What Comes After Affirmative Action
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We will hear argument first this morning.
C
In case 21707 students for fair admissions versus the University of North Carolina.
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You're listening to the Political Scene. I'm Tyler Foggatt and I'm a senior editor at the New Yorker.
D
Mr. Park, I've heard the word diversity quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone.
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Last October, the Supreme Court heard two cases against Harvard and UNC about the use of affirmative action at American colleges and universities. The justices are expected to issue a ruling on affirmative action any day now, and the Court's conservative majority appears poised to end the race conscious policy that has shaped college admissions for decades. Jeannie Sue Gerson, a contributing writer at the New Yorker and a professor at Harvard Law School, attended the oral arguments in the fall. We spoke right afterward about what the end of affirmative action would mean for diversity in higher education. Hi Jeannie. Thanks so much for being here.
C
Thanks for having me.
B
So you were at the hearing on Monday, right?
C
Yes, I was there all five hours of the oral argument.
B
And what were the most telling moments like, I feel like, you know, ever since these cases appeared on the docket, people have been saying that the Supreme Court is definitely going to, you know, get rid of affirmative action. And I'm wondering if, you know, you got the sense during the hearing that that's probably true, or whether there were things that happened or questions that were asked that sort of cut against that narrative.
C
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. I think that that is true. I still think that even after hearing the oral arguments, however, there was some more openness than one might have expected. So I think one of the things that has been complicated for the public to parse in this case is the idea that the case involves several different kinds of claims, not just one claim. One is the most extreme claim, which is that affirmative action cases should be overruled and that affirmative action should be ruled unlawful both under the Constitution and under federal statute. That's sort of the blanket, simplest, and most far reaching claim. The second is really the idea that if you just are operating within the affirmative action precedents, taking them as law, that Harvard and UNCLE did not obey those precedents, even taking for granted that those are law, that they deviated from what those precedents actually say. And they did so in Harvard's case by engaging in what is alleged to be racial balancing, which clearly the court has prohibited. You can't use quotas, you can't have numerical targets for certain racial groups. And Harvard is being accused of having engaged in racial balancing, not just using race as one factor among many, many factors in evaluating an individual candidate. So that difference is an important one in terms of the way the Supreme Court has explained what is permissible and not permissible. A lot of people might wonder, I have wondered, is there really a big difference if what you're really going for is diversity and you kind of want there to be a sufficient number of people from underrepresented minorities to alleviate things like isolation or a feeling that you're the only one, which a lot of minorities often feel when they are in these kinds of spaces? And the idea of cross racial understanding, the idea of having a critical mass, all of these things the Supreme Court has recognized as being valid considerations. Lastly, I would say the third kind of claim that I think is the most controversial and has been since the case was filed, is that Harvard intentionally discriminated against Asian Americans. And that claim can kind of stand on its own. Because even in a system without affirmative action, you could have intentional discrimination against any group. And there was all kinds of evidence that was presented about Asian Americans and how they are evaluated by admissions officers. And that evidence was explored also in the Supreme Court hearing on Monday.
B
I see. So I didn't realize that. I guess that there was a chance that Harvard and UNC could be in the wrong, but the court wouldn't actually use this as an opportunity to answer like a constitutional question or over real affirmative action. Maybe it's worth talking just more generally about affirmative action and how it's changed over time in the way that it's been practiced by schools and what the court has said about it.
C
Yeah. The first significant case came in 1978, a case involving the University of California. And the Supreme Court held in that case that you couldn't have a quota. That was one thing that was just clearly ruled out in Bakke, which is the name of the case involving the University of California. And.
B
And why. Why is that? I mean, because quotas just kind of open the door for obvious discrimination or.
