The Political Scene | The New Yorker

Episode: What Comes After Affirmative Action
Date: June 28, 2023
Host: Tyler Foggatt
Guest: Jeannie Suk Gerson (Harvard Law School Professor, New Yorker writer)

Overview

In this episode, host Tyler Foggatt and guest Jeannie Suk Gerson discuss the landscape and future of affirmative action in higher education, focusing on the recent Supreme Court cases against Harvard and the University of North Carolina. The conversation, recorded just after oral arguments, delves into the history of affirmative action, current legal claims, the possible end of race-conscious admissions, and how universities might adapt. They also examine broader issues of justice, diversity, class, and the politics surrounding the Court's decisions.

Key Discussion Points and Insights

The Supreme Court Cases and Core Legal Arguments

[02:27-05:53]

• Three types of claims in the Harvard/UNC cases:
  1. The Broad Claim: That affirmative action should be ruled unconstitutional—overturning decades of precedent.
  2. Precedent Enforcement Claim: That even under current precedents, Harvard/UNC violated the rules (e.g., racial balancing, quotas).
  3. Intentional Discrimination Claim: That Harvard discriminated against Asian American applicants.
• Jeannie Suk Gerson: “I still think that it is true that the Supreme Court ultimately will overrule its precedents allowing affirmative action and the use of race in admissions.” [02:52]

The Evolution of Affirmative Action in Law

[06:15-09:38]

• Historical Milestones:
  • Bakke (1978): Outlawed strict quotas, allowed race as one factor among many.
  • Strict Scrutiny Standard: Any racial categorization must serve a compelling state interest and be narrowly tailored.
  • Diversity, not historical remedy, is recognized as the legal justification for affirmative action.
• Jeannie Suk Gerson: “If you just use race as one consideration among many, then that would be constitutional... because that’s not making it like a predominant, determinative, overwhelming factor.” [08:31]

The Concept and Controversy of "Diversity"

[10:26-11:11]

• Critiques and Court Skepticism:
  • Justice Thomas questions the real value and meaning of “diversity” in education.
  • Gerson notes that original rationale for affirmative action was to address structural discrimination, but legally only diversity remains.
• Notable Quote – Jeannie Suk Gerson:
  "He’s [Justice Thomas] famous for having called diversity 'racial aesthetics.' That is how he has characterized it in previous opinions..." [11:11]

Alternatives to Race-Based Admissions

[13:19-15:35]

• Socioeconomic Status as a Proxy:
  • Discussion of whether admitting by class or geography could preserve diversity goals.
  • Harvard claims class alone is insufficient to maintain racial diversity, but Gerson is skeptical a massive drop is inevitable.
  • The system likely to move toward "race-neutral" but mission-driven admissions.
• Jeannie Suk Gerson: "It's unimaginable that a school like Harvard is going to sit back and say, ‘Oh, well, we can no longer consider race.’ That’s not going to happen." [14:23]

From Race-Blind to Race-Neutral: The Future of Admissions

[15:35-23:51]

• Potential Changes:
  • “Race-blind” could be interpreted in multiple ways, but personal essays and recommendations can still reference lived racial experience.
  • The UC and University of Michigan experience: selective schools saw notable demographic shifts, but nuances exist.
  • Courts may allow considering “life experience” shaped by race, but not race itself as a plus factor.
• Notable Quote – Jeannie Suk Gerson:
  "If you want your race to be considered, then you would be writing about it in your essays..." [22:18]
  "We're never going to have actual full colorblindness, because that's impossible. What we're going to have is more camouflage." [23:41]

Legacy and ALDC Admissions—Untouchable Privilege?

[25:10-27:46]

• Gerson details Harvard’s “ALDC” applicants (Alumni, Legacies, Donors, Children of faculty/staff), who comprise about a third of admits and are eight times as likely as non-ALDCs to be admitted.
• Irony: As more minorities become alumni, ending legacy admissions could affect their children now. Still, legacy admissions overwhelmingly benefit white applicants.
• Notable Exchange – Foggatt & Gerson:
  "Maybe these schools should be ALDC blind instead of race blind." [26:24]
  "In terms of the justice issues and the issues of like passing on privilege, I don't think it's that complicated to get rid of legacy admissions." [27:06]

The Slippery Slope of Quotas

[27:46-30:42]

• Statistical consistency in demographics can imply quotas; the Harvard trial showed Asian American admits flatlined for years despite growth in the applicant pool—a point used by plaintiffs to allege a “ceiling.”
• Gerson: balancing is unavoidable, even if it can't be called a quota—it’s about ensuring a range in the class.

