BOOK REVIEW: “The Fall Of Affirmative Action: Race, The Supreme Court, And The Future Of Higher Education,”

YALE LAW SCHOOL

When the U.S. Supreme Court overturned affirmative action in college admissions in Students for Fair Admissions v. Harvard in 2023, conservatives celebrated the decision as a triumph of colorblindness while liberals despaired that it was the end of racial equity. In his new book, Professor Justin Driver argues that both sides have gotten it wrong.

In “The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education,” Driver examines the consequences of what he calls “the most significant judicial opinion involving race and education since Brown v. Board of Education.”

Despite the opinion’s significance, Driver says SFFA remains profoundly misunderstood. His book sets out to clarify what the decision does and does not mean. He argues that the ruling does not mark the end of racial diversity in higher education but the beginning of a new chapter in the fight for equity.

Driver challenges conservatives by demonstrating that SFFA will create a less desirable admissions system than the old affirmative action model it replaced. He challenges liberals by arguing that their efforts to justify affirmative action have failed to confront powerful objections. Finally, he offers proposals for how universities can adopt innovative policies in the wake of SFFA that foster diversity.

Even prior to publication, the book has garnered significant attention and acclaim. In a front page story about the Trump administration’s efforts to secure university admissions data, The New York Times quoted Driver and mentioned his book. Harvard constitutional law scholar Laurence Tribe recommended the book on X, calling it “a brilliant analysis of a vital issue you may think you understand but almost certainly don't.”

In one chapter, Driver examines Chief Justice John Roberts’ allowance that colleges may award applicants an admissions boost if their personal essays “discuss how race affected his or her life, be it through discrimination, inspiration, or otherwise.” This seems virtually guaranteed to produce results that conservatives will dislike even more than the system that SFFA replaced, Driver writes.

Rather than write essays discussing their passion to study Proust, Plato, or string theory, under the SFFA regime, “Black and brown students are strongly encouraged to produce narratives of racial woe that not only utilize the victimhood mindset that conservatives loathe, but also complicate the tale of America’s racial progress that conservatives prize,” Drives writes. In the new post-SFFA era, even students who would prefer to avoid focusing on race in their essays may now feel compelled to do so, Driver continues.

In another chapter, Driver examines the competing interpretations of the 14th Amendment’s equal protection clause and its impact on affirmative action. Liberal legal scholars interpret the clause as prohibiting the government from perpetuating racial subordination, therefore making affirmative action constitutional. This anti-subordination theory, however, is far more variable than liberals allow, Driver writes. Many conservatives who oppose affirmative action claim that the programs themselves subordinate Black students. By lowering admissions standards, critics argue, affirmative action policies perpetuate the myth of Black intellectual inferiority.

“Traditional anti-subordination scholars have steadfastly refused to treat these arguments with the seriousness they deserve — or even any seriousness at all,” Driver writes.

Despite the “veritable catastrophe” that SFFA represents, Driver believes the decision leaves universities significant legal room to adopt innovative policies that will foster diversity. He devotes a chapter to outlining how universities could provide preferences for descendants of slavery, members of Native American tribes, immigrants, and applicants from low-opportunity rural and urban communities. “The death of affirmative action therefore need not mean the demise of racial diversity in higher education,” Driver writes.

Wesleyan University President Michael Roth wrote in The New York Times that "one can only hope that university leaders, faculty members and students will consult this worthy book."

Driver is the Robert R. Slaughter Professor of Law at Yale Law School and an expert in the field of constitutional law. His first book, “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind,” was selected as a Washington Post Notable Book of the Year and a New York Times Book Review Editor’s Choice.