C
Yes, I think there are several reasons. One is that I think in American culture, for a very long time, we really have had a sense that the individual is the unit that is most crucial. And if you were talking about a quota like a number, a target, then people. People start to feel like they're not being evaluated as individuals. Certainly in other countries, including in Europe, the taboo about quotas doesn't exist in that strict a way. And so you do see racial quotas and quotas for women and representation on, say, things like corporate boards. So I think that that's one thing. The other thing is that in the United States, we know that the category of race is the one that has been the most poisonous to our society in terms of people being discriminated against because of their race and having decisions by the government being made to subordinate them because of their race. And so there is this idea in our constitutional law that anytime you consider race for whatever purpose, you've got to be really careful about it and impose what is called strict scrutiny. Strict scrutiny means that if you're going to use race, there has to be a compelling state interest, and that the way that the government is using it has to be narrowly tailored to accomplish that compelling state interest. So that makes it really hard. Most laws that categorize people based on race are going to fail that test. It just goes along with the idea that whether you're going to use race for good or for ill Whether you're trying to help a group or to hurt a group, you're subjecting the law that categorizes people based on race in this very, very strict way to make sure that the government really, really needs to do it. So that's why I think the use of quotas was deemed to be unconstitutional. However, the court in Bakke in 1978 held, if you just use race as one consideration among many, then that would be constitutional, that would be permissible, because that's not making it like a predominant, determinative, overwhelming factor. A person is not going to be judged only by their race in a system like that. So the Court found that that was okay, that that constituted narrow tailoring. And the compelling interest that the government would have, like a state would have for doing that, was deemed to be diversity.
B
So not righting historical wrongs or reparations, it's diversity, increasing diversity. Because that's supposed to enhance education for everyone, right?
C
That's right. That it would enhance education for every student who was involved. And there was some idea that it would feed into a multirac democracy in which people of all groups can feel equal and represented. And that was considered to be the compelling state interest. And I think that that case, Bakke. It really set us on the course that in some ways led to the troubles we're having right now about affirmative action. Because by denying that affirmative action could be used for, say, compensating for historical wrongs or overcoming the historical subjugation of African Americans who were formerly enslaved, that all of those considerations really faded into.
B
The background, leading to Justice Thomas asking, what is diversity?
D
I didn't go to racially diverse schools, but there were educational benefits. And I'd like you to tell me expressly what. When a parent sends a kid to college, they don't necessarily send them there to have fun or feel good or anything like that. They send them there to learn physics or chemistry or whatever they're studying. So tell me what the educational benefits are.
B
I mean, if you base everything on diversity, and then it doesn't seem like that's necessarily a concept that everyone agrees with, it does seem like that leaves affirmative action pretty vulnerable.
C
I agree with that, and I think that with Justice Thomas. He's famous for having called diversity racial aesthetics. That is how he has characterized it in previous opinions. Almost like you're trying to just create some kind of rainbow of races for an aesthetic purpose. Because he doesn't think that the educational diversity rationale is real. And I think that the real reason for affirmative action, the more compelling reason, in fact, is not diversity, but the fact that underrepresented groups are underrepresented for a reason. And that reason is the historical discrimination, the structural discrimination that continues and the accumulation of generations of oppression. Those are the reasons that affirmative action is needed in the first place. But we're just in a situation where we can't even say that lawyers can't say that in court because it's kind of ruled out as an interest that the state is supposed to be able to pursue.
B
Yeah, it's a really interesting point because if you sort of base the whole thing around, you know, increasing diversity, then I feel like it opens up all these questions that the conservative justices were bringing up on Monday. But, like, why not religious diversity? I mean, even within racial diversity? Like, you know, I was talking to another editor at the magazine earlier. He's black, I'm black, we both went to Yale and we were talking about how, like, it seemed like all the other black people at Yale besides us were like, like Nigerian princes or people who are basically incredibly wealthy, who didn't really have, like, shared experiences to us at all. And so if the idea is that you're trying to prevent people from feeling isolated, that even doing it by, like, geographic region or doing it by, you know, socioeconomic class, income, that kind of thing might be actually a good, better way of going about, you know, this process of trying to create a diverse student body. And is that something that's been brought up, the idea that maybe this should be done based on class, or that the sort of like, race based affirmative action that we have right now isn't necessarily working, that there are still other ways that universities can go about making sure that these underrepresented groups are represented at their schools?