Racial Justice vs. Diversity

[30:42-33:17]

• Gerson argues that if the real goal is racial justice—addressing historic and structural disadvantage—then quotas or more creative metrics may make sense (e.g., credit for overcoming under-resourced schools, Texas’s “Top 10% plan”).
• Notable Quote:
  "The racial justice issue is historical and it's generational. It's structural and it's ongoing..." [31:02]

On-Campus Sentiment and Political Context

[33:17-35:32]

• At Harvard: Strong student resistance and broader sense of dismay as the conservative majority reshapes the Court’s approach to long-standing precedents, linking this to recent decisions on guns, abortion, and voting rights.
• Jeannie Suk Gerson:
  "It's kind of like the doom that was experienced in the lead up to Dobbs, the abortion case. I think that everyone understands what is going to happen, and most people are not happy about it." [34:34]

Broader Impacts Beyond College Admissions

[35:32-38:41]

• The legal logic (esp. Title VI and VII) will affect all federally funded entities and likely spill over into employment law, using a “colorblind” reading similar to Gorsuch’s Bostock decision on sex discrimination.
• Foggatt notes the irony that a seemingly liberal employment protections case may lay groundwork for ending affirmative action in admissions.

Notable Quotes & Memorable Moments

• "I still think that it is true that the Supreme Court ultimately will overrule its precedents allowing affirmative action and the use of race and admissions."
  — Jeannie Suk Gerson, [02:52]
• "He’s famous for having called diversity 'racial aesthetics.' That is how he has characterized it in previous opinions..."
  — Jeannie Suk Gerson on Justice Thomas, [11:11]
• "We're never going to have actual full colorblindness, because that's impossible. What we're going to have is more camouflage."
  — Jeannie Suk Gerson, [23:41]
• "Maybe these schools should be ALDC blind instead of race blind."
  — Tyler Foggatt, [26:24]
• "The racial justice issue is historical and it's generational. It's structural and it's ongoing... So quotas may be one way to think about it, but another way would be to say, give extra credit to people who have done well despite being at a very, very under resourced school or considering that much more seriously."
  — Jeannie Suk Gerson, [31:02]
• "It's kind of like the doom that was experienced in the lead up to Dobbs, the abortion case. I think that everyone understands what is going to happen, and most people are not happy about it."
  — Jeannie Suk Gerson, [34:34]
• "We're going to have that flip."
  — Jeannie Suk Gerson, on conservative legal movement gains, [35:12]

Important Timestamps

• [01:25] – Show introduction and case context
• [02:27–05:53] – Gerson explains the main claims under consideration in the cases
• [06:15–09:38] – History and Supreme Court’s approach to affirmative action
• [10:26–11:11] – Discussion of diversity as a legal/educational good
• [13:19–15:35] – Anticipated shift to class-based admissions
• [15:35–23:51] – Legal nuance between race-blind and “whole life experience” admissions; comparison to UC & Michigan
• [25:10–27:46] – Legacy admissions: impacts, evidence, and justice
• [27:46–30:42] – Statistical patterns, quotas, and balancing
• [30:42–33:17] – What racial justice could look like in admissions policy
• [33:17–35:32] – Harvard campus sentiment and conservative Court context
• [35:32–38:41] – Ripple effects in other sectors, especially employment
• [38:41–38:49] – Episode close

Conclusion

This episode offers nuanced analysis of the Supreme Court’s pivotal role in shaping the end, or evolution, of affirmative action in American higher education. Through insights from legal scholar Jeannie Suk Gerson, listeners gain historical context, legal distinctions, and forward-looking questions about what true justice and diversity in education might require in a drastically shifting legal landscape. The episode explores not only the technicalities of admissions law but deeper philosophical and political divides over race, class, and privilege in America.