Affirmative Action Falls: Inside the Protests at Harvard and Washington D.C.

Frank S. Zhou: It feels like any other summer morning in Washington D.C. It’s hot, it’s sticky, we’re with one of our reporters, Cam E. Kettles, outside of the Supreme Court.

Cam E. Kettles:  Okay. The opinion just came out. Woah.

FSZ: This isn’t just any opinion, it’s a historic landmark ruling that changes the way colleges choose who gets in. It’s expected to change how colleges can think about race and diversity — to decrease the number of Black, Latinx and Native American students at universities across the country.

Just hours after the decision was released, shouting matches would break out in front of the nation’s capital.

A sea of signs and loudspeakers, opponents yelling straight into each other’s ears. Supporters rejoiced, opponents mourned. Some were driven to tears.

For more than 40 years, affirmative action has been the law of the land. It's been legal in most of the country. Most top universities have practiced it. Opponents of affirmative action argue that it effectively discriminates against Asian and white applicants by lowering their chances of admission. Universities argue it's critical to create diverse student bodies, to include students from backgrounds that universities have historically failed to include. To make university student bodies look more like America.

But now, a seismic shift.

CEK: The court holds that Harvard and UNC’s admission programs violate the equal protection clause of the 14th Amendment — wow, my hand is shaking — as it applies to the Harvard case.

Ah, my hand is shaking. Why is my hand shaking?

FSZ: The court ruled that the practice was unconstitutional, citing that the 14th Amendment guarantees all racial groups equal protection under the law. Colleges can no longer use race-based preferences and admissions to increase diversity.

Today, we’re covering the fall of affirmative action. The day the decision dropped, in DC and at Harvard, and how the dust settled in the hours and days following. Even if we don't know exactly how, the decision will have ripples across the country, across higher education.

As journalists and students at Harvard, we witnessed what happened on our campus in the days after the decision dropped. Why our classmates responded the way they did. And what the protests — the fights, the fears — were really about.

When the decision dropped, we sent four reporters to the heart of the protests in DC. More than a dozen others across four continents sprang into action to report on this landmark decision.

In the coming months, we'll release a multi-part podcast series peeling back the layers of what exactly happened. What this means for students applying. And how a group of conservative anti-affirmative action activists defeated one of the most prestigious universities in the world.

We’ll take you into the Supreme Court, through the halls of Harvard, to the students impacted by it all.

But now, from Washington D.C. and Harvard, the fall of affirmative action. Here’s how it went down.

From The Harvard Crimson, I’m Frank Zhou. This is Newstalk.

———

CEK: It’s kind of weird that just happened.

FSZ: When the decision drops, Cam is right in front of the Supreme Court steps. What did it look like?

CEK: So very, very, very few people were there. It was shockingly quiet, I would say, for a while.

FSZ: Cam says it’s like this for about an hour. But then, around 11 am:

CEK: There is a group of supporters for SFFA...

FSZ: That’s Students for Fair Admissions, the anti-affirmative action group that filed the lawsuit against Harvard. The group that the court had just ruled in favor of.

CEK: ... They started setting up signs...

FSZ: People start arriving on the scene, anti-affirmative action activists setting up camp.

CEK: ... And one of their leaders was talking to press. It became pretty chaotic, I think after that point.

Yukong "Mike" Zhao: It’s a historical win for Asian and all Americans.

FSZ: Here’s the guy talking to the press. He’s Yukong Mike Zhao, the founding president of Asian American Coalition for Education, an anti-affirmative action group that filed a civil rights complaint against Harvard in May 2015.

YMZ: It also help America advance into colorblind society. Realize what Dr. Martin, Martin Luther King dreamed 60 years ago. He famously said, you know, I want all children not to be judged by color of their skin, but by content of their character. Supreme Court Court ruling really realize this dream. We want all children be judged by content of their character…

FSZ: In all of this, there was one group missing.

CEK: The students from Harvard that were planning on being at the court weren’t there.

FSZ: Because, on the morning of the decision drop, organizers announced that air quality in DC was too poor for students to come out.