C
Well, I think the thing that you're saying is, in fact, what is going to have to happen after affirmative action is ruled to be unlawful at the end of this term? That socioeconomic considerations will move to the forefront and possibly become way more important than it has been in the past. The interesting thing in this case is that Harvard has claimed that if they use socioeconomic status, that won't be enough to bring about the kind of racial diversity that they're trying for. It's possible that that is true. It's possible that it's also a litigation position. It's hard to take at face value the claims that are being made in this case because according to Harvard, in this litigation, more than half of African American students who are admitted would not be if race weren't considered.
B
That's a surprisingly large number.
C
It is. But I would be very surprised if what we see in the first year that Harvard has to operate without race conscious affirmative action, that we're going to actually see a drop by half. And so that either means that they had to come up with, and did succeed in coming up with other means, like race neutral measures that did work to produce diversity, or that they were exaggerating the impact that the consideration of race has on the admission of black applicants. To me, this is a question mark, but the one thing I know is that it's unimaginable that a school like Harvard is going to sit back and say, oh, well, we can no longer consider race. And so we have to just accept that and accept that we're not going to have racial diversity. That's not going to happen. One thing that was very interesting from the oral argument on Monday is that I think that the justices who are opponents of affirmative action still seem to make pretty clear that they thought that using race neutral means to accomplish racial diversity, that that itself would be fine.
B
Yeah, I was going to ask you about the difference between, like, race blind admissions and race neutral admissions. I guess it might depend on the outcome of these cases, but, you know, the idea even of these universities using, you know, offering some kind of like, supplemental essay on an application in which a candidate can, you know, elaborate on their background and maybe their race, you know, talk about why your background is important to you, or something like that, that basically allows them to see who it is that's applying. But there are quite a few schools that have gotten rid of affirmative action, the UC schools in California. And my, my understanding is that basically as soon as they did that, the number of Asian American students who are being admitted to these schools skyrocketed, essentially. And so I, I was wondering if you could talk a little bit about if affirmative action is overturned and Harvard and UNC and these other schools turn to like a race neutral process, like whether that will make a difference for Asian American students, whether we should expect to see numbers like what we've seen at UC and you know, at the University of Michigan, which I believe saw something similar after it got rid of affirmative action, or whether it's actually far more complicated than that.
C
I think it's somewhat complicated because over the UC system as a whole, what you see is not the actual precipitous drop in African American admitted students, nor do you see kind of a skyrocketing of Asian students over the entire UC system. But you do see exactly that effect in the most selective of the UC.
B
Schools, which is Berkeley.
C
Exactly. And so Harvard obviously is a very selective school. And so you fear. I would fear, and Harvard fears that you're going to see this very drastic plummeting of African American admitted students. But Harvard also has a 40% admissions committee and a lot of resources. They're not doing paint by numbers. They're not doing formulas that are pretty simple to apply. I would expect that they're going to put in a lot of resources to try to formulate a way to admit students that allows them to retain the kinds of standards they have on things like academics and extracurriculars and personal ratings, which is another very controversial category that came to light during this litigation. They will be able to do all that and also to increase diversity that they can't otherwise get by deciding that someone gets a plus for their racial identity. I think one of the things that became really interesting in the oral argument was this exploration. I think Justice Jackson started it off and then everyone sort of followed up on it. This distinction between considering somebody's race as race. You had a plus for your race.
B
Versus like, you faced racism your whole life and now you're an entirely different person. And it had an effect on your personality. And you wrote this essay and.
C
Yeah, right. Or you write an essay and even if it's not about the specific topic of overcoming discrimination, that it might be an essay that deeply is embedded in the fact of your life, which is completely inextricable from the community and the background that you have.
B
I would imagine that, like, 95% of common app essays, you know, you could probably guess at someone's background after reading, you know, their personal statement.
