Race-Neutral Diversity: Can Native American Students Be Admitted to College on the Basis of Their Legal Status?

When the Supreme Court reasserted the constitutionality of affirmative action in 2003, Justice O’Connor wrote in the case of Grutter v. Bollinger, “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The interest she was referring to was student body diversity. Five years sooner than she prophesied, in June 2023, the Supreme Court overturned the use of race in the college admissions process in the cases of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina in a decision of 6-3. 

Affirmative action was not intended to be permanent even when it was validated by the Court in 2003 and again in Fisher II in 2016. After over 40 years of being used to enhance racial diversity on college campuses, it has ended. Colleges’ interest in student body diversity, however, has not. 

Early evidence suggests that the Supreme Court pulled the plug too soon. Since the Supreme Court ruled last year that race could no longer be a factor in college admissions, colleges have gone through one admissions cycle for the Class of 2028 without using race as a factor in admissions, and racial diversity has gone down for many highly-ranked institutions. 

At Harvard, the number of Black students decreased by 4 percentage points (from 18 percent to 14 percent). At UNC, the number of Black students dropped from 10.5 percent to 7.8 percent, and the number of Hispanic students dropped from 10.8 percent to 10.1 percent. At MIT, the combined percentage of Black, Latino, and Native American and Pacific Islander students dropped from 25 percent to 16 percent. At Stanford, the number of Black students fell 4 percentage points (from 9 percent to 5 percent), and the number of Hispanic students fell by 2 percent (from 17 percent to 15 percent). At Brown, the number of students from underrepresented groups fell from 27 percent to 18 percent. Many other universities report similar decreases in diversity in the wake of the SFFA cases. 

Given that the populations of Native American students at highly-ranked universities are already small, the impact of the end of affirmative action on Native American applicants is harder to measure. However, at Harvard, the number of Native American students dropped from 2 percent to 1 percent between the Classes of 2027 and 2028. At UNC, the number of Native students dropped by 0.5 percentage points. At MIT, the Native student population decreased from an average of 2 percent across the Classes of 2024-2027 to 1 percent in the Class of 2028.

Racial diversity is important for colleges because, according to Justice O’Connor’s opinion in Grutter, it promotes “cross-racial understanding and the breaking down of racial stereotypes … and better prepares students for an increasingly diverse work force.” However, colleges promote diversity through a host of other factors besides race in the college admissions process. For instance, the attorney for UNC argued before the Supreme Court in 2022 that the university considered forty separate factors of an application. These already included race-neutral factors like geographic location, family income, and first-generation status. 

The use of race-neutral factors in admissions with the goal of promoting diversity on college campuses, as California public universities have done since California’s implementation of Proposition 209 in 1996 and the University of Michigan has done since Michigan adopted the Affirmative Action Initiative in 2006, has yet to yield the same amount of diversity as affirmative action. Of course, a school explicitly manipulating its admissions process to maintain the same percentages of student body diversity would violate the Court’s 1978 holding in Regents of University of California v. Bakke that schools may not impose racial quotas or (according to Grutter) use race in a “mechanical, predetermined” way. 

However, one factor that colleges can freely consider in the admissions process is nationality. Many U.S. universities have sizable and diverse international student populations on campus. For example, Harvard boasted that 15.4 percent of its admitted students in its Class of 2028 hailed from 94 different foreign countries. 

Native Americans have a unique legal status that recognizes their dual political identity as members of sovereign tribal nations and as U.S. citizens. The Indian Reorganization Act (IRA) of 1934 formally allowed tribes to form their own governments and constitutions, but prior to that, the Indian Citizenship Act of 1924 formally granted Native Americans U.S. citizenship. 

Colleges have historically been able to use Native Americans’ legal status in their admissions process. For example, tribal colleges and universities (TCUs)—institutions chartered by their tribes or the federal government—are required to collect information about students’ enrollment in a federally recognized tribe. According to 2016 data from the American Indian Higher Education Consortium, TCUs accounted for 67 percent of Native American student enrollment in higher education. 

Additionally, a growing number of schools give tuition waivers based on Native American status. The University of Maine has had a tuition waiver since the 1930s. Montana and California now both also offer full-tuition waivers. The University of Arizona and the University of Michigan have free tuition for Native students enrolled in federally recognized tribes in their states, and the University of Rhode Island offers a full tuition scholarship to students of Narragansett Indian ancestry. Some schools like Oregon State University will give in-state tuition to federally recognized Native students from any state. 

Notably, these tuition waivers and discounts reflect a political relationship for members of federally or state-recognized tribes that is not race-based. They have even been recently implemented in California, a state that has had race-neutral college admissions processes since 1996. 

Unfortunately, these tuition waivers do little good for Native American students who are not admitted to these colleges in the first place. Using enrollment in a tribal nation as a positive factor in a holistic admissions process (not unlike the way in which colleges admit international students), therefore, might be a race-neutral way of promoting Native Americans’ access to higher education. 

However, this could still pose a number of logistical problems for colleges and Native applicants. 

First, no colleges other than TCUs are required to verify that students they are accepting and counting as Native American have documented enrollment status in a federally recognized tribe. Second, because mainstream institutions of higher education tend to rely only on self-reporting, if a Native American student fails to indicate that they are a tribal citizen, they are not counted. These two difficulties mean that mainstream colleges and universities would have to adjust their admissions processes to verify Native students’ legal status. 

Finally, therefore, this places a higher burden on Native American students to prove their legal status through documentation, which can in certain cases be challenging. For example, some students may belong to tribes that are not federally recognized; some students may have been disenrolled from a tribe if they have had a family member opt out or have come from foster care; some students might not meet their tribe’s blood quantum requirement to be an enrolled member. 

It is still unclear how the recent SFFA v. Harvard and SFFA v. UNC affirmative action cases will impact Native American students applying to college in the long-term. However, if colleges are serious about their goal of maintaining diversity on their campuses to the greatest extent possible within the letter of the law, using tribal enrollment as a factor in admissions might be a constitutional alternative that is race-neutral, targeted, and effective at achieving that goal with respect to their Native American student populations.

Cate Gutowski is a sophomore at Brown University studying English and Political Science. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at catherine_gutowski@brown.edu. 

Veronica Dickstein is a junior at Brown University studying International and Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.