The war over affirmative action in college admissions has entered a new phase.
For decades, conservatives have campaigned against racial preferences while saying they favor race-neutral strategies for achieving racial diversity, such as giving a boost to economically disadvantaged students of all races. Now, however, the Trump administration is moving the goal posts. Their new stance is that class-based affirmative action is also illegal if it is aimed at promoting racial integration. In late July, the Department of Justice issued a stunning memorandum declaring that “criteria like socioeconomic status, first-generation status, or geographic diversity must not be used” if a university’s goal is to further racial diversity on campus.
The move represents a major blunder by the Trump administration — and a significant opportunity for colleges. By expanding its opposition to racial preferences to now include preferences for economically disadvantaged students, the administration moves from a strong political position to a very weak one. Furthermore, the attack on economic affirmative action will almost surely lose in court. The administration’s overreach gives colleges, which have been playing defense for years, a chance to finally put Trump on the hot seat. They should press the question: Why, exactly, is Trump seeking to end economic affirmative-action programs that benefit working Americans of all races?
In many of the battles Trump has waged on higher education, he has had the upper hand politically. A 2022 Pew Research Center poll found that 74 percent of Americans opposed using race as a factor in admissions, a practice then widely employed by selective colleges. Large majorities of Americans supported the 2023 U.S. Supreme Court decision in Students for Fair Admissions v. Harvard that struck down the use of racial preferences. In requiring colleges to disclose racial-admissions data related to grades and test scores to help discern whether they are following the law, therefore, Trump seems on safe political ground.
The attack on economic affirmative action contains no underlying truth to it, and no real political advantage for Trump.
Polling has long shown that Americans are particularly irked when economically privileged Black and Hispanic students benefit from racial preferences. That’s why Barack Obama said his own daughters did not deserve a preference in college admissions. And yet well-off Black and Hispanic students are precisely who tended to benefit from racial preferences at elite universities like Harvard. Research that the Duke University economist Peter Arcidiacono and I conducted as expert witnesses for Students for Fair Admissions found that nearly 75 percent of Harvard’s Black and Hispanic students came from the most privileged 20 percent of Black and Hispanic populations nationally. (The white and Asian students were even wealthier.) Trump understandably sees a juicy target in elite colleges that represent a politically toxic brew of great wealth and privilege, on the one hand, and an air of smug morally superiority on cultural issues, on the other.
Trump’s new attack on colleges for using economic affirmative-action programs for working-class students of all races, by contrast, flips that political dynamic completely. Wealthy Black and Hispanic students do not benefit from class-based affirmative action. The Black and Hispanic students who do benefit — those from disadvantaged and working-class families — are the very students who are the most politically sympathetic to American voters. And economic affirmative action for the first time benefits working-class white and Asian students, who are also seen as deserving.
Polls show that Americans support, by a substantial margin, colleges giving a break to these economically disadvantaged students of all races. Majorities support “true merit,” which recognizes that, in assessing a student’s potential, it would be absurd to ignore whether a high SAT score was achieved by a student who attended a poorly funded school and worked two jobs to help support their family or by a student who attended a fancy boarding school and was the beneficiary of private tutors.
The fact that a disproportionate share of those who benefit from economic affirmative action are Black and Hispanic — something this administration characterizes as a troubling form of “proxy discrimination” — is seen by most Americans as a plus, not a reason for suspicion. So long as racial preferences are not employed as a means, most Americans indicate they support racial diversity as an end.
As a legal matter, Trump’s assault on class-based affirmative action is almost surely doomed. Courts have long held that while distinctions based on race are presumptively problematic, distinctions based on income are broadly permissible. For example, the progressive income tax, which imposes a higher marginal tax rate on the wealthy, presents no constitutional problem, while a tax system that imposes a higher marginal rate on white people than Black people would likely be struck down.
When I testified against Harvard for Students for Fair Admissions, I explained that economic affirmative action was the right way to create racial diversity. “If we’re going to agree on one thing,” Edward Blum, president of Students for Fair Admissions, told The New York Times, “it is that colleges and universities should consider lowering the bar a little bit for kids from disadvantaged backgrounds, who are maybe the first in their family to attend college, who come from very modest if not low-income households.”
