Advisory Opinions — “The Fall of Affirmative Action | Interview: Justin Driver”

Podcast: Advisory Opinions (The Dispatch)
Episode Date: September 23, 2025
Guests: Professor Justin Driver (Yale Law School)
Hosts: Sarah Isgur, David French

Episode Overview

This episode focuses on recent legal and political controversies surrounding the DOJ and FCC, then pivots to a substantive, nuanced interview with Professor Justin Driver of Yale Law School, centering on his new book, The Fall of Affirmative Action. The discussion not only explores the Supreme Court's landmark decision in Students for Fair Admissions (SFFA) v. Harvard, but also interrogates longstanding intellectual frameworks about equality, race, and education in America. The hosts and Professor Driver critically examine both liberal and conservative goals for affirmative action, engaging with the real-world impact and future of race-conscious and race-neutral admissions policies.

Key Segments and Discussion Points

1. Presidential Interference in DOJ Prosecutions

[02:37 – 14:59]

• Sarah Isgur reads and dissects public social media posts by President Trump suggesting direct political interference in federal prosecutions, notably attempting to target political opponents such as Adam Schiff and referencing the appointment of allies to prosecutorial roles.

  • Quote (Sarah) [03:30]: “…this obviously is a big deal. This is the President of the United States directing the prosecution of anyone—directing the prosecution of someone he says is his political opponent. Second big deal. And that the reason is that they impeached me twice and indicted me over nothing…”

• David French situates the moment both historically and legally, arguing that public, blatant attempts to manipulate prosecutions based on political grievances represent “a difference in kind and degree” from past scandals.

  • Quote (David) [07:07]: “This is so very brutally direct… people have been so conditioned to believe that corruption is accompanied by secrecy, that when corruption is transparent, they don’t think it’s corruption.”

• Both hosts discuss the legal mechanics of grand juries and speculate about whether grand juries might act as a check when prosecutions are overtly politicized.

  • Quote (Sarah) [09:28]: “…are we about to see grand juries play an actual role in federal criminal process? …they wanted to send a message that they were going to refuse to indict, not that it didn’t meet the technical aspects…”
  • Quote (David) [12:50]: “…how many juries are going to convict with that truth social post out there?”

2. Government Coercion and Freedom of Speech

[15:53 – 22:16]

• Hosts turn to recent comments by FCC Chair Brendan Carr as an example of “saying the secret part out loud” — openly threatening regulatory retaliation unless companies change their conduct, specifically in response to speech by Jimmy Kimmel.

  • Quote (Sarah) [15:53]: “…he said, ‘We can do this the easy way or the hard way.’ These companies can find ways to change conduct and take actions on Kimmel or there’s going to be additional work for the FCC ahead.”

• David French reviews the standard for government coercion of private speech and relates it to the Supreme Court’s “jawboning” cases, warning that both subtle and explicit government threats to speech are constitutionally dangerous.

  • Quote (David) [19:15]: “…in Murthy v. Missouri, [the Supreme Court] did not say that everything the Biden administration did was fine… if you’re filing a lawsuit [against Carr], it’s probably going to get to your trier of fact…”

3. Interview: Professor Justin Driver — “The Fall of Affirmative Action”

[22:16 – 54:18]

a. Foundations of Equal Protection and Affirmative Action

[23:54 – 29:17]

• Professor Driver gives a lucid “Law School 101” on the Equal Protection Clause, outlining two major interpretive camps:

  • Anti-classification: Forbids all racial classifications (conservative argument).
  • Anti-subordination: Forbids systems that reinforce racial hierarchy (liberal argument).
  • Quote (Driver) [23:54]: “The anti-classification idea of the 14th Amendment is one… associated with conservatives who would say affirmative action is prohibited because it involves racial classifications… Liberals have subscribed to an anti-subordination theory… it’s designed to uplift black people.”

• He notes how Justice Thomas’s rhetorical strategies blur these categories and how even pro-affirmative-action scholars admit elements of subordination may exist.

b. SFFA, Asian American Plaintiffs, and the “Fixed Pie” Problem

[25:57 – 29:17]

• David French pushes on whether “classification is subordination” in zero-sum admissions.

  • Quote (French) [25:57]: “…doesn’t classification in the admissions context… mean subordination? …the way that the plaintiffs were so compelling in the Harvard case… this was another historically disadvantaged minority of Asian students…”

• Driver responds that anti-subordination arguments are at the center of the SFFA case, pointing out parallels with quotas used historically to disadvantage Jewish and now Asian applicants.

  • Quote (Driver) [26:54]: “…to understand the arguments from Students for Fair Admissions, you have to bring anti-subordination to center stage… these students are not well-rounded, they’re grinds… and you don’t want too many of these types…”

c. Conservative Goals vs. Real-World Outcomes of SFFA

[29:17 – 36:57]

• Sarah Isgur prompts Driver to explain why SFFA (the end of race-conscious admissions) may undermine both conservative aspirations (e.g., reducing “victimization” and mismatch).
• Driver explains SFFA incentivizes “performing racial trauma” in essays, may exacerbate feelings of victimization, and could heighten mismatch by changing the make-up of admitted students.
  • Quote (Driver) [30:08]: “Under the new regime, because universities are… forbidden from accessing the racial checkbox… black applicants are overwhelmingly incentivized to write essays that sound in racial woe… performing their racial trauma.”

d. Race-Neutral Mechanisms: Are They At Risk?

