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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.
Matters of viewpoint diversity have recently received considerable attention in the academy and the media. A recent essay by Lisa Siraganian, “Seven Theses Against Viewpoint Diversity,” makes the case against efforts to increase viewpoint diversity.
I believe that the lack of viewpoint and intellectual diversity within the university has hindered the pursuit of knowledge and the well-being of society. I would thus like to take up Siraganian’s invitation and charge.
“I’ve had the tremendous privilege of knowing so many fantastic students at Princeton, who I know will become extraordinary military leaders. And I think that it would be a massive shame if that potential was eliminated,” the student said in response to an announcement that Secretary of Defense Pete Hegseth ’03 made on Feb. 27. In a video posted on social media, Hegseth announced that the U.S. Department of Defense (DOD) will end sponsorship for graduate students at Princeton and other Ivy League institutions beginning in the 2026–27 academic year.
University spokesperson Jennifer Morrill wrote in a statement to the ‘Prince’ that there are “a dozen active-duty military graduate students currently enrolled at Princeton, representing all four branches of the U.S. Armed services with all but two of those students enrolled at SPIA.” As the policy currently stands, active-duty service members may be unable to attend Princeton for graduate school while remaining in service.
In Part I of this series, I wrote that President Eisgruber’s Terms of Respect deserves credit for clearly distinguishing between free speech as a moral principle and the First Amendment as a legal doctrine, and for rejecting the simplistic claim that universities violate free speech whenever they regulate expression.
In Part II, I analyzed one of the sources of that reluctance and its surprising influence in bringing Eisgruber to this point.
Now we can get to the heart of the book. Eisgruber’s novel approach to campus free speech issues builds on this foundation, to argue that campus free speech issues aren’t really campus issues, and aren’t really about free speech. Rather, campuses reflect national divisions in microcosm, and the division is not about speech and its discontents, but about “the meaning of respect and, ultimately, what it means to treat people as equals.” He ultimately concludes that while speech has to foster constructive dialogue and truth-seeking, the controversies making waves are about the terms on which that constructive dialogue occurs—which is a good thing, as Eisgruber and his critics alike agree—and that universities are closer to being models (albeit imperfect ones) than sources of the problem. It’s this surprising take that gives Terms of Respect its punch and has made Eisgruber a minor folk hero among academia’s defenders.
