College Admissions in a Post-Affirmative Action America With Jeannie Suk Gersen
Oct 12, 2023
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Harvard Law School professor Jeannie Suk Gersen discusses college admissions in a post-affirmative action world. Topics include the Supreme Court decision on affirmative action, the impact on diversity in college admissions, the Thomas Jefferson case, text messages as evidence of racial discrimination, Asian American perspectives, and the interpretation of statutes and utilization of equal opportunity offices.
The Supreme Court's decision on affirmative action did not specifically address discrimination against Asian Americans, but focused on the elimination of the policy.
Chief Justice Roberts' opinion opens up a discussion about the difference between being race blind and race neutral, potentially leading to a more meaningful approach to diversity.
The complexity of balancing diversity and avoiding unintended consequences is highlighted by the Thomas Jefferson case, which raises questions about intentional discrimination.
Deep dives
Supreme Court Decision on Affirmative Action
The Supreme Court made a six-to-three decision to strike down affirmative action, which was not surprising but still notable. The focus of the decision was not on discrimination against Asian Americans, as some anticipated. Justices Thomas and Gorsuch had more to say about the issue than Chief Justice Roberts. The decision primarily centered on the elimination of affirmative action and did not specifically address discrimination against Asian Americans.
Interpreting Chief Justice Roberts' Opinion
Chief Justice Roberts' opinion on affirmative action was minimalistic, only stating what was necessary. However, his statement that universities should not prohibit applicants from discussing how race affected their lives opens up a discussion about whether being race blind is the same as being race neutral. This question could lead to a reconsideration of societal discrimination and the legacy of slavery in admissions policies, potentially allowing for a more meaningful approach to diversity.
The Zero-Sum Nature of Admissions
Admissions, whether in schools or employment, involve scarce resources and a competitive process. Seeking diversity often means reducing the population of one racial or ethnic group to make room for others. The zero-sum nature of admissions raises questions about the line between seeking diversity and discrimination. It's a complicated issue that will likely result in debates, litigation, and arguments about the definition and intent of discrimination.
Challenges to Affirmative Action in K-12 Education
The Thomas Jefferson case exemplifies the complexity of addressing racial diversity in schools. Although the admissions policy change aimed for greater racial diversity, it resulted in a drop in Asian American representation. The legal challenge argues that the change is intentional discrimination. However, the court's interpretation has not found evidence of intent. This case highlights the challenge of balancing diversity while avoiding unintended consequences and potential lawsuits.
Legal Challenges in the Private Sector
The elimination of race-conscious policies, such as affirmative action, has left employers and institutions uncertain about their diversity practices. Lawsuits are emerging, questioning whether preferences for underrepresented minorities, such as contracting or fellowships, violate civil rights laws. The absence of clear Supreme Court decisions supporting race-conscious practices creates a field open for litigation. Courts will need to determine the interpretation and intent of civil rights laws in the context of achieving diversity.
The Supreme Court effectively eliminated affirmative action in higher education this June with their rulings in SFFA v. Harvard and SFFA v. UNC. Harvard Law School professor Jeannie Suk Gersen sits down with Ravi to discuss college admissions in a post-affirmative action world and how colleges and universities will work to ensure they continue to enroll diverse student bodies.
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