CEK: So it was very, very, very quiet.

FSZ: For a decision where Harvard was the one being sued, there were almost no... Harvard students... on the scene.

The students do eventually come into the story. Two hours after the decision dropped, a few Harvard students show up. One of them is Nahla Owens, a rising junior, who leads the civics education program at Harvard’s Institute of Politics. Cam got to talk to her.

CEK: Why are you here today?

Nahla C. Owens: Just because I couldn’t sit at home when such a monumental decision had been made. Like stand aside and let SFFA speak for people who are supposed to be students applying and take that narrative.

FSZ: She explains that, after the official protest was canceled, the students were told not to show up. But then, 30 minutes after the decision dropped, the students decided to assemble an impromptu, completely student-run protest at the Supreme Court at 1 pm.

They were going off script, planning on the fly.

NCO: It’s kind of messy organizing it just because it's been so hard, uh, getting people with the miscommunications, but hoping things will ramp back up at around 1 pm. Yeah.

CEK: Okay. So when you first heard about the decision, what was your initial reaction?

NCO: My heart was sinking, honestly, especially knowing that my grandma had been working hard to desegregate her school district — and to think that the progress that she’d worked for and her generation had worked for is now being rolled back, is just... It’s like a slap in the face, honestly.

FSZ: That’s how Nahla remembers the protests that day. One of our reporters, Michelle N. Amponsah, was also in the crowd. She got to talk to a Chinese parent against affirmative action at the protests, Yu Xiangxie.

Michelle N. Amponsah: You’re a supporter of Students for Fair Admissions?

Yu Xiangxie: Definitely.

FSZ: He explains that he supports diversity, but he says that affirmative action uses skin color to create a campus that looks diverse rather than a campus with an actually diverse set of experiences.

YXX: Actually, I support diversity. However, why I against this? Because we should find the correct way.  I come from a small village from China. My son? he grow up in United States. My son, he’s much more different from the people from China, from my city. It is the environment that you grow up that makes the diversity. But the majority of your concern is focused on the color, the skin color.

That’s something I think is wrong.

FSZ: But that’s not the end. Not at all.

[protesters clash]

FSZ: Remember the students trying to organize an impromptu protest at 1 pm? Well, something throws a wrench in their plans.

——

FSZ: Around noon, police discovered something off in front of the Supreme Court.

CEK: It was because of a suspicious package.

FSZ: The police eventually declared the package safe, but this is before they knew for sure.

So they started clearing protesters away, pushing them into a street corner. Nahla told us later how it all felt for her, as a pro-affirmative action protester in the crowd, being pushed away from the Supreme Court by police as students were arriving and trying to assemble.

NCO: There was just confusion, pandemonium, and chaos.

I honestly felt like I couldn’t tell up from down left from right. I didn’t know if the person standing next to me was celebrating the decision or there to rally with me. I genuinely was just... lost in a sea of people.

FSZ: She remembers meeting up with one of her fellow organizers, Kashish Bastola, a rising sophomore. And then, as she remembers it:

NCO: Things did take a sharp turn.

FSZ: She says that anti-affirmative action protesters began gathering around her and Kashish. One of them starts yelling at them for supporting affirmative action. Nahla remembers red signs for anti-affirmative action protesters, blue and purple ones for pro-affirmative action protesters. And Kashish, she says, starts arguing back.

[protestors clash]

FSZ: Michelle, our reporter, got to talk to Kashish — who’s South Asian — about this confrontation.

MNA: He was asking her: “Are you proud of yourself?” “Do you really believe that our community agrees with you?” And she said that she doesn’t even identify as South Asian and that she thinks that, you know, our country has been overridden by race.

It just made him really frustrated.

FSZ: Nahla says people and cameras started gathering around.

NCO: And at that point, Kashish turned around to me, and he said, “I don't think I can do this anymore, I think I'm gonna cry.”

And looking into his face, and just seeing the hurt and the pain that the decision had caused him, but then also the people who continued to believe that Black and brown students didn’t belong on our campus, it just made it so real for me, and I think it made it real for him. So he started crying, I started crying, I went in for a hug, and we just... stayed there for a moment.

