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.

Last month, the Supreme Court issued a decision in Haaland v. Brackeen, delivering a landmark victory for tribal sovereignty, Native children, Native families, and the future of Native people. In a 7-2 decision by Justice Amy Coney Barrett, the Court rejected all of the constitutional challenges to the Indian Child Welfare Act (ICWA) — some on the merits and others for lack of standing.

The ACLU submitted an amicus brief in the case, and has been following the issue closely because of the profound threat it poses to Indigenous communities, particularly federally recognized tribes in the United States. In light of this victory at the Supreme Court, we are now urging states to take action and introduce or strengthen existing state-level ICWA protections.

ICWA was passed in 1978 to establish basic requirements to protect Native American children from removal from their homes and communities. These protections are essential given centuries-long attempts to destroy Native peoples through genocide and massacres, forced assimilation, and legalized kidnapping during the boarding school era. Native people are also deeply overrepresented within the family regulation system, where unfamiliar cultural practices and poverty were (and are) consistently misused to tear apart Indigenous families and communities and place Native children with white, Christian families.

Before ICWA, approximately one third of Native American/Alaska Native children were taken from their homes by state welfare agencies and private adoption agencies, and a shocking 85 percent of those children were placed outside of family or community care with non-Native people. ICWA sought to change these devastating policies and practices by creating heightened procedural protections when Native children face removal, and creating preferences for foster or adoptive placement with extended family, the child’s tribe, or another tribe.

In Brackeen, non-Native couples and the state of Texas attacked ICWA on four grounds: congressional power, the anticommandeering doctrine, equal protection, and nondelegation. On the first two grounds, the victory was decisive. The court reaffirmed that “Congress’s power to legislate with respect to Indians is well-established and broad.” While the court cautioned that the power of Congress is not unlimited, its positive references to precedent regarding criminal law, domestic violence, employment, property, tax, and trade make major upheavals on this issue in the future unlikely.

American Civil Liberties Union

Brackeen v. Haaland | American Civil Liberties Union

The ACLU and partners, represented by Cooley LLP, filed an amicus brief urging the U.S. Supreme Court to uphold the constitutionality of the ICWA.

The court’s anticommandeering analysis was equally decisive. In a nutshell, the anticommandeering doctrine says that the federal government can’t require states to adopt federal law or use state resources, funds, or personnel to enforce federal law. Leveraging this argument, ICWA’s opponents argued the law violated the 10th Amendment — a misreading of the doctrine that could’ve upended the longstanding balance between federal and state law and the rights of Native people to be free from discrimination and governmental abuse. But the court’s decision makes clear that ICWA applies to both state and private actors, and, where the law does require state courts to apply federal law, well, that is just how preemption works. On these issues, the decision sends a clear message to ICWA opponents that these attacks on the federal government’s ability to shape state law and policy on matters of tribal sovereignty have no legal foundation.

The court did not entertain the incredibly far-reaching equal protection arguments urged by plaintiffs or the nondelegation doctrine, finding that none of the plaintiffs had standing. The plaintiffs sought an injunction against federal officials, but it is state officers who apply ICWA, in state court proceedings. The court reasoned that a decision on equal protection would not rectify the plaintiffs’ asserted injury — that non-Native parents are on unequal footing with Native parents given ICWA’s placement preferences. And Texas doesn’t have equal protection rights to advance.

We hope this decision will lay to rest the attacks on tribal sovereignty. However, the ACLU will continue to monitor the corporate-backed powers that pushed this case to the high court for any sign of further attacks on ICWA, along with other laws impacting federally recognized tribes.

Now that the Supreme Court has reaffirmed ICWA’s validity, states must act swiftly to pass their own state ICWA laws to strengthen the implementation of the federal law. As outlined below, several states have already passed such laws. The ACLU urges states that have not yet done so to act now. ICWA creates a floor of strong protections, but states are free to build on this foundation and further support tribal child welfare systems. And where the Supreme Court has identified limitations on what federal ICWA requires — for example, in the context of searching for placements that satisfy ICWA’s preferences — states can and should require more. States are also well poised to work with Tribal nations to craft their own ICWA laws that cater to specific issues that might arise in their jurisdiction.

American Civil Liberties Union

Protecting the Indian Child Welfare Act at the State Level | ACLU

The Supreme Court issued a landmark victory for tribal sovereignty in Brackeen v. Haaland.

