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The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education
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.
Far from a mere eulogy, The Fall of Affirmative Action provides a blueprint for the future—a 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.
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.
Far from a mere eulogy, The Fall of Affirmative Action provides a blueprint for the future—a 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.
280 pages, Paperback
Published September 16, 2025
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Displaying 1 - 7 of 7 reviews
October 1, 2025
Justin Driver's excellent book makes the case that conservatives may come to regret the Supreme Court's 2023 decision striking down affirmative action in college admissions. He argues that, rather than simply check a box to indicate their race, the decision will force non-white applicants to "perform their trauma" in application essays in ways that conservatives may find even more corrosive. And affluent non-white candidates - the people conservatives say should not be benefiting from affirmative action - will be the ones best-positioned to take advantage of the opportunity, since they are most equipped to exploit the loopholes and work-arounds that the Roberts decision created. A truly provocative read.
December 15, 2025
Covers all of the ground in the Supreme Court's fateful 2023 decision that sounded the death knell for affirmative action in the United States, if a bit summarily for the runup to the final case. Looking forward to perusing the endnotes for more works to read and I look forward to future books from the author.
December 17, 2025
“The Fall of Affirmative Action” is a book that details the Conservative and Liberal views of Affirmative Action, the strengths and weaknesses of each argument, and what the author believes is path to move forward given that the Supreme Court of the United States banned its practice on June 29, 2023.
Note: This ruling settled the case of the Students for Fair Admission (SFFA) versus the President and Fellows of Harvard College (Harvard).
Justin Driver, the author, is a professor at the Robert P. Slaughter Law School at Yale, and views Affirmative Action as more of an educational issue than something that affects American society at large, or the workplace.
He spends the first two-thirds of this book providing a fair presentation of the arguments from “The Right” (Conservatives and Republicans) - who believe that eliminating Affirmative Action was an excellent decision - and from “The Left” (Liberals and Democrats) -who are now convinced that this was the end of equality in education in America.
Mr. Driver suggests that both Conservative and Liberal positions of this argument regarding the SFFA ruling are wrong, that this "Conservative victory" will be short lived, and that there are other ways for Liberals to continue fighting to increase the representation of Black and brown students in higher education, and particularly, in elite colleges.
I enjoyed how the author outlined the two main points of the argument for and against Affirmative Action. His discussion on the subject starts with the history of Affirmative Action, beginning in 1963 when the University of Washington (U of W) began thinking that University actions should be made “solely on the basis of merit of the applicants without regard to race, creed, or colour”.
As a result of the entrenched thinking of the "inferiority of Blacks" at the time,“Equality was not enough” and that “some more positive contribution had to made by the U of W to address the racial problem”.
The resulting action by the University of Washington would soon become known as “Affirmative action”- whereby a reasonable proportion of admissions (perhaps 15-20%) would be reserved for racial minorities.
Moving forward in time, the author discusses how Affirmative Action was challenged by the Supreme Court starting with DeFunis vs. Odegaard. This is a case where a White student (DeFunis) was rejected by the U of W and it made it up through the system to the Highest Court in America. DeFunis was admitted to the University during the trial and graduated before the Supreme Court made it's decision, making this a Non-Decision.
Despite challenges by many courts, Affirmative Action, has remained in place for nearly six decades and only recently was brought down with the SFFA ruling.
I learned a lot from the author's outlining of the arguments both for and against SFFA. This book helped clarify the discussion, let me better see the thinking on both sides, challenges some of my beliefs on the subject and confirmed others, and helped me be better informed.
While the case is important in America, the thinking about Affirmative Action pervades most of the Western world. The subject is alive and well in my native Canada despite the fact that our nation evolved differently from America and often rejects "American policies" - unless they are Liberal policies.
Although Canada did not have slavery - the practice was abolished by Britain in 1807 and our country was formed in 1867 - and it tended to have more of a Multicultural approach since at least 1967 - when Affirmative Action formed in the United States. Our Federal Government, which has been run for the past decade, strongly supports the practice of Affirmative Action - often without the rationale outlined in this book. It has adopted much from America apart from the checks and balances on these laws.
