After the Fall: How to Revive Diversity After the Death 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-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 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 Actionprovides 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.

About the Author :
Justin Driver is the Robert R. Slaughter Professor of Law at Yale Law School. He is the author of The Schoolhouse Gate, named a Washington Post Notable Book of the Year and a New York Times Book Review Editors’ Choice. An elected fellow of the American Academy of Arts & Sciences, he was appointed by President Biden to the Presidential Commission on the Supreme Court.

Review :
“Justin Driver’s compact and insightful new book appears at a time when the government’s approach to discrimination has shifted dramatically.... [He] does an excellent job of concisely rehearsing the lawyers’ lines of reasoning in terms that non-lawyers can understand.... The [Trump Administration’s] siege is well underway, and one can only hope that university leaders, faculty members and students will consult this worthy book as they work to ensure that those commitments survive.” —Wesleyan president Michael S. Roth, New York Times Book Review “[The Fall of Affirmative Action] is a challenging read for a conservative like me. I always try to read the best arguments for the opposing point of view, and Driver’s arguments in favor of affirmative action are the best I’ve read.” —David French, New York Times “A judicious assessment of the history of affirmative action, with strong arguments for diversity in the wake of its demise.” —Kirkus Reviews “This book stands as a brilliant reminder that the nation’s struggles to overcome the tragic legacy of discrimination against African Americans cannot and should not be subject to closure. Justin Driver’s insightful analysis of the Supreme Court’s decision in SFFA v. Harvard provides much-needed hope for our future. A book critically important to this fraught moment for American higher education.” —Lee C. Bollinger, president emeritus of Columbia University and author of A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action “Justin Driver is a dazzling commentator on legal affairs who deploys prodigious knowledge and a knack for lively writing to make complex controversies accessible. This is, without exception, the single best volume in the library of books about affirmative action. It passionately advances a thesis—affirmative action is useful and ought not to have been nullified—while paying scrupulous attention to contending points of view. It is a masterful intervention that offers bracing instruction whatever your prior inclination. The Fall of Affirmative Action warrants reading and rereading.” —Randall Kennedy, Michael R. Klein Professor of Law, Harvard Law School “Although much has been written about affirmative action, Professor Justin Driver has written a book that is stunning in its originality and insights. He carefully shows the weaknesses in both the conservative critiques and the liberal defenses of affirmative action. Most important, he offers a concrete path forward for universities to pursue diversity while being consistent with the Supreme Court’s rulings.” —Erwin Chemerinsky, Dean of University of California, Berkeley School of Law “Always read Justin Driver, one of our foremost thinkers on law and education—especially now, when so much is unsettled in this enormously consequential domain of American life. This book is full of insight, trenchant analysis, and provocative questions about what the loss of affirmative action means.” —Emily Bazelon, author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration “Justin Driver wields one of America’s most agile legal minds, and this important book shows it. In the face of affirmative action’s demise, he does something rare: offers clear-eyed, workable ideas to help American higher education pursue its highest ideals.” —Franklin Foer, author of The Last Politician: Inside Joe Biden's White House and the Struggle for America's Future