[36:57 – 39:35]

• French and Driver discuss “race-neutral” alternatives (e.g., Texas top-10% rule) and legacy preferences.

  • Quote (Driver) [36:57]: “…I believe no is the answer to that question right now… the Supreme Court has repeatedly upheld the racial box checking… people have not said that the Texas 10% plan violates the Equal Protection Clause…”

• Driver asserts that eliminating legacy preferences does not meaningfully advance diversity, as declines in Black enrollment post-SFFA occurred even at institutions without legacy admissions.

e. Will SFFA Change Campus Demographics?

[39:35 – 44:52]

• Isgur raises the common view that deeply embedded practices aren’t changed by SCOTUS decisions alone, comparing post-SFFA predictions to reaction after Brown v. Board.

  • Quote (Isgur) [39:35]: “…you could sub in the word segregation there… entrenched, it doesn’t matter what the Supreme Court says…”

• Driver: The impact of SFFA is immediate and severe; MIT, Amherst, and other elite institutions saw Black enrollment plummet by two-thirds or more.

  • Quote (Driver) [43:44]: “…MIT went from 15% Black to 5% Black. Amherst went from 11% to 3%… I think that we are looking at a lost generation of Black students at many colleges.”

• They debate if these numbers may be a temporary “blip” or a sign of deeper, lasting change.

f. Perceptions, Meritocracy, and the Messy Reality of Admissions

[44:36 – 54:18]

• Discussion shifts to how the loss of affirmative action may erase stigma for successful Black students, but also shrink their numbers—potentially worsening isolation.

• Driver tells stories illustrating stigma, essentialization, and misperceptions (“pretty good job for a Black person”).

  • Quote (Driver) [44:52]: “…the Black students who are there are so small in number… they say they’re not even thought of as students… we’re not invited to their study groups, they don’t think we’re smart enough to make it…”

• French notes that admissions, even pre-affirmative action, were hardly a pure meritocracy: nepotism, favoritism, and discrimination were widespread.

  • Quote (French) [49:00]: “Meritocracy. Then comes affirmative action to disrupt the meritocracy… You remove affirmative action, we’re back to meritocracy. No, not at all. Not remotely.”

• Driver warns current attacks on universities, especially by the populist right, will ultimately harm students from modest backgrounds as schools become more focused on financial ability to pay.

  • Quote (Driver) [51:27]: “The idea that there are too many Black students on fancy college campuses is not among our profound difficulties… I fear that’s going to make elite higher education only further out of reach for people from modest circumstances…”

Notable Quotes

• “Corruption is accompanied by secrecy, that when corruption is transparent, they don’t think it’s corruption.”
  —David French [07:07]

• "Under the new regime... black applicants are overwhelmingly incentivized to write essays that sound in racial woe. What students these days talk about: performing their racial trauma."
  —Justin Driver [30:08]

• "I think that we are looking at a lost generation of Black students at many colleges. And that's going to have cascading consequences for American society."
  —Justin Driver [43:44]

• "If you’re looking at a white dude in Harvard, that he absolutely earned his spot. That presumption is false... the sausage is made in very bloody ways, even apart from the race question."
  —David French [49:00]

Timestamps for Main Segments

| Topic | Start | End | |-----------------------------------------------|----------|----------| | Presidential Prosecution Controversy | 02:37 | 14:59 | | FCC and Government Bullying over Speech | 15:53 | 22:16 | | Interview: Prof. Justin Driver (Affirmative Action) | 22:16 | 54:18 | | Highlights from Book & Policy Implications | 23:54 | 54:18 |

Takeaways

• Presidential and government abuse of power remains a live threat to legal norms—transparent bullying is no less dangerous than covert action.
• Affirmative action jurisprudence is profoundly complex—legal, historical, and practical arguments swirl around anti-classification and anti-subordination frames.
• SFFA will have marked, measurable effects on campus diversity, and race-neutral alternatives are legally safe but not equally effective.
• Narratives of “meritocracy” in admissions are misleading; privilege and subjectivity shape outcomes regardless of formal policies.
• The next front in the legal battle may focus on both race-neutral efforts to boost diversity and the rising financial hurdles to elite education access.

Professor Driver’s Final Thoughts

• Affirmative action’s end may bring severe, immediate declines in student-of-color enrollment at elite colleges, contrary to the hopes of both conservative and liberal optimists.
• Ongoing legal, cultural, and political battles over equity in education will shape the future of American opportunity—universities and courts may be less decisive than broad political will.

This episode is an excellent primer and deep dive for anyone wishing to understand the practical legal and social transformation triggered by the end of affirmative action, the nuances often missed in pubic debate, and why these issues matter for the future of American society.