——

FSZ: This also gets at another fundamental tension among the protesters on both sides.

MNA: The people affiliated with Defend Diversity and Coalition for a Diverse Harvard —

FSZ: pro-affirmative action protesters,

MNA: — were overwhelmingly, like, rising sophomores and rising juniors, they there were young students.

CEK: Many of them said directly that they had benefited from affirmative action, most were in college, getting the benefits of higher education.

MNA: And then you look over, just a few feet away. And the supporters of the Supreme Court’s decision were parents of students,

CEK: angry about the fact that they were essentially outsiders. Angry either that their child did not get in or angry that they were sort of set out of the system entirely.

MNA: And they believe that it’s because of race-conscious admissions. A lot of them were like immigrant parents.

And it looked like it was between Gen X and Gen Z.

FSZ: The protests weren’t really about the spectrum of nuanced ideas about affirmative action.

It was more about the clean splits, Gen Z versus Gen X, red signs versus blue signs. People who are in college versus people worried if they’ll ever get a spot.

It was easy to take one look at the other side and only see enemies.

Protesters: What do we do? Stand up, fight back! What do we do? Stand up, fight back!

FSZ: Police eventually push all the protesters across the street. Everyone’s pushed into one crowd. So all these protesters who think they share no common ground with the other side are now literally forced to share common ground. So shouting matches break out.

[Protestors clash]

MNA: Students for Fair Admissions supporters were very loud, it’s kind of a gloating thing.

Protestors: We win! We win!

MNA: People were in each other's faces, with megaphones and signs and everything.

Protestors [into megaphone]: What has the USA ever given you? What has the USA ever given you?

FSZ: They’re yelling, blocking each other with signs. This is one of the pro-affirmative action activists with a microphone, with anti-affirmative action supporters chanting “U-S-A” in the background.

[protestors clash]

FSZ: Cam was in another part of the crowd, but she heard the commotion.

CEK: There's a fight happening between — behind — the protests.

What's happening right now is there’s a press conference being held by those that support the decision to overturn affirmative action, but behind them is what appears to be a fight between those that are supporting affirmative action and those that support the decision to overturn affirmative action.

[protesters clash]

Protestor 1: Stop with the bullsh--.

Protestor 2: Oh my gosh.

Protestor 1: Stop with the bullsh--!

Protestor 2: [unintelligible] Are you kidding me? The most racist organization out there?

Protestor 1: Stop with the bullsh--!

Protestor 2: You're bullsh--!

Protestor 1: Stop with the bullsh--. Stop with the —

Protestor 2: [unintelligible] What are you talking about?

Protestor 1: Stop with the bullsh--! Stop with the bullsh--!

Protestor 2: [unintelligible]

Protestor 1: Okay. Hear you! Hear you! Hear you! Hear you! Clarence Thomas Black.

Protestor 2: No — not Clarence Thomas.

Protestor 1: Clarence Thomas Black. Clarence Thomas Black.

——

FSZ: There’s more. See, almost as quickly as it starts, it all ends.

Not long after the fight breaks out, the anti-affirmative action protesters — the people who the Supreme Court just ruled in favor of — wrap up the press conference and just leave the premises entirely.

And fights... just stop.

They were headed to go see Ed Blum, the founder and president of Students for Fair Admissions, the leader of the anti-affirmative action movement. He was speaking at the National Press Club, at a press conference, to break down what all of this means for Harvard and universities across the nation.

We're now 1.5 miles away at the National Press Club. It’s about a 30 minute walk from the protests, and we're indoors.

Edward J. Blum: Thank you for coming. Let me introduce the participants of this press conference.

FSZ: Onstage, there’s one Asian student, Calvin Yang. And three white men, including Ed Blum.

EB: My name is Edward Blum, B-L-U-M. I am the founder and president of Students for Fair Admissions. The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation.