I particularly liked the author's discussion related to Laws of America and the Amendments to the Constitution of the United States. Of note is the 14th Amendment which created two, often conflicting viewpoints, and which continues to fuel the debates over Affirmative Action.
1. 13th Amendment – abolishes slavery.
2. 14th Amendment – equal protection for all under the US laws.
3. 15th Amendment – provided Black males with the right to vote.
The 14th Amendment has proven to be problematic in that it provides two interpretations that causes conflict. Understanding the interpretations is fundamental to understanding Affirmative Action:
Interpretation #1 – prohibits government from engaging in racial classification
Interpretation #2 – prohibits government from perpetrating racial subordinations – which is a complex argument.
Note: Conservatives and Liberals have used this argument in vastly different ways.
While this background was interesting, I also found some of the author's thoughts on how America moves forward to be problematic. I could appreciated his Liberal stance - despite the fact that I take a different point of view - but I also felt that he did so while employing an overly narrow lens.
Professor Driver covered the roles that Asian Americans played in precipitation the SFFA ruling and also mentioned how this might affect native "Indian" (indigenous) tribes. But he focused his efforts almost entirely on keeping Black and Brown student admissions up in Colleges – largely because they are seen to be more oppressed. Oddly he completely left out indigent White people.
The author tried to explain this by saying that there were more poor Whites than poor Blacks in America and used this to push the argument that if a college opened places for economically-disadvantages students, that these should go to Black and Brown students over Whites?
This focus on race versus circumstance, seemed to run against the author's otherwise balanced point of view. Clearly one should take a position in a book, but the segmenting those who need support into Black and Brown students vs. others seems to run against a tenant that the author seems to support - i.e., racism is bad.
To me this is very similar thinking to what the Democratic Party believes and acts in the United States. It focuses on women's rights, LGBTQ and aboriginal right but completely ignores the needs of poorer Whites and particularly white males, while simultaneously presenting itself as a “Big Tent” party.
This is not a coincidence as Professor Driver has worked closely with the Democratic Party. After reading the book I did some more research on the author and found that on April 9, 2021, Driver was named to the Presidential Commission on the Supreme Court of the United States. His thinking is aligned with the thinking of the Democratic Party in the United States.
Following suit, the author tries to fight against racism in America, but his book ignores a very important group – poor Whites. Is this not in itself racist?
I leave it to you to answer this question, but I'd like to point out that the Republican party and Conservatives in America have picked up on the Democrats and Liberals in America ignoring the needs of poorer Whites. This is a sizeable minority of people and one that is left out of many debates on social justice. Perhaps following the Democratic Party, the author appears to not recognise this mistake. If they do not I don't think they can succeed in the next election.
I also felt that the book largely ignored the larger context in which Affirmative Action presents itself in American and beyond. While the author talked extensively about judges involved in the Supreme Court, but mentioned only a few paragraphs at the end of the book about the polarisation between Conservatives and Liberals across the country vs. only in colleges.
This discussion should have been part of a larger story versus being the main story that has spilled beyond colleges to the corporate world – as the author seems to suggest. Perhaps this is because he author is a professor and this may indeed be the way he sees the world. But is it a realistic viewpoint and shouldn't it be grounded within a broader societal context?
To wrap up this review, The Fall of Affirmative Action was truly a terrific book, and one that I thought was balanced for the first two-thirds of reading. The last third was biased and I disagree with the author's pro-Black and Brown student approach only because the logic didn't seem to follow. Why exclude when you can include?
Please read it. This is an important subject, and the author knows his material well. I could appreciate his difference in opinion but don’t agree with his selective use of data.
Note: This ruling settled the case of the Students for Fair Admission (SFFA) versus the President and Fellows of Harvard College (Harvard).
Justin Driver, the author, is a professor at the Robert P. Slaughter Law School at Yale, and views Affirmative Action as more of an educational issue than something that affects American society at large, or the workplace.
