The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education

by Justin Driver

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.

Genres: Politics, Race, Nonfiction

280 pages, Paperback

Published September 16, 2025

Reviews

[Amy Sullivan · Rating 5 out of 5]

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.

[Jerry Edward Stephens · Rating 5 out of 5]

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.