FSZ: He explains that Calvin was a participating member of Students for Fair Admissions and was rejected from Harvard. He’s a rising junior at UC Berkeley.

Calvin Yang: Today’s victory transcends far beyond those of us sitting in his room today. It belongs to thousands of sleepless high schoolers applying to colleges. It belongs to the overachieving son of a recently unemployed West Virginia coal miner. It belongs to those with the last names of Smith or Li, Chen or Gonzalez.

FSZ: He goes on to say that he’s happy that, for the next generation — his child’s generation —they won’t have affirmative action.

CY: ... but can now rejoice over the fact that at least our kids can be judged based on their achievements and merits alone. If we work hard enough, we all can have a chance at getting our own slice of this grand American dream.

——

Protestor: Alright, can you hear me?

Crowd: Yeah!

FSZ: Meanwhile, pro-affirmative action students find themselves with a lot of the opposition... just, gone... by the time 1 pm rolled around and the student-organized protest officially began.

Protestors: ... under attack, what do we do?

Crowd: STAND UP FIGHT BACK!

Protestors: What do we do?

Crowd: STAND UP FIGHT BACK!

CEK: So it was sort of — they kind of traded places, in a sense.

FSZ: By this point, most of the anti-affirmative action activists were gone.

CEK: I think there was about a 30-, 45-minute period where it was really just students from the Defend Diversity coalition.

Protestor: Community is our strength.

Crowd: Diversity is our power! [cheers]

FSZ: Our producer, Julian Giordano, estimates that there were maybe a few dozen people on site. The students keep it up for the better half of an hour. But by around two o’clock in the afternoon, they begin to disperse.

Crowd: ... Power!

[Protestors clap and cheer]

——

FSZ: So, just as quickly as they came, the impromptu student protest wraps up. Cam went home. We caught up with her later that evening.

All right. So we're a few hours removed from the decision. We’re here with Cam. Could you tell us a little bit about what you saw today?

CEK: It was very personal on both sides, which is I think one of the reasons why there were some fights and that it was very tense. I think people felt that way about Roe v. Wade when it was overturned. I mean, it’s hard to hear people celebrating something that you very personally feel is sort of devastating.

FSZ: To understand it all, we need to go back to the 14th Amendment, which says that everyone should have equal protection under the law. Harvard considered an applicant’s race at the final stages of deciding whether they got in, and affirmative action gives a greater boost to some racial groups more than others. So at face value, it seems like it violates the 14th Amendment. But there’s actually a built in way to make exceptions to that rule.

Now, it’s a really high bar. It’s the highest bar in all of judicial review: strict scrutiny. It asks the court to decide if something has a “compelling interest,” or a really, really good reason to say, "okay, you don't need to offer everyone equal protection under the law in this very specific case." So, for more than 40 years, justices have ruled that diversity on college campuses is a good enough reason to make an exception. In this ruling, the court says "actually, not really." Harvard's race-based admissions program breaks the law.

Okay, back to Cam.

CEK: I think what stood out to me is that the people that were celebrating had a lot to say about the students that either attend Harvard or attend college generally. And then, that was in very stark contrast to the students themselves. I had asked one of the supporters of SFFA that was there, you know, if there were any students that were coming, and I didn’t meet a single student there that was happy about the decision.

FSZ: The participating student member of SFFA, Calvin, was at the press conference, but not at the Supreme Court.

CEK: You know, when people say this is a win for Asian Americans, many of the students that were there protesting were not happy.

FSZ: So you’re saying then that on the students' side, there was a little bit of a sense of "you’re putting words in my mouth and this is not me, but this is who you’re saying I am."

CEK: Absolutely. There was a lot of judgments that they felt were being made about them that were incorrect. But I did sense there was a little bit of underlying relief that the court hadn’t ruled to completely eliminate any mention of race in college admissions among those who view this as very devastating.

FSZ: How did you feel covering that event? And how do you feel now?

CEK: I think you got on the recording that, like, my hand was shaking, and it literally was because we’d all sort of been waiting for this decision for three weeks plus. And then it just happened.