As states develop this legislation, lawmakers should codify protections that go beyond the federal legislation — as many states have already done. For example, Washington State’s ICWA law states that when Native children are removed from the home, preference must go first to extended family, whether Indian or non-Indian, then to tribal and other Indian homes near the child’s home. While we encourage state legislatures to look to other states that have adopted their own ICWA laws, we recognize that each state is unique — especially in regard to the varying characteristics and needs of its Native American constituents. States must engage with leaders from Tribal nations at each step of the way.

For states that already have ICWA legislation on the books, we again encourage lawmakers to engage in meaningful consultation with their Native American constituents and leaders from Tribal nations in their state. Lawmakers should ask whether current state ICWA laws are meeting the needs of their communities, and if there are areas for improvement, we urge them to act quickly to protect Native families.

Fifteen years ago this week, then Senator Joe Biden voted no on the FISA Amendments Act, which legalized a secret mass surveillance program that allows the government to collect Americans’ international phone calls, text messages, emails, and other digital communications — all without a warrant. At the time, Biden correctly identified this amendment to the Foreign Intelligence Surveillance Act, which created a new authority known as Section 702, as “constitutionally infirm.” Yet today, his own administration is defending this very same law at his request.

Upon passage, then-Sen. Biden stated he was voting no because Section 702 “would be a breathtaking and unconstitutional expansion of the President’s powers and it is wholly unnecessary to address the problems the administration has identified.” He added that he would “not give the President unchecked authority to eavesdrop on whomever he wants in exchange for the vague and hollow assurance that he will protect the civil liberties of the American people.”

The ACLU agreed and filed a lawsuit challenging the law’s constitutionality less than an hour after it was signed by President Bush. In the 15 years since that first legal challenge, President Biden’s prediction that this law would be used to repeatedly violate the civil liberties of millions of ordinary Americans has come true. What Biden did not predict, however, is that one day he would be ordering his administration to defend this very same law.

While the intended purpose of Section 702 is for the government to obtain “foreign intelligence,” in practice, intelligence agencies frequently use it as domestic surveillance tool. In the last year alone, the FBI conducted over 200,000 warrantless “backdoor” searches of Americans’ communications. The standard for conducting these backdoor searches is so low that, without any clear connection to national security or foreign intelligence, an FBI agent can type in an American’s name, email address, or phone number, and pull up whatever communications the FBI’s Section 702 surveillance has collected over the past five years. These backdoor searches allow law enforcement to access constitutionally protected communications that would otherwise be off-limits without a warrant.

More recently, following a FOIA lawsuit by the ACLU, the government released an opinion issued by the Foreign Intelligence Surveillance Court showing that the FBI improperly used Section 702 to spy on Black Lives Matter activists protesting George Floyd’s murder at the hands of police, on January 6th suspects, and over 19,000 donors to a congressional campaign. Members of Congress on both sides of the aisle have decried these abuses, and this week, the House Judiciary Subcommittee on Crime and Federal Government Surveillance will consider it again during a hearing on FISA. At the end of the year, they will vote once again on whether to reauthorize this unconstitutional law.

There is no real evidence that these backdoor searches actually keep Americans safe. Travis LeBlanc, a board member of the nonpartisan Privacy and Civil Liberties Oversight Board, has stated that based on his review, there are “minimal to negligible examples of the value” of these searches. Indeed, the Biden administration has yet to provide one credible example to the public as to why they can only achieve their purpose by continually violating the Fourth Amendment rights of Americans.

Under the Fourth Amendment, every American has the right to be free from unreasonable searches and seizures by the government. There is no question that if the government wanted to obtain our communications directly, they would need to get a warrant. The circumvention of this requirement through backdoor searches is incompatible with the protections provided to us by the U.S. Constitution.

Fifteen years ago, then-Sen. Biden recognized the unconstitutionality of Section 702 and declared it “unnecessary” to achieving the government’s alleged national security and foreign intelligence goals. These words remain true today, even if his administration now pretends they are not. Whether a tool is convenient for the government does not answer the question as to whether that tool is constitutional. It would of course be easier for the FBI if they never had to secure a warrant for any search. But the purpose of the Fourth Amendment is not to make the government’s job easier or more convenient.

Congress has the power to stop these abuses by refusing to reauthorize this surveillance authority without real, fundamental reforms, including requiring the FBI and other intelligence agencies to obtain a warrant before any search of Americans’ communications.