Twenty-five years ago, in an episode of Larry David’s “Curb Your Enthusiam” television series titled “Affirmative Action,” the comedian’s friend Richard Lewis introduces him to Dr. Grambs, a Black dermatologist. “You let him work on you,” David jokingly asks, “even with the whole affirmative action thing?” Grambs responds that he’s “worked too hard and too long at this” to have his qualifications demeaned because of his race.
Footnoted in Justin Driver’s new book, “The Fall of Affirmative Action: Race, The Supreme Court, and the Future of Higher Education,” this episode captures Americans’ discomfort around the topic. Advocates have long seen it as necessary to open doors closed to members of underrepresented groups. Critics insist it stigmatizes recipients and discriminates against Whites by substituting race for merit as a basis for admission to educational and professional opportunities.
Support for affirmative action has waxed and waned since the 1960s. Civil rights advocates helped make it the policy of the federal government and many states, corporations, colleges and universities. In the ensuing decades, however, opposition grew, as the practice became increasingly associated with preferential treatment, quotas and set-asides.
In 1978, Allen Bakke, a White man, alleged he had been denied admission to the University of California at Davis medical school in favor of less qualified minority applicants. In Regents of the University of California v. Bakke, the Supreme Court ruled that colleges and universities could rely on affirmative action to recruit a diverse class and thereby enrich the learning environment for all students.
For more than 40 years, despite legal challenges and an erosion in public support, Bakke remained the law of the land. But two years ago, in Students for Fair Admissions v. Harvard, six Supreme Court justices held that affirmative action in admission to colleges and universities violates the 14th Amendment’s Equal Protection Clause.
For conservatives, the decision marked an end to racial preferences; for liberals, it was an end to the most effective means to achieve racial equality.
Driver’s brief, informative and accessible volume assesses the decision’s impact. Although the author maintains that there are ways to “avoid returning to bygone days, when Black students seldom walked the courtyards of power,” his book underscores the daunting challenge supporters of affirmative action face. As recent developments demonstrate, any initiative must not only pass constitutional muster, but also overcome the Trump administration’s determination to kill all racial preferences and diversity, equity and inclusion programs.
Driver makes a compelling case that affirmative action “succeeded in transforming American society for the better,” bringing significant numbers of Black students to elite universities and making “clear that Black people belonged in the most rarefied segments of American society.” And he challenges the contention of some members of the Supreme Court’s conservative majority that affirmative action puts high school students with mediocre academic records into colleges where they struggle academically, fosters a victim mindset, and “produces racial resentment and balkanization.” But his goal is not to defend affirmative action solely in traditional liberal terms.
Driver maintains (though not always persuasively) that “even as viewed by [conservatives’] own preferred lights,” the Students for Fair Admissions Inc. v. Harvard decision will “create a less desirable admissions regime than the old affirmative action model it replaced.” Because the ruling allows colleges and universities to consider personal essays that highlight how race has affected an applicant, “be it through discrimination, inspiration, or otherwise,” Driver contends, it will incentivize students to produce narratives that “utilize the victimhood mindset that conservatives loathe” and undermine their claim that “America has witnessed tremendous strides toward the goal of racial equality.”
Driver also suggests that the Students for Fair Admissions decision may lead colleges and universities to admit more Black students at the top of their class at “large, underprivileged urban high schools, ”and fewer students a little lower in their class at prestigious private schools, with the unintended consequence of luring “many Black students into alien settings where they are set up to fail.”
Liberals often defend affirmative action by insisting that the 14th Amendment only bars racial classifications that disadvantage minorities. But as Driver points out, Students for Fair Admissions turned this interpretation on its head, with plaintiffs arguing that affirmative action disadvantages Asian Americans.
But contrary to the extreme interpretation adopted by the Trump administration, Students for Fair Admissions does not preclude all consideration of race in admissions — only consideration of “race for race’s sake.” Driver therefore suggests several avenues for pursuing diversity going forward.
One is to offer an admissions preference “to all applicants who identify as the descendants of slaves,” a category that is not, at least formally, race-based. Another is to “adopt preferences for immigrants,” who are disproportionately non-white. And a third, affecting far fewer applicants, is to give preferences to members of Native American tribes.
But these suggestions seem to be non-starters. They present serious problems of implementation, including defining criteria and verifying eligibility. More importantly, a sizable majority of Americans will almost certainly object to these proposals as thinly veiled race-conscious measures.
Nor are many colleges and universities eager to put themselves directly in the Trump administration’s crosshairs. In a nine-page memo released in July, the Justice Department threatened to strip colleges and universities of federal funding if they pursue DEI policies, including through the use of “ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex, or other protected characteristics.” And in August, the administration required colleges and universities to share admissions data to ensure they do not secretly use racial proxies to evade the Supreme Court’s precedent, a requirement also incorporated into settlement agreements with Columbia and Brown.
Surprisingly, Driver does not discuss more common race-neutral strategies, such as partnerships with community-based organizations, community college transfer programs, and targeted recruitment.
It is important to note that the Supreme Court did not act in isolation on the issue. The Students for Fair Admissions majority, which included three appointees from Trump’s first term, is built on substantial — and growing — criticism of affirmative action, including a blanket prohibition already passed by 10 states. And the court’s ruling has been bolstered and extended immeasurably by the Trump administration.
In a world after Students for Fair Admissions, David’s joke no longer lands, but our nation will be the poorer for it.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.