Okay, now, everything’s different. This sets in motion this massive chain of events: all of the protests, all the celebrations. And then the much, much, much larger chain in motion, which is all of these schools trying to figure out where they go from here.

And I think that’s a feeling among both those who view this as a celebration and those that view this as very devastating. Both groups believe that this is sort of... historical.

——

FSZ: As Cam says, all of this is far from over. The decision dropped set in motion a huge chain of events that rippled outward across the country. And very soon, the wave hit Harvard. The campus, our campus, where it all began.

Here’s what we do know. A Pew Research survey conducted last December showed that, out of U.S. adults who had heard of affirmative action before, only 36% said that it was a good thing.

Even people who appreciate diversity on campus are torn. "Yes, I want reparative measures for historically marginalized students. But do I really want race in a process rooted in merit?" The country might say no, but back on Harvard’s campus, students have something different to say. That’s next.

——

FSZ: So we're here with design chair and reporter Sami Turner, who’s on the ground in Cambridge, on Harvard’s campus, and has been speaking to students throughout the day about their thoughts and reactions.

It’s still Thursday, June 29, hours after the decision dropped.

Welcome, Sami. Thank you so much for joining us.

Sami E. Turner: Hi, Frank! Thanks so much for having me.

FSZ: So I'm curious what you did after the decision released on Thursday morning?

SET: Yeah, so around lunchtime, I decided to go get some lunch.

FSZ: So she goes to one of the dining halls, or cafeterias, on campus.

SET: And I decided to sit down with some students.

You know, I approach each table, introduce myself. The majority of people got the notification that it dropped on their phones, the morning of.

And at first, you know, a few groups were hesitant to speak on it, but pretty much every single student that I talked to said that they were disappointed in the decision — but in varying degrees.

——

SET: Would you mind saying your first and last name?

Carl B. Ho: Carl B. Ho.

SET: And what year are you?

CBH: I'm a rising senior.

FSZ: Now, they're literally reacting just hours after the decision dropped, so students are still processing. They each have something different to say.

SET: What were your reactions to the court’s decision today?

CBH: I definitely wasn't surprised about them, I mean, given the court's current makeup. Definitely was personally disappointed.

Alexander Elamine: Yeah, I read it this morning...

FSZ: This is Alex Elamine, a rising senior.

AE: ... was disappointed but not surprised. Yeah.

Nami Enkhbat: Yeah. My name is Nami Enkhbat.

FSZ: She’s a rising junior.

NE: Kind of like disbelief was not good. I don't know. I just, like didn't predict it. I guess.

AE: So funny story, when I first was admitted, so several students from my high school and city when we were admitted, and you go online, and you start to see people on Twitter. Of course, you have all the praise, whatever, blah blah.

And then, you know, you have people who are just like, "ah, these kids are in because they’re trying to fill a quota," all that.

And I’m like, "it’s kind of funny because Arab Americans are not even really considered anything on the census, they’re considered white." But you know, you still have a city full of Arab American immigrants, Muslims, you know, first gen second gen, all coming in and getting admitted.

CBH: Personally, like, one of the reasons why I maybe didn’t want to apply to a lot of the schools is like, because of that sort of like, almost like a hyper fixation on your performance in like this academic setting and like, without regard to other factors — personal factors — which I think in affirmative action before, its maybe issues and for whatever people might say against it, it like, sort of did try to incorporate, right, sort of matters on identity, right.

SET: Have you ever gotten a chance to look at your admissions file?

FSZ: Harvard students can ask for admissions officers' comments on their application from the admissions office.

SET: What were your reactions when you saw it?

NE: It was pretty holistic, and like, I didn’t feel like I guess they discriminated against me.

SET: What are your thoughts on affirmative action?

CBH: I don't think it’s a perfect system. I think there are definitely other, more effective ways to address racial and social inequities in society. But I think it was definitely a system that, like, was in the right place. And like, definitely did help that.

AE: Hopefully, the leadership at Harvard and other universities will put something together that still allows students from a disadvantaged background — historically disadvantaged, socio-economically disadvantaged — to have these opportunities.

