunity for women, people of color, and other minorities across schools...

For over half a century, Affirmative Action has woven its way into the fabric of our society through nondiscrimination policies and initiatives aimed at establishing equal opportunity for women, people of color, and other minorities across schools...

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Schools are required at a minimum to comply with federal and state civil rights laws requiring educational opportunities to be equally available to students of all races. The educational mission of K-12 schools is best served when all students can learn together. School districts can and should continue to use a range of tools to address racially divided educational settings.

Warning: This article discusses sensitive topics such as the misuse of human remains, funeral objects, and graves as well as cultural insensitivity and racism. American Indian remains will be referred to as ancestors.   

Indigenous peoples of the Americas have been the victims of systematic discrimination in the past, which has included the taking of American Indian land, the denigration of American Indian languages and cultures, the isolation of Indigenous peoples on American Indian reservations, the denial of rights of citizenship, and efforts to remove or exterminate various tribes and peoples. The effects of this discrimination continue today.   

This month Indiana became a hub for discussing accountability of universities, federal organizations, and museums as they work to return Indigenous ancestors and funeral artifacts to Native American tribes. The ongoing process of returning ancestors from Indiana, Illinois, and across the country is critical, and more must be done.  

Earlier this month, Indiana University Bloomington (IU) and the Miami Tribe of Oklahoma jointly hosted the National Native American Graves Protection and Repatriation Act (NAGPRA) Review Committee meeting. Enacted in 1990, NAGPRA requires federal agencies and museums receiving federal funds to repatriate Indigenous cultural items, human remains, funerary objects, sacred objects, and objects of cultural patrimony to relevant descendants, American Indian tribes, Alaska Native Corporations, and Native Hawaiian organizations. This meeting aimed to assess the progress made in complying with NAGPRA.  

Several institutions, including Indiana University Bloomington (IU), possess significant collections of indigenous ancestors, cultural artifacts, and funeral objects. Among many of the tribes and peoples historically connected to Indiana, Miami Tribe of Oklahoma expressed the profound significance of their ancestors. During the meeting, Scott Willard, the NAGPRA director for the Miami Tribe of Oklahoma, highlighted the long-standing mistreatment of their ancestors stating, "For 150 years, our ancestors have been treated like objects, play things... " Moreover, he expressed concerns over new attitudes, stating ancestors are now viewed as “throwaway items” Willard then emphasized "they need to be recognized as the flesh and blood human beings that walked these grounds.” 

Cultural and Spiritual Significance 

Native communities across North and South America, as well as Hawai'i, maintain deep cultural connections to their ancestors, sacred ceremonies, and gravesites. The ancestors, artifacts, and objects are not only culturally and spiritually important but should also be acknowledged for the inherent value they hold in terms of human life, land, and possessions. It is crucial to recognize that some of these ancestors are grandparents to living individuals.  

Regardless of one's cultural background, it is difficult to fathom the loss experienced when one's grandparents are stolen from their resting places, confined to boxes, and stored in institutional basements for examination, testing, or neglect.  

Presentations and Challenges According to Institutions 

Indiana University started its NAGPRA office twenty-one years after NAGPRA went into effect. A year after that, IU had its first consultation with four tribal nations. During the NAGPRA committee meeting, the NAGPRA office of IU revealed the challenges faced in inventory completion, particularly regarding the accurate allocation and minimum count of ancestors. An example of the tedious work given was that the office would have to use a funnel bone to search for human remains.  

The process of examining buried items places logistical and spiritual burdens on tribal nations, emphasizing the necessity of an appropriate documentation process to alleviate these concerns as pointed out by the representative of the IU NAGPRA office. While IU's NAGPRA office successfully repatriated 700 ancestors, it is essential to understand that this should be the minimum standard. Even after this big project, reports suggest that IU may still have approximately 4,000 ancestors in their possession, indicating the need for increased funding for the NAGPRA office, according to ProPublica. Tribal representatives and native speakers from the meeting stressed that many tribes do not have adequate funding nor staff to safely transport these ancestors back home. They argue institutions should bear the responsibility of repatriation to honor tribal nations' wishes. 

These circumstances highlight the urgent need for increased NAGPRA funding and improved coordination between federal facilities, non-federal facilities, and tribal nations to ensure effective implementation of NAGPRA, according to multiple representatives from the meeting. Adequate financial resources and enhanced reporting mechanisms are essential to expedite the repatriation process and honor the rights of Indigenous communities. By addressing these challenges, state, private, and federal facilities can work towards a timely and comprehensive resolution, respecting the cultural heritage and dignity of Indigenous ancestors and communities.  

Native Voices 

During the NAGPRA Review Committee Meeting, Marie Richards of The Sault Ste. Marie Tribe and Donna Chrisjohn of the Sičháŋǧu nation and Diné people emphasized the importance of engaging with tribal nations across the country, not solely those residing in a specific state. Richards specififcally highlighted the importance of tribal consulation, stating “our pre-contact past is controlled by archaeological understanding that was developed without talking to the tribes and excluding us, and even at times dismissing what we have to say.” 

Both highlighted that Indigenous peoples traversed the United States pre-contact and were moved post-contact, resulting in ancestors resting across various regions. They both pointed out that inclusive consultation with a wide range of tribes is essential to ensure comprehensive repatriation efforts. Additionally, Chrisjohn expressed her concern regarding the exorbitant funding requests by large institutions, stating that it is unacceptable that over $200 million and 26 years is needed for any significant progress in NAGPRA compliance. Considering that the act has been in place for 33 years, such prolonged delays are concerning and hinder the timely return of ancestral remains and cultural artifacts to Indigenous communities.  

Advocacy Efforts

During the meeting, Timothy McKeown, a repatriation consultant and NAGPRA committee member stated that the stealing of Native American cultural items, human remains, funerary objects, sacred objects, and objects of cultural patrimony is not “a Native American concern, it’s a world concern.” 

The NAGPRA review committee clarified during the meeting that members of Congress possess the ability to address the issue of federal funding and investigating institutional compliance. The review committee encourages individuals to write to their respective congressmen. Organizations such as the National Association of Tribal Historic Preservation Officers, the Association for American Indian Affairs, the National Congress of American Indians, and the American Alliance of Museums Society for American Archaeology are actively engaged in lobbying efforts to support these causes.  

Indigenous peoples and their governments have suffered discrimination and injustice at the hands of the United States since the country’s founding, yet contemporary civil rights discussions all too often ignore their rights.  

In the pursuit of justice and equality, Hoosiers must stand alongside Indigenous communities and advocates for the repatriation of Indigenous ancestors and cultural artifacts. By amplifying the voices of Indigenous communities and advocating for their rights, we can ensure the proper recognition, preservation, and respect for their cultural heritage. Let us unite in our commitment to justice for all.  

ACLU of Indiana recognizes we sit on the homelands of the Shawnee, Miami, Wea, Potawatomi, Delaware, Wyandot, Kickapoo, Piankashaw, Chickasaw peoples (Saawanwa, Myaamiaki, Waayaahtanwa, Bodwéwadmik, Lënape, Wyandotte, Kiikaapoa, Peeyankihšiaki, Chik’asha Ashachi) and other Indigenous peoples that go unrecognized.