The End Of Affirmative Action
By Sarah Steele. Professor Jeannie Suk Gersen offers her insight into the Supreme Court’s decision in SFFA v. Harvard.
On Friday, December 1st, Harvard’s Program on Constitutional Government hosted a lecture entitled “The End of Affirmative Action” with Jeannie Suk Gersen, Harvard Law School’s John H. Watson Junior Professor of Law. After a warm introduction by recently retired Professor Harvey Mansfield, Gersen’s lecture evaluated the history of race-focused law, the origins of affirmative action in universities, and the most recent Supreme Court strikedown in Students for Fair Admissions (SFFA) v. Harvard. Following her remarks, attendees peppered her with questions for an hour.

Gersen began by harkening back to Justice Harlan’s famous 1896 “colorblind” dissent in Plessy v. Ferguson. In an early plea for the desegregation of America, the justice wrote, “There is no caste here. Our constitution is color-blind.” Moving to the early 20th century, Gersen marked the beginnings of the “social engineering of the American elite” with Harvard’s first attempt to revise its admissions process. Amid concerns about the “overwhelming” and “dangerous” amount of Jewish students, Harvard’s revamp utilized the same language that is used today to limit Asian students on campus. Admissions officers avoided legal scrutiny by labeling their new approach “holistic,” and adding new measures like “character,” “personality,” and “geographical diversity.” Legally speaking, even as Harvard successfully lowered the percentage of Jewish students from 15% to 10%, no explicit racial categorization took place.
By 1969, the Crimson reported that while there was “no correlation” between admission to Harvard and SAT scores, there was a stunningly high 90% correlation between admission and “personal rating” scores (like “personality” or “character”). By 1978, the Supreme Court ruled in Bakke that it was lawful to use race to foster “diversity” on campus. Professor Gersen clarified that the decision included a few caveats: the university’s paramount interest should be “academic freedom,” the pursuit of diversity could not be “remedial” in purpose, and most famously, quotas could not be implemented.
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Gersen then pointed out that Bakke’s “impossible” directives resulted in the “word salad” that characterized the stated admission policies of Harvard and other elite universities. Bakke’s only legally viable directive was the vague pursuit of “diversity.” To make matters worse, the Court’s decision in Grutter v. Bollinger in 2003 limited affirmative action to “underrepresented minorities,” which effectively excluded Asian Americans and Jews from counting toward the university’s supposedly non-quota-based and non-remedial racial rainbow.
In SFFA, the Supreme Court reversed itself and declared that “diversity” is no longer a constitutionally sound goal—although it may still be a legitimate interest. Harvard’s initial response was dismissive, citing Justice Roberts’ opinion as a potential loophole to “keep doing what we’re doing” and warning that only ⅔ of Hispanics and ½ of black students would still be on campus if affirmative action were renounced. Gersen pointed out that Harvard’s legal counsel will ensure that the school’s admissions policies are reformed to adhere to the law.
Gersen predicted that in upcoming years, an updated admissions system would most likely produce undergraduate classes that are “disproportionately white and Asian.” The rejection of “diversity” as a compelling governmental interest may also extend to hiring practices, nonprofits that issue special opportunities to racial minorities, and the governance of corporate boards.
The afternoon ended on a productive note—during the Q&A segment of the event, Mansfield and Gersen disagreed on the question of how best to foster ideological diversity. For her part, Gersen champions viewpoint diversity as the co-president of Harvard’s recently formed Council on Academic Freedom. Interestingly, she asserted that “lived experience” is an important predictor of viewpoint diversity, while Mansfield countered that “[only] thought” should be considered. We submit this question to our readers for your thoughts in the comments below!
You can find more of Gersen’s stellar academic writing and expertise on the SFFA case in her regular contributions to the New Yorker.
The timeline is accurate, but the conclusion reached about the impact on admissions is demonstrably false (see California post-prop 209).
It's unfortunate that the article did not mention the recent FIRE ranking, where Harvard "earned" the lowest ever free speech ranking in their 2023 study.
Just as Robin DiAngelo redefined "racist" as the dominant group, i.e., white, diversity has evolved from being synonymous with variety, to having an alternate version added, which focuses on "a practice...of including people from a range of social and ethnic backgrounds". This changed the character of diversity from being a condition to being a process. I believe people support the condition as consistent with a university's core mission of a search for truth, but since the process necessarily involves coercion, libertarians and conservatives will always find it problematic.
Commendable work.