I’m very grateful for everything Harvard has provided, you know, coming in from a low income family, from no one in my family who had entered the Ivy League sphere. You know, my, my dad came here and was grateful to even go to the community colleges.

And within his friend group at that age, that was their Harvard, that was their version of Harvard. So I hope that Harvard continues having these sort of people here who share their experiences and all. These are the people that I’ve met that have just a lot of wisdom, a lot of strength, a lot of experience, a lot of drive. Those are the people I find myself surrounded with, and those are the people I hope continue to come out of Harvard.

SET: Are there any things about Harvard admissions that you feel like should change?

NE: Like maybe legacy? Yeah.

SET: Why is that?

NE: I guess, because it just doesn’t make sense.

And like, I feel like a lot of people with legacy, I feel like they have a lot of opportunities to, like, do well either way. And I feel like for a school like Harvard, like, that’s unnecessary.

SET: What are your thoughts on other considerations in the admission process, like legacy admissions, for example?

AE: I would be surprised if it’s not struck down. I’d hope that whatever decision comes out of that, in terms of legacy, is made with — I hesitate to say — logical decisions, because it does not seem like a lot of those are coming up recently.

But it was, it was a little disheartening. What's supposed to be the highest institution of justice in the U.S.... a lot of it felt unconvincing or strange in how it was handled.

Every time I think of it or anything new that the Supreme Court strikes down, I try to think that the greater arc of history bends toward justice. Feels like we’re reversing that right now.

SET: Some people were saying "This isn’t an outcome that I would have wished for, but it’s not the end of the world." And other people were quite upset about it.

I, anecdotally, spoke with some students who were working in offices on campus and were saying, "Oh my gosh, I've been talking about this with my co-workers all day." Or, some people who were talking about how this was a really contentious topic among their friend group or something that they have talked about with great lengths about with their friends and stuff. You know, I think a lot of people are just worried about people from their own communities being able to have the same access to a Harvard education.

FSZ: Thank you so much, Sami.

SET: Thanks for having me, Frank.

——

FSZ: It’s now Saturday, July 1, two days after the decision drop. We’re still at Harvard. And students have begun to mobilize.

Austin H. Wang: Hello, this is Austin reporting for The Crimson.

FSZ: Austin H. Wang, one of our reporters at Harvard.

AHW: It is Saturday, July 1st, 1:50 pm. I’m just heading over to the rally for affirmative action. It is a very sunny day. Yeah, so a few tables set up around John Harvard.

FSZ: That’s the John Harvard statue, the statue that sits right in the middle of Harvard Yard, surrounded by foliage and administrative and academic buildings. It’s the statue that you can see right in front of you when you enter through the main gates of Harvard Yard.

AHW: Maybe 200 people, at least. A lot of people in purple T-shirts.

The T-shirts say “Our unity is our strength. Diversity is our power.” Blue signs, purple shirts.

And a few posters taped to the doors of University Hall, too...

FSZ: That’s one of the university’s main administrative buildings, home to the offices of deans and other university leaders.

AHW: ... saying "Affirmative Action, Yes." "Equality, Opportunity, Solidarity."

Rally Organizer 1: Good afternoon, my name is...

FSZ: So students give a few speeches.

Rally Organizer 1: On Thursday, the Supreme Court released a majority opinion, a 6 to 3 vote...

FSZ: It’s a little bit hard to hear, but what they're saying, basically, is that they’re here to discuss the decision that’s been made by the majority conservative Supreme Court.

And as soon as they mention the Supreme Court, the students start booing.

Rally Organizer 2: ... of our supreme court.

Crowd: [booing]

FSZ: Future applicants, they say, we want you here on our campus.

Rally Organizer 1: We want them here at our campus and that they belong here.

FSZ: They’re saying that they plan to continue pressuring institutions like Harvard to create more diverse campuses...

Rally Organizer 1: We will continue this fight and we will not back down...

FSZ: ... that Harvard students won’t allow the Supreme Court to weaponize certain races and sow division.

