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In November 2020, with the Covid-19 pandemic raging, I took off my mask and sat down nervously in the witness stand at the federal district courthouse in Winston-Salem, North Carolina.
I was there to testify as an expert witness for Students for Fair Admissions (SFFA), a conservative group challenging racial preferences at the University of North Carolina. (SFFA and I were also involved in a parallel suit against Harvard University.) I would be testifying that racial student body diversity is very important to achieve on college campuses, but that, according to my research, UNC-Chapel Hill could create an integrated campus without using race — if it jettisoned its preferences for privileged children of alumni and faculty and gave a meaningful admissions boost to economically disadvantaged students of all races.
This was a very unusual position for me to be in. Over the years, I’d allied myself closely with civil rights groups and leading Black officials — from civil rights activist and attorney Maya Wiley to politicians like Sen. John Lewis (D-Ga.) and President Barack Obama’s Education Secretary John B. King — on issues of schooling, housing and employment. But on the issue of whether preferences at elite colleges should be based on race or class, I was on the opposite side from many of my friends — and I had joined with an unlikely group: the deeply conservative attorneys of the law firm Consovoy McCarthy. A few had clerked for Justice Clarence Thomas, and one was representing Trump to keep his tax returns private. Students for Fair Admissions was the brainchild of conservative activist Edward Blum, who had challenged a key section of the Voting Rights Act — litigation with which I strongly disagreed. Many of my liberal friends were mystified, even appalled, that I decided to help them.
I had long been convinced, however, that there was a better way to achieve the valid goals of racial affirmative action. I agreed with my liberal friends that campuses needed to be racially integrated. It is crucial that in a multicultural democracy students learn to appreciate and value individuals of all backgrounds. And I agreed that the nation had to take steps to remedy a terrible history of racial oppression. But giving a break to economically disadvantaged students, the evidence showed, could help universities do both without all the divisiveness and unfairness associated with counting skin color in who gets ahead.
The UNC case data vividly showed that precisely because of the legacy of discrimination in America, Black and Hispanic students would benefit disproportionately from an approach based on class. So would poor white and Asian students. The policy would also have a powerful effect on politics: Whereas racial preferences divided working-class white and Black people in a way that advanced conservative interests, economic preferences would remind the groups of their common challenges.
Advocates saw UNC as championing social justice by teaming up with civil rights groups. But the dirty little secret of higher education in the United States was that admissions systems mostly benefited the wealthy. The framework of race-based preferences disproportionately aided upper-middle-class students of color and sustained a system of favoritism for children of alumni, wealthy donors and the offspring of faculty. The racial diversity affirmative action produced gave the impression that the larger system was fair. But in fact, UNC, which prided itself on its politically progressive values and called itself the “university of the people,” had 16 times as many wealthy students as it did students from low-income backgrounds.
Elite universities maintained that ending affirmative action would be “catastrophic for the presence of marginalized racial groups on the nation’s leading campuses,” as Yale Law professor Justin Driver wrote in the New York Times. Some universities have indeed seen racial diversity decline. But following the Supreme Court decision ending racial affirmative action in admissions, many other schools have seen racial diversity remain steady or even increase — and they’ve drastically improved their numbers with working-class students. Harvard, for example, tripled its share of first-generation college students from 7 percent to 21 percent between the time the litigation was filed and 2024.
My testimony worried my liberal friends and colleagues. But the evidence that has come out since I unmasked in that courtroom four years ago has made me more certain than ever: Ending racial affirmative action was the right thing to do — especially if you believe in diversity.
I had tried for years to work within the Democratic Party to get colleges to shift from racial to economic affirmative action. Indeed, my inspiration for class-based affirmative action came from Democratic New York Sen. Robert Kennedy, who fought hard to dismantle racial discrimination through passage of landmark civil rights legislation, but who came to believe that the next fight would be economic in nature. “You know, I’ve come to the conclusion that poverty is closer to the root of the problem than color,” Kennedy told journalist Jack Newfield in his book, RFK: A Memoir. Kennedy was arguably tapping into a vein of thought also championed by Dr. Martin Luther King Jr., who said the best way to address the nation’s legacy of racism was not to create a narrow Bill of Rights for Black People, but instead to institute a more inclusive Bill of Rights for the Disadvantaged.