C
Right. So I think some people who've worried about getting rid of affirmative action have wondered if literally what it would mean is that you would have to be disallowed from talking about race in your application, even in your essay, and that everybody would have to make it race blind in terms of the admissions officers even knowing the person's race, and that all teacher recommendations and things like that would have to be kind of redacted to get rid of race. I think that it became very clear in the oral argument on Monday that nobody thinks that that is what getting rid of affirmative action would mean, which I thought was very clarifying. The lawyers made extremely clear that to them there's a big difference between you check a box indicating your race, and then you get a plus because you check that box versus you get credit for describing your Life experience, which may include the experience of race or of ethnicity or national origin or your gender or all kinds of things. And that. That is something you can get credit for because you are doing it in a particularly thoughtful way or an insightful way, or shows resilience or grit or things like that. Right. And if the court goes along with that vision while getting rid of affirmative action based on race, then one could wonder, as some of the justices did, I think Elena Kagan called it slicing the baloney pretty thin. If that's the case, then Harvard need not really worry so much about the plummeting of African American admitted students. And there was something just really funny about the oral argument in that. On the one hand, there was a sky is falling type of story that everything will change and it'll be catastrophic if we get rid of affirmative action. On the other hand, there was the possibility that not very much would change because the difference between considering someone's race versus considering someone's whole story, which may include race, is not really great.
B
Maybe what we're seeing is like, yeah, the baloney getting sliced incredibly thin, you know, over the course of decades. Because it seems like we did go from, you know, there was a case in the early 2000s with the university of Michigan where I think the way that the they were using affirmative action was basically that they did give, like, extra points to people who, you know, were coming from, like, minority backgrounds. And I think that was illegal. And so they then moved toward a more, like, holistic admissions process. But, like, it just sounds like what these schools might be doing going forward in terms of understanding more about someone's racial background through their essay is like an even more holistic version of the holistic admissions process.
C
I think that's a really good way to put it. It's really interesting because the case you're talking about is Gratz vs. Bollinger. In 2003, it was the companion case, Grutter vs. Bollinger, which is the case that is on the chopping block right now. In Gratz, what the court said was, you cannot automatically award extra points to applicants who are underrepresented racial minorities, which is what University of Michigan was doing at the time. But, of course, you could still use race as one factor among many in a holistic review. That was the distinction. Now, there were people at that time who thought, what's the difference? Is this really a meaningful difference? And I actually agreed with Justice Ruth Bader Ginsburg, who, who basically dissented in Gratz. She thought that colleges should be able to award extra points to underrepresented minorities. And she said that essentially the court is telling universities not to be candid in what they're doing and that they are being encouraged to what she called resorting to camouflage in order to accomplish the goals. And there's a lot of truth to that. I think that that means that if you want your race to be considered, then you would be writing about it in your essays or you would be having people who know you talk about your experiences as an underrepresented minority. And right now we're about to move from race based affirmative action, where race is used as one factor among many, to one where you can't do that, but you can still write about your experience being a racial minority. And so it's yet another further slice of the baloney. And we're never going to have actual full colorblindness, because that's impossible. What we're going to have is more camouflage.
B
We'll have more with the New Yorker's Jeannie Sue Gerson in just a moment.
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B
So when you talk about automatically adding points to applications, I sort of immediately jump to legacy admissions. And so I'm wondering if you can talk about the difference between prioritizing one racial group over another, which seems to be illegal, versus prioritizing the kids of alums. Like, to what extent do universities just kind of get to decide who it is that they let in right so.
C
Talk about just plain adding extra points. That is pretty much what's happening with legacies. And again, it's such a non transparent process, yet we are able to know about it because of the trial. All this evidence came out at trial, otherwise we just would never know this.
B
Every school's worst nightmare, right?
C
Exactly, exactly. So we know about Harvard, that they have this category called ALDCs. Alumni, children of alumni, athletes, athletic recruits, and then children of faculty and staff and the children of major donors. Those are a category called ALDCs and they comprise a third of the Harvard admitted students. And they're eight times more likely than a non ALDC to get admitted to Harvard. Wow.
B
Maybe these schools should be ALDC blind instead of race blind.
