Ms. Ara Gershengorn, an attorney in Harvard’s Office of the General Counsel, spoke, via Zoom, to about 20 Harvard & Radcliffe Classes of 1960 classmates on April 18, 2024. Notably, relative to the subject of her talk -- changes in Harvard’s admissions’ philosophy and process as a result of the July 29, 2023, U.S. Supreme Court decisions addressing the legality of race-conscious affirmative action in college admissions programs -- Ara served as lead in-house counsel managing the litigation challenging Harvard College’s consideration of race in admissions.
Please see details concerning Ara’s career, etc. at the end of this more or less stream of consciousness “report” about her talk.
Some of you will recall our discussion about this topic on October 5, 2023.
At the outset, I wish to say that I found Ara’s presentation to be thoroughly informative … and especially upbeat and reassuring in contrast to much of what has been transpiring, before and after October 7, 2023, in the United States concerning higher education in general and Harvard in particular. Classmate David Wizansky, participant in the April 18, 2024, Zoom session, agreed, writing: “It is heartening to know that in these challenging times there are folks such as yesterday’s presenter who are at the wheel and guiding a major institution and its values.”
Of course, the Harvard admissions process seemingly operates today in a context that is astoundingly different from the era in which we were admitted to Harvard. Yet, the article by former Harvard President Neil L. Rudenstine -- “Student Diversity and Higher Learning” (a 19-page chapter in Diversity Challenged: Evidence on the Impact of Affirmative Action, edited by Gary Orfield, 2001) @ https://files.eric.ed.gov/fulltext/ED456192.pdf -- that Ara referenced and read from, cites, as today’s “diversity” progenitors, former Harvard President Cornelius C. Felton, 1860-1862, and his concern that Harvard become more diverse in the context of the Civil War, as well as former Harvard President Charles W. Eliot, 1869-1909, who sought to attract students from a variety of "nations, states, schools, families, sects and conditions of life" so they could experience "the wholesome influence that comes from observation of and contact with people different from themselves.”
In response to our interest in divining Harvard’s objective(s) with respect to determining who best to admit today to the Harvard College student body, Ara read from Rudenstine’s article the following passage (at least I am fairly certain this was the passage she read):
“Students benefit in countless ways from the opportunity to live and learn among peers whose perspectives and experiences differ from their own. A diverse educational environment challenges them to explore ideas and arguments at a deeper level to see issues from various sides, to rethink their own premises, and to achieve the kind of understanding that comes only from testing their own hypotheses against those of people with opposing views.”
Ara also referenced current Harvard College Dean, Rakesh Khurana, who in welcoming each freshman class at the beginning of each academic year, includes remarks such as his to the Class of 2023:
“At Harvard, you will be joining a lively intellectual community where debate is an important part of learning. Hearing each other’s points of view, having our own assumptions challenged, and interrogating our own values are experiences central to Harvard’s liberal arts and sciences education.”
To further set the context, I cannot resist including another statement by Neil Rudenstine:
“It should be recognized at the outset that there is regrettably no ideal, friction-free way to arrive at decisions regarding admissions, and no effective way to explain such decisions to the thousands of individuals who are affected by them.”
Now, to the subject at hand – i.e. the admissions process pertaining to the Harvard College Class of 2028.
(Note: the June 29, 2023, U.S. Supreme Court (SCOTUS) decisions in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina also pertain to the admission of students to most graduate schools.)
(And, of course, there are many other issues pertaining to candidates for admission -- legacy and donor offspring, athletes, the poor, non-US citizens, etc. -- that may be of interest and, may involve legal action in the near term … and we can pursue those at some point.)
Be aware that you can bring yourself up to date by accessing some available resources. I would recommend that you refresh first with the October 3, 2023, Harvard Gazette article, “Weighing the Future of Harvard Admissions”, with then, President Claudine Gay, Dean of Admissions & Financial Aid William Fitzsimmons and Joy St. John, the College’s Director of Admissions @ https://news.harvard.edu/gazette/story/2023/10/weighing-the-future-of-harvard-admissions/. This article articulates changes in the admissions process that were discussed by Ara.
