The Fall of Affirmative Action

A New York Times Book Review Editors’ Choice

For 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 Court’s decision ushers in a less desirable admissions regime. The post-SFFA model 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 Administration’s assault on higher education has been fueled by distorted readings of SFFA, further clouding the opinion’s already opaque meaning. But SFFA, properly understood, leaves universities significant legal room to combat Trump’s anti-D.E.I. onslaught by adopting innovative policies that foster diversity—including preferences for descendants of slavery, members of tribes, and applicants from blighted communities.