In the oral arguments in the Supreme Court, SFFA’s lawyer, Patrick Strawbridge, said that while the organization would likely oppose “a pure proxy for race” such as a preference for the descendants of those who were enslaved, other programs — such as socioeconomic or geographic preferences — would be legal because there would be a “race-neutral justification” for adopting those plans. Strawbridge declared, “If the only reason to do it [adopt a race-neutral strategy] is through the narrow lens of race and there is no other race-neutral justification, that’s the only scenario where it would create problems.”
Conservative justices also gave the green light to class-based affirmative action. In his concurring opinion in the Students for Fair Admissions case, Justice Neil Gorsuch pointed favorably to my expert testimony that “Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: 1. provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and 2. eliminated tips for the children of donors, alumni, and faculty.” Gorsuch appeared to be laying out a roadmap for the proper way to achieve diversity.
When a different conservative group, the Pacific Legal Foundation, invited the Supreme Court to take a case arguing that considerations of geography and economic disadvantage at a selective high school, Thomas Jefferson High School for Science and Technology, in Virginia, constituted “proxy discrimination,” the Supreme Court refused in February 2024. Only Justices Samuel Alito and Clarence Thomas expressed support for going down that road. The Supreme Court also refused to hear a similar challenge to economic affirmative action at Boston’s “exam schools” in December 2024.
Far from presenting a legal risk, the use of economic affirmative action provides an important affirmative defense for colleges accused of defying the Students for Fair Admissions decision. Suspicions are high because in the Harvard litigation, colleges made the mistake of falsely claiming that racial preference was the only path to racial diversity. A brief filed by about 30 liberal-arts colleges, for example, predicted that, absent racial preferences, Black student admissions would drop to 2.1 percent at selective colleges, a return to “early 1960s levels.”
But that doesn’t appear to be happening. Selective colleges adopted new financial-aid programs, and a number of them adjusted their admissions policies in a manner that resulted in record levels of socioeconomic diversity. At Princeton University, Dartmouth College, the University of Virginia, the University of Pennsylvania, Yale University, Duke University, and Emory University, racial diversity remained roughly the same in 2024 despite the 2023 Supreme Court ruling. Williams College, Bowdoin College, Bates College, and the California Institute of Technology all saw increased Black enrollment. If colleges can’t explain good racial results by pointing to class-based affirmative action, the suspicion of cheating would be greatly elevated.
Some will argue, correctly, that Trump doesn’t need to be right on the law to win settlements with colleges. He can bludgeon them into submission by withholding federal research funds as legal cases slowly wind their way through the courts. Trump has used this approach to win major concessions from Columbia and Brown Universities and the University of Pennsylvania. Will this tactic work in his new assault on economic affirmative action? I don’t think so, for three reasons.
First, Trump’s attacks on colleges for allowing antisemitism to fester, for employing racial preferences in hiring faculty, and for lacking viewpoint diversity all have more than a kernel of truth to them. Trump’s methods are reprehensible; he cuts funding without due process, which is why a university defense can prevail in the courts. But on the underlying substantive issues, colleges are vulnerable. On these issues, Trump knows he can score political points, and colleges have an incentive to settle because they know, deep down, that reform is necessary. The attack on economic affirmative action, by contrast, contains no underlying truth to it, and no real political advantage for Trump.
Second, in the settlements to date, colleges have paid ransoms, and they’ve agreed to disclose data about admissions, but they have rebuffed Trump’s efforts to dictate legally permitted admissions decisions. That’s a red line that Trump is crossing in saying a college can’t give an admissions break to economically disadvantaged students.
Third, to their credit, college leaders believe deeply in the value of racial diversity. Furthermore, colleges have strong internal constituencies who will fight for it. As a result, colleges are unlikely to bargain away the right to use economic affirmative action, which represents the most legally sound method available to achieving their goals.
Trump’s efforts to attack class-based affirmative action as “proxy discrimination” is likely to fail politically and legally, and bullying for this cause is unlikely to work either. The fundamental problem with Trump’s concern that colleges are using “class as a proxy for race” is that it gets the logic backwards. For most Americans, race is always a poor proxy for what matters most — a student’s economic disadvantage. Now that colleges are beginning to provide meaningful consideration to disadvantage itself, Americans are less likely to be upset with them than to wonder: Why hadn’t they been taking this approach all along?
