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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.
Angela Smith and Leslie Spencer
Daily Princetonian
Excerpt: In a recent Opinion piece, Siyeon Lee and Charlie Yale critiqued a letter from Princetonians for Free Speech (PFS) to entering first-year students that appeared recently in The Princeton Tory, the University’s leading conservative political magazine. In their piece, Lee and Yale questioned why we chose to publish in “a journal that only appeals to a select few on this campus,” and accused us of holding “selective views of free speech.”
To be clear: there is no such thing as free speech for some but not for others. Other than speech that is unprotected by First Amendment law, PFS is committed to defending the widest possible freedom of speech and open discourse for everyone, no matter how unpopular or offensive the point of view.
By Tal Fortgang ‘17
With students returning to campus for the start of the new academic year, and demonstrations from radical groups sure to crop up on quads once again, one question universities face is how to balance robust academic freedom with universities’ competing interests. Schools cannot live on academic freedom alone; the functioning of a university requires standards, rules, and regulations to allow students and faculty to flourish. Yet university leadership, especially at elite schools where abstract thinking is prized and questions are regularly left unanswered as matters of mere intellectual exercise, has not even begun to articulate a principled way of weighing these matters. They can begin to do so by considering an unlikely – and unwitting – source of wisdom: Princeton professor Lorgia García Peña’s recent address to the Socialism 2025 conference, on using one’s academic perch to dismantle the academy.
Charlie Yale
Daily Princetonian
Excerpt: During his 2020 campaign for the Democratic nomination, a video of then-Harvard freshman Pete Buttigieg made its way around the internet. In the video, Buttigieg asks Larry Summers — Secretary of the Treasury under Bill Clinton — a question at a talk Summers gave on campus about how American economic policy could hail “a tangible qualitative human improvement worldwide.”
It is a real privilege as a student in a changing world to be able to hear speakers from every walk of political life talk about what they think is important. But, fundamentally, these events do not advance discourse on pressing issues if attendees are not given the opportunity to question the speakers. Students deserve the opportunity to ask questions of political leaders who speak on campus, and not just the questions that are pre-selected by a leader’s staff.
