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By Marisa Hirschfield ‘27
On September 17th, Harvard Law School professor Jeannie Suk Gersen delivered the annual Constitution Day Lecture in McCosh 50. The lecture, co-hosted by the James Madison Program and the Program in Law and Normative Thinking, was entitled “Our Civil Rights Revolution.” Professor Gersen discussed the history of affirmative action and the evolving meaning of civil rights.
Gersen began by outlining the two main interpretative approaches to the Fourteenth Amendment, which underpins the affirmative action decisions. The anti-subordination approach to equal protection takes race into account to remedy racial hierarchy and protect against discrimination. The anti-classification approach understands the Constitution to be functionally colorblind – to differentiate between races, under this view, is to discriminate. According to Gersen, in modern doctrine, the anti-subordination approach is generally considered to be illegitimate.
The Court can only uphold a classification on the basis of race if it passes the test of strict scrutiny. That is, it is narrowly tailored to achieve a compelling interest. As Gersen put it, “The lawfulness of a racial classification will turn on an evaluation of how weighty the goal is, and how closely the means used is fitted to the end.”
In 1978, in University of California v. Bakke, a divided Court ruled that student body diversity was a compelling reason to permit classification on the basis of race. Though the Court deemed racial quotas unconstitutional, it endorsed Harvard’s race-conscious admissions model as consistent with Title Vl of the Civil Rights Act of 1964 and the Fourteenth Amendment. Gersen said, quoting Harvard’s amicus brief, “The race of an applicant may tip the balance in his favor just as geographic origin, life spent on a farm, may tip the balance in other candidates. A farm boy from Iowa can bring something to our college that a Bostonian cannot offer. Similarly, a Black student can usually bring something that a White person cannot offer.” Affirmative action, as articulated here, became precedent for the next 45 years.
Gersen soon shifted focus to more recent developments. In 2023, the Court ruled in Students for Fair Admissions v. President and Fellows of Harvard College that affirmative action violates Title Vl. “The story of what happens after SSFA v. Harvard is still nascent, but it has been apparent that SSFA v. Harvard was a marker for the twilight of a civil rights consensus that grew out of the 1960s,” explained Gersen.
In the wake of the ruling, Gersen has seen a new vision of civil rights emerging. The Trump administration has been dismantling diversity, equity, and inclusion programming across the country, viewing it as discriminatory. These actions, Gersen said, illustrate a civil rights revolution.
“The most egregious discriminators and civil rights violators are institutions and individuals…that, like Harvard in the previous era, are working to create racial diversity. In this paradigm, DEI at the university is the new racial segregation.”
Gersen went on to question whether racial neutrality is indeed the end goal for affirmative action critics. She cited an example from this past spring: the Justice Department's Civil Rights Division requested that universities share admissions data since 2023, disaggregated by race.
“This raises the question of whether schools are getting a message from this that they should take care to avoid admitting too many racial minorities in order to avoid investigations for civil rights violations,” she said. “It makes me wonder if a new kind of quota system is in the course of being created in which not having a specific number of White and Asian students is kind of a proxy for unlawful conduct.”
Reflecting on what she understands to be a new civil rights order, she told the audience: “The meaning of the Civil Rights Act is in the process of being turned around, revolving from a law that we envisioned as protecting minorities or historically subjugated groups against discrimination… to a law that treats with suspicion attempts to respect minorities or historically subjugated groups.”
Marisa Hirschfield ’27 studies History and Creative Writing and is a PFS Writing Fellow and Social Media Coordinator.
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