He spends the first two-thirds of this book providing a fair presentation of the arguments from “The Right” (Conservatives and Republicans) - who believe that eliminating Affirmative Action was an excellent decision - and from “The Left” (Liberals and Democrats) -who are now convinced that this was the end of equality in education in America.
Mr. Driver suggests that both Conservative and Liberal positions of this argument regarding the SFFA ruling are wrong, that this "Conservative victory" will be short lived, and that there are other ways for Liberals to continue fighting to increase the representation of Black and brown students in higher education, and particularly, in elite colleges.
I enjoyed how the author outlined the two main points of the argument for and against Affirmative Action. His discussion on the subject starts with the history of Affirmative Action, beginning in 1963 when the University of Washington (U of W) began thinking that University actions should be made “solely on the basis of merit of the applicants without regard to race, creed, or colour”.
As a result of the entrenched thinking of the "inferiority of Blacks" at the time,“Equality was not enough” and that “some more positive contribution had to made by the U of W to address the racial problem”.
The resulting action by the University of Washington would soon become known as “Affirmative action”- whereby a reasonable proportion of admissions (perhaps 15-20%) would be reserved for racial minorities.
Moving forward in time, the author discusses how Affirmative Action was challenged by the Supreme Court starting with DeFunis vs. Odegaard. This is a case where a White student (DeFunis) was rejected by the U of W and it made it up through the system to the Highest Court in America. DeFunis was admitted to the University during the trial and graduated before the Supreme Court made it's decision, making this a Non-Decision.
Despite challenges by many courts, Affirmative Action, has remained in place for nearly six decades and only recently was brought down with the SFFA ruling.
I learned a lot from the author's outlining of the arguments both for and against SFFA. This book helped clarify the discussion, let me better see the thinking on both sides, challenges some of my beliefs on the subject and confirmed others, and helped me be better informed.
While the case is important in America, the thinking about Affirmative Action pervades most of the Western world. The subject is alive and well in my native Canada despite the fact that our nation evolved differently from America and often rejects "American policies" - unless they are Liberal policies.
Although Canada did not have slavery - the practice was abolished by Britain in 1807 and our country was formed in 1867 - and it tended to have more of a Multicultural approach since at least 1967 - when Affirmative Action formed in the United States. Our Federal Government, which has been run for the past decade, strongly supports the practice of Affirmative Action - often without the rationale outlined in this book. It has adopted much from America apart from the checks and balances on these laws.
I particularly liked the author's discussion related to Laws of America and the Amendments to the Constitution of the United States. Of note is the 14th Amendment which created two, often conflicting viewpoints, and which continues to fuel the debates over Affirmative Action.
1. 13th Amendment – abolishes slavery.
2. 14th Amendment – equal protection for all under the US laws.
3. 15th Amendment – provided Black males with the right to vote.
The 14th Amendment has proven to be problematic in that it provides two interpretations that causes conflict. Understanding the interpretations is fundamental to understanding Affirmative Action:
Interpretation #1 – prohibits government from engaging in racial classification
Interpretation #2 – prohibits government from perpetrating racial subordinations – which is a complex argument.
Note: Conservatives and Liberals have used this argument in vastly different ways.
While this background was interesting, I also found some of the author's thoughts on how America moves forward to be problematic. I could appreciated his Liberal stance - despite the fact that I take a different point of view - but I also felt that he did so while employing an overly narrow lens.
Professor Driver covered the roles that Asian Americans played in precipitation the SFFA ruling and also mentioned how this might affect native "Indian" (indigenous) tribes. But he focused his efforts almost entirely on keeping Black and Brown student admissions up in Colleges – largely because they are seen to be more oppressed. Oddly he completely left out indigent White people.
The author tried to explain this by saying that there were more poor Whites than poor Blacks in America and used this to push the argument that if a college opened places for economically-disadvantages students, that these should go to Black and Brown students over Whites?
This focus on race versus circumstance, seemed to run against the author's otherwise balanced point of view. Clearly one should take a position in a book, but the segmenting those who need support into Black and Brown students vs. others seems to run against a tenant that the author seems to support - i.e., racism is bad.