C
Right. So interestingly, that is what sffa, which is opposing affirmative action, that is what they're saying. They're saying that a really good race neutral alternative is to get rid of ALDCs, because right now it's predominantly white. That group of students now some minorities, I've heard it said, you know, Asians and African Americans who went to these schools, I've heard them say just now, when my kid or you know, my grandkids have a chance of actually being legacies, like this is when you're going to get rid of the legacy preference. And so there is some of that that we're reaching a point in history where maybe significant numbers of legacies will be people of color and underrepresented minorities. And the evidence in the Harvard trial did show that an Asian applicant did quite well if they were an aldc. They just didn't do well if they were not. So it's more complicated than meets the eye in some ways. But 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.
B
I want to ask you one more question about quotas, mostly just because I'm almost like morbidly curious about this topic. I feel like if you look at the admissions rates for different ethnicities and different groups, like legacies over time, I mean, at least my understanding is that these groups are somewhat consistent. And is that just because the makeup of their applicant pool is consistent, and so it makes sense that these numbers would remain the same over the years. Or is this one of the things that's being brought up in the current Supreme Court case as like evidence maybe that these schools are using quotas somehow?
C
Yeah, it can, I think cut both ways because for example, Asian American numbers, that's the One that's been focused on a lot in the Harvard trial for a long, long time. You saw there was a rise, and then it stabilized, and then it stayed pretty similar, like somewhere in the. In the high teens in terms of percentage. And it stayed very similar, even though, say, the population of Asians increased in the country, and also the Asian applicant pool increased, and so more Asians were applying, and yet the number of accepted Asians were remaining similar for a number of years. So that was used by SSFA to try to claim that that was sign of a quota, like a ceiling on the number of Asian applicants. But since then, since this lawsuit was filed, Harvard has increased its share of Asian admitted students to 27.9%. It's increased quite a lot in even the recent years. Is it because they were sued and so they had to look more carefully at things like implicit bias or things like that, and that increased the numbers? That's altogether possible. Or it could be other factors, I think it's very difficult to parse out. But, yeah, the whole notion that quotas are completely forbidden and that they should be anathema to this process. It's really hard to imagine a system where you don't pay attention to numbers at all. If what you are going for is diversity. A class that's 100% white is not diverse, and a class that is diverse is going to have some share of students from each group, and there's going to be some delicate balancing. Again, balancing is a word you're not supposed to use. It's a concept that's not supposed to be okay. But are these schools engaging in some kind of balancing? Of course they are. Whether it's about race or about humanities versus science majors or people who are interested in music versus architecture. And it's not an exact science how to manage these numbers. But there is some idea of numbers even approaching quotas. You just can't call it that.
B
If we were shooting for racial justice instead of just diversity, do you think that quotas actually would be the way of going about it? Or, like, what would be the right system for that?
C
I think if we were trying to reach racial justice, we certainly should consider quotas to be among the things that we would want to try. The racial justice issue is historical and it's generational. It's structural and it's ongoing, and it's about even in the lifetime of the specific student, regardless of what their ancestry may be, different kinds of advantages and disadvantages and the resourcing of the schools that people attend and the Neighborhoods in which they reside. It's all of those things together. And 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. I'm sure that it is already part of the process to think, oh, did you go to Andover or Exeter versus a public school that is not as strong in terms of the instruction that you might have received. But in to deal with the justice issues, you have to look at it in every which way. The generational issue, the historical issue, the current discrimination and the current effects of structural disadvantage, as well as the wealth gap between certain groups. So I think it's a complicated process. We could do quotas. We could think about different kinds of point values given to neighborhoods. Right. If you come from the, you know, 90210 or whatever or 02138, which is my zip code, you might be in a different kind of bucket. I think there are many ways to do it. In Texas, they had a 10% plan. Basically, they admitted automatically the top 10% of every public school. And because there was residential segregation, de facto residential segregation all over the state of Texas, the top 10% of many of those schools were going to be students from an underrepresented minority group. So that then meant that the class that was admitted would have a lot of racial diversity and it's not considered to be unconstitutional or unlawful. And so there are many things that possibly we haven't even thought of yet that some ingenuity will have to go into coming up with.