Student: ... Court to weaponize certain races and try to create division among us.

Crowd: [cheering and chanting]

FSZ: So, if you passed by Harvard on Saturday afternoon, July 1st, you’d see a crowd of students chanting in unison and booing the Supreme Court of the United States.

——

FSZ: At this point, Austin is with one of our other reporters, Sammy P. Goldston.

Sammy P. Goldston: People seem pretty fired up.

FSZ: That’s Sammy.

Crowd: [cheering]

FSZ: It’s at this exact moment that an older white man cuts in.

Man: You guys are all paid to say that shit!

Rally Participant 1: BY WHO?

Crowd: BOOOOO...

FSZ: And the student response is furious. But the man continues.

Man: Paid, paid paid!

Crowd: BOOOOO...

Rally Participant 2: Paid by who? I missed the fucking check!

Rally Participants: [chuckles and laughs]

SPG: One guy, an elderly white gentleman, started screaming at the demonstrators. Several of them put a poster in front of his face, and forced him to look at it.

FSZ: So that passes, and the speeches continue.

Rally Organizer 3: This is Jessica, I’m a sophomore here at the college. Just looking around at all the amazing amazing diverse people around us is phenomenal!

Crowd: [cheers and claps]

Rally Organizer 3: I don’t want to see this change in two years, five years, ten years. I want to see a diverse fucking Harvard!

FSZ: And by now, the rally is winding down. So the students send one more message to Students for Fair Admissions, the anti-affirmative action group who filed the lawsuit against Harvard and the University of North Carolina.

Chants: Ho ho, hey hey, we say no to SFFA! Ho ho, hey hey, students of color are here to stay! Ho ho, hey hey, we say no to SFFA! Ho ho, hey hey…

FSZ: Huge thanks to Austin and Sammy for reporting at the protest.

——

FSZ: And just one last stop. Because, as all the protests and rallies went on, two of our reporters were pouring over the decision cover to cover, marking up each page. Miles J. Herszenhorn and Neil H. Shah join us to break down what all of this really means for Harvard, the future of higher education, and universities across the nation.

So we’re here with Miles Herszenhorn and Neil Shah. Miles covers the offices of Harvard’s President and Provost, and Neil covers Harvard Law School. Both of you have been covering this case, Miles from D.C. and Neil from Cambridge. I wonder what about the justices' arguments stood out to you?

Neil H. Shah: Sure. So one thing that stood out to me across the dissents, the concurrences, and even parts of the opinion was the amount of sparring that was happening back and forth between the justices and their opinions. I mean, it was almost to be expected given how emotional this case is for many of the justices.

Miles J. Herszenhorn: This is one of the most significant cases that the court delivered this term. And so usually, when it comes to this time in the year for the justices, they are debating incredibly contentious issues that will impact American society at large. So it is quite natural that they will butt heads over momentous decisions that have the potential to profoundly impact the American people, which was the case with this affirmative action decision.

FSZ: So this ruling isn’t just a blanket ban on affirmative action. How much of race-conscious admissions was struck down and how much of it still stands?

MJH: So in [Chief Justice John] Roberts' opinion, he wrote, nothing in his opinion “should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

That line is incredibly important and a lot of universities and other legal experts have latched onto that line in Roberts' opinion since the decision came out, noting that that is something that schools can potentially use to consider an applicant more holistically and potentially foster a more diverse student body as a result.

NHS: So, Harvard Law School Professor Emeritus Alan Dershowitz told me this morning: "if that paragraph is applied correctly," he says, there wouldn't be a loophole. But, this essentially creates a loophole that he fears universities are going to use unlawfully.

FSZ: I wonder how you think pro-affirmative action students and adult activists will move forward in the wake of this decision and what pro-SFFA activists will do as well?

MJH: That’s a great question, Frank. I think we should start by looking at what people and students who are supporting affirmative action might think about over the coming days.