In the mid-1990s, I thought President Bill Clinton might move the federal government toward a system of affirmative action for the economically disadvantaged. Following the disastrous 1994 midterms, Clinton said he was exploring the idea of shifting from race-based to economic-based affirmative action. After I wrote a story in the New Republic about the idea, Joel Klein, a Clinton aide and future chancellor of New York City schools, called me to find out more. It was a false start, though. Jesse Jackson threatened to run for president in 1996 if Clinton didn’t “stand firm” on affirmative action, and Clinton quickly backed down.
When Obama ran for president in 2007, my hopes were raised again when he said his own daughters did not deserve a racial preference and that working-class students of all colors did. After his election, I followed up with one of his top aides, Cassandra Butts, who was also Obama’s law school classmate. She reported back that because of interest-group politics, Obama could only implement the shift “if the courts forced him to.”
In the end, that’s what led me to my unusual alliance with Blum, the conservative activist — and my testimony in the Harvard and UNC cases.
Students for Fair Admissions lost in the lower courts, but in June 2023, the Supreme Court struck down racial preferences in a decisive 6-3 vote. President Joe Biden, who installed busts of Kennedy and King in the Oval Office, announced to the nation that colleges should adopt a “new standard” to reward students who had overcome “adversity.”
Some were skeptical that colleges would ever adopt such programs. But soon after the Students for Fair Admissions decision, colleges began announcing new strategies that grew into a steady stream.
To begin with, many colleges declared that they were doing away with practices that tended to benefit white and wealthy students at the expense of low-income and minority students. Numerous schools announced they were ending legacy preferences. Early admissions policies, which create a separate entryway for students who apply early in the cycle and tend to favor the wealthy, also came under attack: Virginia Tech ended its early decision program, and Wake Forest decided to allow only first-generation college students to apply early in the process.
In addition to eliminating detrimental practices, a number of universities adopted new economic affirmative action strategies. About a week after the court’s ruling, UNC announced that it would provide free tuition to every North Carolina undergraduate coming from families making less than $80,000 a year — in a state where the median household income is roughly $61,000. Duke offered free tuition for North and South Carolina students from families with incomes of less than $150,000. Many others significantly expanded financial aid.
Some schools pursued diversity in new ways. For instance, the University of Virginia unveiled a new plan to enhance recruitment at 40 high schools that had historically sent few applicants. Percentage plan approaches, modeled after Texas’ Top 10 Percent plan — which gives anyone who graduates in the top 10 percent of their high school class automatic admission to state schools — also became more popular, including in deep red states where supporters of racial preferences had feared universities would give up on racial diversity. Texas’ plan actually produced slightly more racial diversity than racial preferences. The share of Black students increased from 4.1 percent to 4.5 percent and the share of Hispanic students from 14.5 percent to 16.9 percent.
Princeton University announced that “in the changed legal environment, the University’s greatest opportunity to attract diverse talent pertains to socioeconomic diversity.” It committed to increasing the proportion of students receiving financial aid to at least 70 percent, increasing its Pell Grant percentage — a federal grant awarded to undergraduates based on financial need — to at least 22 percent and boosting the number of students transferring from community colleges. In the fall of 2023, the National Student Clearinghouse, a nonprofit that provides education data, found that “highly selective institutions” increased their enrollment of community college transfer students by 13.3 percent from low-income neighborhoods and 20.4 percent from middle-income neighborhoods.
Forecasting about the end of diversity on campus largely proved to be unfounded.