At the outset of her talk, Ara made it quite clear that SCOTUS determined in its decisions that Harvard and the University of North Carolina had had admissions policies and practices which they operated in good faith (and, indeed, from a legal perspective were in accordance with the law prior to June 29, 2023) … and that they had NOT discriminated! But, SCOTUS also determined that diversity was not sufficiently measurable.
I found that the ambiguities (or, at least, equivocations) in the SCOTUS decisions complicates the admissions process for institutions of higher education … even places them in danger … and confounds the applicants as well. While the nation's colleges and universities must use colorblind criteria in admissions, the court did not entirely close the door to racial considerations in college admissions. As Chief Justice John Roberts put it, "nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life."
So, applicants must choose, perhaps at their peril, whether or not to reveal race in their essays, etc. And, more importantly, the colleges and universities are put in a position of walking a tightrope so as to avoid consideration of race. Sure, any effort by Harvard et al to view race collectively (as in “quota”) is verboten; but, the fact that considerations of the impact of race on individual applicants add up, as surely, complicates matters. When diversity is a prime objective, and those involved directly in admissions decisions know the race of applicants through their essays, how do those decisionmakers disregard race in their decision-making AND prove that they have disregarded race? Add to this the fact, as explained by Ara, that there is no independent body “observing” Harvard’s admissions process. Interested folks, alums or outsiders, most likely have a wide range of expectations with regard to the results of the SCOTUS decisions. Therefore, Harvard and other institutions of higher education are likely to be criticized (even sued?) no matter the results.
An aside: our classmate, Ron Goodman, who interviewed five applicants to the Harvard Class of 2028, explained in the April 18, 2024, Zoom session, that he knew the race of one applicant because he interviewed the applicant in person. I had thought, in light of the SCOTUS decisions, that all interviews would have to be done over the phone (NOT in person or via Zoom).
For a different perspective, read Harvard Professor Michael Sandel’s The Tyranny of Merit, 2020. I think it goes a long way in explaining education’s role in the social-economic-political divisiveness we are now experiencing in our country and, tangentially, suggests what a healing admissions policy and resultant procedures might look like.
__________________________________
ARA GERSHENGORN
I am honored to introduce to you Ara Gershengorn. Ara has graciously agreed to speak to us about the effect on Harvard admissions policy and procedures of the U.S. Supreme Court decisions regarding affirmative action.
Allow me to provide you with a bit about her and her distinguished legal career. First, concentrating in English and American Literature and Language at Harvard College, Class of 1993, Ara earned her B.A. magna cum laude. Ara went on to earn her Doctor of Jurisprudence at Columbia Law School where she was a Notes Editor of the Columbia Law Review.
Following her clerkship in the U.S. Court of Appeals for the Second Circuit, Ara joined the U.S. Department of Justice through the Honors Program as an Appellate Attorney in the Civil Division. Later, Ara was an Assistant U.S. Attorney in Philadelphia where she prosecuted criminal trials and appeals. Ms. Gershengorn has briefed and argued dozens of constitutional and statutory cases in nearly every federal circuit court of appeals in the country.
Prior to joining Harvard’s Office of the General Counsel, Ara was a partner at Foley Hoag in Boston. She concentrated her practice in the areas of complex civil litigation, white collar criminal defense, and data security and privacy.
She also has had a significant pro bono practice, working alongside and on behalf of the Victim Rights Law Center, the ACLU of Massachusetts, the Lawyers Committee for Civil Rights Under the Law, GLBTQ Legal Advocates & Defenders, and the Medical-Legal Partnership.
At Harvard, Ms. Gershengorn advises senior leadership on a wide range of issues including investigations and litigation, faculty and student affairs, and law enforcement related matters. She also lectures at the Law School.
Notably in today’s context, Ara has served as lead in-house counsel managing the litigation challenging Harvard College’s consideration of race in admissions.