Obviously, they will have to consider how this decision will impact not just their campuses, but American society at large. I think right now they're taking a moment to re-group, strategize. But when they decide to come back and start advocating for increased diversity on their college campuses, we should expect to see issues like legacy admissions on the chopping block. We should expect to see a renewed push to find other methods of creating a diverse student body. We will see these groups likely advocating for the end of preferences for athletes and various other admissions practices that some argue make college campuses less diverse rather than more diverse.

NHS: In fact, there have already been increased calls to scrutinize legacy admissions. For example, in Justice [Neil] Gorsuch’s concurrence to the Supreme Court’s opinion today, he noted something SFFA said in oral arguments, which was that — if universities were to reduce legacy preferences, increase financial aid, and implement other measures like that — that they could replicate the effects of race-based affirmative action when it comes to increasing racial diversity. And in the hours following the decision, President Biden held a press conference in which he mentioned that he would be directing the Department of Education to further look into legacy admissions practices. So I think that this is something that isn’t just a conversation for the future, but is starting to become a conversation for now.

FSZ: It really is. Four days after the court released its affirmative action decision, three Black and Latinx groups filed a civil rights complaint against Harvard, alleging that the university’s consideration of legacy and donor preferences in the admissions process violates the Civil Rights Act of 1964. And, just this week, Wesleyan University threw out legacy preferences in its admissions process entirely.

So I’m curious then what SFFA activists, pro-SFFA activists, are thinking?

MJH: So the first thing, Frank, is they’re celebrating. This was a huge victory for anti-affirmative action groups who have been lobbying for the end of affirmative action policies for a very long time, and they’re taking this time to enjoy what they see as the culmination of decades of organizing.

That being said, these groups are also not exactly going to go away and just hang up their cleats. Edward Blum, the president of anti-affirmative organization Students for Fair Admissions, said at a press conference in Washington that America’s colleges and universities have a legal and moral obligation to strictly abide by the Supreme Court’s opinions.

He also said that the group will be careful and vigilant in monitoring for direct proxies for race. Now, Blum said that “if we feel that a college or university is using something that basically mirrors racial classifications, that's something that we would object to.” So we will see these groups paying very close attention to how universities respond in the aftermath of the Supreme Court decision, and if they believe someone is using a proxy for race, they will go and they will attempt to litigate that.

FSZ: For sure. Harvard may very well be back in court very soon. That leads us to Harvard’s response. What was the official university response and where is Harvard moving next?

MJH: Great question. About an hour and a half after the Supreme Court ruling was announced, the initial communication that we received from the university came in the form of an email sent to all members of the Harvard community. And they wrote a pretty lengthy note in which they essentially said that they will comply with the court’s decision and abide by the law, but they also reaffirmed the university’s commitment to diversity.

What’s most notable about this statement is that it was signed by outgoing University President Lawrence Bacow, Provost Alan Garber, incoming University President and outgoing FAS Dean Claudine Gay, the Executive Vice President Meredith Weenick, and 15 deans of the university’s schools. As long as I’ve been a reporter for The Harvard Crimson, I have never seen the university release a statement that is signed by so many top Harvard officials. It clearly shows that the university took this decision incredibly seriously. And wanted to show that it was responding on behalf of the entirety of the university.

FSZ: So at the end of the day, then, this ruling will impact students who are applying to colleges, yes, but how broadly can we apply the scope of this decision? And is there a limit that we should watch out for?

MJH: This is a first step, maybe, when it comes to how things that go beyond university admissions practices might be litigated, but it suggests that the court is now open to ruling that other practices that consider race would violate the constitution.

It opens the floodgates.

FSZ: Thank you so much for joining us Neil and Miles, and for your critical reporting analysis on this subject.

NHS: Thank you so much for having us.

MJH: Thank you, Frank. Always a pleasure.

——

FSZ: This episode of Newstalk was written and produced by Frank Zhou and edited by Julian J. Giordano and Frank Zhou, with help from Claire Yuan and Hailey E. Krasnikov. Original score by Benjy Wall-Feng.

Our managing editor is Brandon L. Kingdollar. Our president is Cara J. Chang.

From Washington D.C. and Harvard, this is Newstalk.