To me this is very similar thinking to what the Democratic Party believes and acts in the United States. It focuses on women's rights, LGBTQ and aboriginal right but completely ignores the needs of poorer Whites and particularly white males, while simultaneously presenting itself as a “Big Tent” party.
This is not a coincidence as Professor Driver has worked closely with the Democratic Party. After reading the book I did some more research on the author and found that on April 9, 2021, Driver was named to the Presidential Commission on the Supreme Court of the United States. His thinking is aligned with the thinking of the Democratic Party in the United States.
Following suit, the author tries to fight against racism in America, but his book ignores a very important group – poor Whites. Is this not in itself racist?
I leave it to you to answer this question, but I'd like to point out that the Republican party and Conservatives in America have picked up on the Democrats and Liberals in America ignoring the needs of poorer Whites. This is a sizeable minority of people and one that is left out of many debates on social justice. Perhaps following the Democratic Party, the author appears to not recognise this mistake. If they do not I don't think they can succeed in the next election.
I also felt that the book largely ignored the larger context in which Affirmative Action presents itself in American and beyond. While the author talked extensively about judges involved in the Supreme Court, but mentioned only a few paragraphs at the end of the book about the polarisation between Conservatives and Liberals across the country vs. only in colleges.
This discussion should have been part of a larger story versus being the main story that has spilled beyond colleges to the corporate world – as the author seems to suggest. Perhaps this is because he author is a professor and this may indeed be the way he sees the world. But is it a realistic viewpoint and shouldn't it be grounded within a broader societal context?
To wrap up this review, The Fall of Affirmative Action was truly a terrific book, and one that I thought was balanced for the first two-thirds of reading. The last third was biased and I disagree with the author's pro-Black and Brown student approach only because the logic didn't seem to follow. Why exclude when you can include?
Please read it. This is an important subject, and the author knows his material well. I could appreciate his difference in opinion but don’t agree with his selective use of data.
October 21, 2025
My review of this book tells as much about me as a person as it does the qualities of the book. As an active participant in my various communities, I am wholeheartedly supportive of affirmative action. I believe the vitality of our democracy and our democratic constitutional republic requires the active and informed participation of every citizen. And some of our citizen partners need real societal help to be full and complete participants. But I am troubled by race-based affirmative action policies and proposals. I was raised to believe that Dr. Martin Luther King, Jr. was absolutely right in his dream and wish for a society that judged each person on their individual characteristics and not their racial identity. For that, I may be a very naive but hopeful person. I have come to believe such race-based policies fail dramatically in the whole educational process. I also believe that others, especially like Richard D. Kahlenberg, offer a much more positive answer in the idea of class-based affirmative action. Kahlenberg's 1996 book, The Remedy: Class, Race, and Affirmative Action (BasicBooks) offers a more viable and productive approach to overcoming the burdens of class and poverty many people are forced to bear. Justin Driver does give the interested reader one of the very best introductions to this form of societal action and, quite ironically, why it is under social assault and threat of actual demise. Driver should be read to seriously understand why race-based affirmative action was, at one time, thought to be a promising solution to society's most pressing and dire failings.
December 27, 2025
Absolutely phenomenal breakdown of SFFA, how we got here, and what we can build. It’s a shame that the Roberts Court (Taney Court 2.0?) has run away from Court precedent and the commitment to a better America. However, we have the tools and means to build a better future and while not assured, Driver lays out how we can do it. This one will anger you if you care at all about an inclusive, multi-racial democracy, but hope remains.
December 8, 2025
Really interesting and thorough. Does a very good job of describing and testing the best arguments in favor of and against affirmative action in a persuasive and evenhanded way. Does a little bit read like a law review article that he just couldn’t finish in under 250 pages but is 100% more readable than any law review article I’ve ever read.
December 21, 2025
It’s hard to review this type of book properly, because the usual rubric for evaluating philosophy or fiction can’t apply. However, this book deserves 5 stars because it expanded by knowledge on the subject of affirmative action, and was written quite well.
Displaying 1 - 7 of 7 reviews