B
What is the current feeling at Harvard right now? You know, like, as the Supreme Court is assessing its admissions policy, I mean, are students and faculty sort of defensive of, like the current way that the school is going about admitting people? Are there a lot of people internally who, you know, are sort of glad that this is being looked at? Like, are there protests? Like, what's the feeling on campus? Is this all happening?
C
Well, I know that Harvard students, hundreds of them, went to D.C. to protest at the Supreme Court. So there certainly is a lot of resistance among the student body to the idea of overruling affirmative action precedents. I teach at the law school. I think that for a lot of people, this is one of the entire conservative transformation of the Supreme Court that we are now seeing. We saw it with abortion, the expanding of gun rights, getting rid of affirmative action, making it harder to engage in race conscious measures to protect voting rights. It's just all of a piece. 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.
B
Yeah, this very much tracks with the narrative of the. The Court becoming more conservative and ruling in a certain way, which is why so many people seem pessimistic about the ruling here.
C
I think there are a few issues that the conservative legal movement over the past decades, when either liberals were in the majority, or it was liberals plus Justice Kennedy making for a very close shave on some of these issues. And the issues would come out on the liberal side. I think conservatives who have been kind of enduring that for all those decades now, this is their chance to say those cases were wrong. It's been a long haul for legal conservatives, but now their justices are in power, and we're going to have that flip.
B
And what are the potential ripple effects of the Court overruling affirmative action here? I mean, I assume that this will also open up all sorts of cases in terms of, you know, with employers and just other sort of realms of society that use some form of affirmative action.
C
Yes, I think it will. I think that the federal statute that's at issue in this case is Title vi, which prohibits discrimination on the ground of race, ethnicity, or national origin engaged in any program or activity that receives federal funding. That category involves virtually every college or university, because federal funding is such a big part of how universities and colleges operate. That covers many, many situations. If you're an entity that receives federal funding, you've got to be looking at this case and thinking, are we going to have to do things differently? The answer is, yes, you're going to have to do things differently. And then right adjacent to that is Title vii, which is about employment discrimination. And it has very similar language about discrimination on the basis of various protected categories which involve things like race and sex. So we already had a couple years ago, the Bostock case, which was about discrimination on the basis of sex as applied to transgender and gay individuals in employment. And I think in that case, it became really clear that the Court's majority, and it was authored by Justice Gorsuch, he thought that if you have to consider somebody's sex at all in order to make a determination about them, that would be a violation of the statute. So, for example, if you're discriminating against a transgender person, it must be because you're thinking, oh, they're not fitting my expectation of what a man is like or what a woman is like, right, because they're dressing in clothes or engaging in conduct that I don't associate with this sex. That was his rationale for finding that transgender individuals and. And gay individuals are protected by Title vii. If you apply that same logic, essentially, I think that affirmative action would be pretty difficult to justify because you obviously have to consider somebody's race in order to decide whether to make it important to a decision to hire or to promote such a person. So if the idea is you really can't consider their race as race, it would certainly impact employment decisions.
B
That's so interesting, because I thought that was, like, such a surprise liberal move from Gorsuch, but I guess he was just laying the groundwork for affirmative action to be gutted.
C
That's certainly what I thought about it when I first read it. And I just thought, mmm, I see what he's doing.
B
Oh, gosh, you knew at the time.
C
I did.
B
Well, thank you so much.
C
Thank you so much.
B
Jeannie Sue Gerson is a contributing writer at the New Yorker and a professor at Harvard Law School. Thank you for listening to the political scene from the New Yorker. The show is produced by Michelle Moses with editing assistance from Catherine Winter. Our executive producer is Steven Valentino. Allison Layton Brown composed our theme music. Thank you so much for listening. Have a great Fourth of July, and we'll see you next Wednesday.
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Episode: What Comes After Affirmative Action
Date: June 28, 2023
Host: Tyler Foggatt
Guest: Jeannie Suk Gerson (Harvard Law School Professor, New Yorker writer)
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.
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[33:17-35:32]
[35:32-38:41]
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.