In the wake of the Supreme Court’s decision to end affirmative action in college admissions, many higher education leaders and students are looking for alternative ways to foster diversity on their campuses. The trouble is, there is no good substitute for race-based affirmative action at this moment in time, so colleges and universities must find innovative ways to support marginalized students, who make up a growing share of today’s youth.

Contrary to popular belief, college students are no longer predominately dependent, recent high school graduates. More than one-fifth of college students are parents, approximately 2% are undocumented, and over a third are racially diverse, yet many higher education policies and practices still mainly serve 18-to-22-year-old White students.

Instead of attacking and dismantling affirmative action and diversity and inclusion initiatives, our courts, political leaders, policymakers, and college and university leaders should be adapting policies and practices for an increasingly diverse and multicultural student population and/or implementing new policies and practices that expand higher education access to students who have historically been excluded. If the U.S. is going to stay economically competitive, it cannot afford to ration access to a college education — which is linked to workforce participation and success — or leave any students behind.

A good first step would be for higher education institutions to “Ban the Box” or remove questions about a student applicant’s history with the legal system on admissions applications. Such questions pose an undue barrier for people of color, who are disproportionately impacted by the legal system because of racial profiling and disparities in sentencing. In 2018, The CommonApp, an undergraduate college admission application for more than 800 colleges and universities, stood by its commitment to “advancing access, equity, and integrity in the college admission process” by removing the collection of information about an individual’s history with the legal system from their application. CommonApp went further in 2020 when they announced they would no longer ask high school discipline questions after CommonApp found racial and economic disparities among students who reported a high school disciplinary history and in light of research showing that schools discipline Black and Latino students from low-income backgrounds at higher rates than students from middle- and high-income backgrounds.

As U.S. colleges and universities grapple with declining enrollments and attacks on race-conscious admissions, banning the box is one way for institutions to open their doors to the nearly 70 million Americans facing barriers to college access due to a history with the legal system. Banning the box is an issue that policymakers must address at the federal, state, and institutional levels. Fortunately, there are examples at the state level that can serve as models for ensuring college access for justice-impacted students.

The Unlock Higher Education (UHE) Coalition, led by individuals who’ve been directly impacted by the legal system, continues working with grassroots organizations and legislators to introduce Ban the Box legislation. UHE has successfully passed Ban the Box legislation in seven states, including California, Colorado, Louisiana, Maryland, Oregon, Virginia, and Washington.

Students have also been a part of conversations urging their institutions to join the Ban the Box movement. For example, Students Against Incarceration, a student organization at DePaul University, recently met with senior administrators to discuss striking questions about an applicant’s history with the legal system from their applications entirely. At Yale University, students of the Justice Impact Movement chastised their university for preserving the carceral state while simultaneously operating a higher education in prison program — the Yale Prison Education Initiative. The conversations are happening; now, higher education institutions must act.

Fortunately, advocates, students, and researchers have provided blueprints for moving forward. Below are some key recommendations.

  1. Do not request information about an applicant’s engagement with the legal system in an initial admissions application.
  2. After a higher education institution has determined that an applicant is otherwise qualified for admission, its officials may inquire or request information (but are not required to) about an applicant’s history with the legal system for the purpose of:
    • Accepting or denying an applicant admission to the institution or restricting access to campus residency or
    • Offering supportive counseling or services to help rehabilitate and educate the student about barriers faced by those with a history with the legal system. After inquiring into or obtaining information under this section, a higher education institution may not automatically or unreasonably deny an applicant’s admission or restrict access to campus residency based on that applicant’s history with the legal system.

Institutional leaders and administrators must engage with students — especially those impacted by the legal system — advocates, community organizers, community-based organizations, and student affairs professionals and scholars to ensure that they’re implementing robust, culturally responsive, and trauma-informed policies and resources. This moment does not call for fear but action toward equity for all.

Satra D. Taylor, director of higher education and workforce policy and advocacy, and higher education doctoral student at the University of Maryland College Park