Fall of Affirmative Action

A New York Times Book Review Editors ChoiceFor decades, affirmative action reshaped not just American higher education but the broader society, opening doors that had been closed for centuries and transforming who entered the pathways to power. But the Supreme Court in 2023 killed affirmative action in Students for Fair Admissions v. Harvard, a decision hailed by the right as a triumph of conservative colorblindness and decried by the left as requiring the end of racial equity. Both sides, Yale Law School professor Justin Driver contends, are wrong.Perversely, even when viewed through a conservative lens, the Courts decision ushers in a less desirable admissions regime. The post-SFFAmodel places a new premium on students of color voicing their racial trauma in elaborate application essays, entrenching the very racial victimization and essentialism that conservatives purport to loathe. The Trump Administrations assault on higher education has been fueled by distorted readings of SFFA, further clouding the opinions already opaque meaning. But SFFA, properly understood, leaves universities significant legal room to combat Trumps anti-D.E.I. onslaught by adopting innovative policies that foster diversityincluding preferences for descendants of slavery, members of tribes, and applicants from blighted communities.Far from a mere eulogy, The Fall of Affirmative Actionprovides a blueprint for the futurea rallying cry for citizens to forge new paths to inclusion and push back against the notion that racial equity is doomed. The death of affirmative action, Driver insists, need not mean the death of opportunity.