U.C. Berkeley’s David Card predicted Black shares at Harvard from the class entering in 2015 would drop from 14 percent to 6 percent. But as the numbers began to roll out in 2024, it became clear that many selective colleges maintained high levels of racial diversity. At Harvard, the figure reported was 14 percent, a modest decrease from the previous year. (A change in the number of students who did not report their race led Harvard to change its methodology around tracking these figures, so while the 14 percent statistic would appear static, it actually accounts for a decline of roughly 4 percentage points.) Hispanic representation actually grew from 14 percent to 16 percent, and Asian representation held steady at 37 percent. That appears to be in part because it adopted at least parts of the playbook on race-neutral alternatives that I advocated during the litigation — such as increasing first-generation college students. At least 11 other elite universities, including Yale, Princeton, Dartmouth and the University of Virginia, reported that their diversity remained roughly the same as before the Supreme Court decision.
To be sure, some selective institutions saw significant drops in Black enrollment. MIT, Johns Hopkins, Brown, Columbia and Amherst all saw declines. While MIT tried to put the blame on the Supreme Court, the list of institutions that were much more successful in sustaining diversity suggested colleges that fell short were not without blame. MIT’s president Sally Kornbluth acknowledged, “We need to seek out new approaches.”
The million-dollar question became: Why did so many universities succeed in maintaining racial diversity where some others failed?
It is difficult to know for sure what went on behind closed doors because admissions processes remain notoriously opaque. It is quite possible that some colleges have been exploiting the decision’s personal essay loophole — which allows a university to consider discussions of race in essays — in a way not intended by the Supreme Court. Under the ruling, if a university gives credit to a Black student for overcoming discrimination because the institution admires grit, they must also value grit shown by an Asian student who overcame discrimination, or a white student who overcame poverty. Justice Sonia Sotomayor and other dissenting liberals called the provision “lipstick on a pig.” Litigation will likely expose any cheating.
What is clear is that the move toward economic affirmative action has been hugely successful. The University of Virginia, for example, increased its share of Pell Grant eligible students from 14 percent five years earlier to 24 percent. At Duke, the share of Pell students doubled in just two years, from 11 percent to 22 percent. Enhancing economic diversity, Duke’s admissions dean Christoph Guttentag said, “was clearly helpful to us in terms of racial diversity in enrollment.” He said, “I think there will be considerable interest this coming year from colleges in thinking about what was successful and how to recreate that.” Yale and Dartmouth both broke records for first-generation and low-income student representation.
Moving forward, there is an additional reason for universities to adopt legal, race-neutral strategies to achieve diversity: political necessity.
Higher education, particularly elite higher education, is in political trouble. In the past few decades, the erosion of support among Republicans has been particularly dramatic. Between 2015 and 2023, the proportion of Republicans who said they had a “great deal” or “quite a lot” of confidence in higher education declined from 56 percent to less than one in five. The top reason Republicans cited for losing their faith was that colleges had become “too liberal/political.” (At top liberal arts colleges, one study found Democrats outnumbered Republicans by 48 to one among English department faculty members, and 17 to one among philosophy, history and psychology professors.)
Democrats have remained more supportive of higher education, but that sympathetic attitude could erode if universities don’t take steps to ensure they remain racially inclusive. If elite higher education does not retain the support of progressive Democrats, their armament against Republican attacks will disappear.
Today, the Trump administration has threatened to cut off federal funding not only to universities employing racial preferences but also to those using race-neutral efforts to “increase racial diversity.” The administration cited as an example a university that eliminated standardized testing. While Trump has not targeted economic affirmative action programs directly, the same logic would arguably apply to such policies. After all, my entire argument is that they boost both class and racial diversity. Thankfully, however, when a conservative group attacked a selective high school in Virginia for adopting a race-neutral plan to boost the chances of admissions for economically disadvantaged students and those in the top percentage of their middle schools, the Supreme Court declined to take the case over the withering dissent of just two very conservative justices.
Because of Trump’s attacks, my interest in defending class-based affirmative action is now aligned with those of civil rights leaders. Still, resentments linger on their part. I am no longer asked to speak at the same conferences or serve on the same boards as I once was.
But that’s a very small price to pay for my involvement in the Students of Fair Admissions case. Paradoxically, it took a conservative U.S. Supreme Court decision on race to spur colleges to take the liberal action of beginning to open their doors to more working-class students of all races.
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