Before the Supreme Court ended race-conscious admissions, Harvard had a majority-minority student body and twenty-two times as many rich students as poor ones; 71 percent of its Black and Hispanic students came from the richest fifth of those populations. "Racially integrated but economically segregated," says Richard Kahlenberg, and not, in his view, a progressive result. He spent decades arguing that selective colleges should give a leg up to low-income and working-class applicants of every race, and then did something few liberals would: he testified for the plaintiffs in Students for Fair Admissions v. Harvard.
In this TalksOnLaw interview, Joel Cohen speaks with Richard Kahlenberg, Director of Housing Policy and of the American Identity Project at the Progressive Policy Institute, a lecturer at George Washington University, and author of Class Matters: The Fight to Get Beyond Race Preferences, Reduce Inequality, and Build Real Diversity at America's Colleges, about what the 2023 decision allows, what universities are doing with it, and why he expects the far right's next target, economic affirmative action, to survive.
Race, Class, and What the Data Show
Kahlenberg traces the idea of class-based affirmative action to Martin Luther King Jr.'s "Bill of Rights for the Disadvantaged," Robert Kennedy, and Justice William O. Douglas, and explains why he parted ways with civil rights allies such as Theodore Shaw (see Understanding SFFA v. Harvard): given permission to use both race and class, universities used race and ignored class, because full-pay students of every color are cheaper than financial aid. He walks through Sean Reardon's finding that the rich-poor achievement gap, once half the size of the Black-white gap, is now twice as large; the decline in racial segregation and the doubling of economic segregation since the Fair Housing Act; and polling showing 74 percent of Americans, including a majority of Black respondents, oppose considering race in admissions while supporting a break for the economically disadvantaged by two to one. He also addresses the "two white men" objection directly.
Inside the Harvard and UNC Cases
Kahlenberg describes his testimony: that racial diversity matters (a point UNC's lawyer cited at oral argument) but that Harvard and UNC could achieve it by dropping legacy and faculty-child preferences and boosting economically disadvantaged applicants, at a cost both schools said they could not afford, until UNC announced a major aid initiative two weeks after losing. He explains the simulations at the center of the case (Black share falling from 14 to 10 percent under a class-based model, without wealth data) and why Harvard could never say why 14 was right and 10 was wrong. He recounts the evidence he found hardest to read: the "personal" ratings that penalized Asian American applicants, the UNC text messages ("if it is black and has SAT above 1300…"), and Harvard's numerical scores for a family's capacity to donate, including the art collection and the building. He explains what the Court still permits (an applicant's own experience of discrimination, judged as evidence of grit and applied to every race), why a preference for students from historically segregated towns probably would not pass, and why counting wealth and neighborhood poverty, not just income, is what makes a class-based system both fair and racially diverse.
The Next Fight: Is Class a Proxy for Race?
The conversation turns to the Pacific Legal Foundation's challenge to Thomas Jefferson High School's socioeconomic admissions plan as "proxy discrimination," the Fourth Circuit's rejection of that theory, and the Supreme Court's refusal to hear the case over a sharp dissent from Justices Alito and Thomas, which Kahlenberg reads as a sign that the Court's other conservatives will not follow. He distinguishes genuine proxies (a preference for descendants of the enslaved, or misuse of the essay) from economic affirmative action, and extends the analysis to government contracting, entry-level hiring, intermediate scrutiny for sex (where the quiet preference now runs toward men), middle-class applicants (Harvard counted the bottom two-thirds of American families as "disadvantaged"), and legacy admissions, which he says persist at every Ivy and would be more honestly replaced by an auction. He closes with his prediction: the doors of elite higher education are opening for a third time, this time to working-class students of all races.
What to Know Now
The proxy-discrimination theory has lost twice more at the Supreme Court: after denying review in the Thomas Jefferson case in February 2024, the Court declined in December 2024 to hear a challenge to Boston's exam-school plan, again over a dissent from Justice Alito. A new suit against the University of California alleging that its race-neutral admissions are a covert racial preference was filed in 2025 and is pending. Five states now bar legacy preferences at public colleges (Colorado, Virginia, Illinois, Maryland, and California), and California's and Maryland's laws reach private institutions, so Stanford and USC dropped legacy preferences in 2025. The Trump administration has pursued the issue from the other direction: an August 2025 presidential memorandum directed colleges to report admissions data by race and sex, seventeen states sued, and in April 2026 a federal judge in Boston preliminarily enjoined the reporting deadline as "rushed and chaotic" while leaving the government's underlying authority to seek the data intact. The Justice Department separately sued Harvard in February 2026 to compel production of applicant-level admissions records. Early post-SFFA data show Black enrollment down at several elite colleges and Asian American enrollment up, with Pell-eligible and first-generation shares at record levels at some, the shift Kahlenberg predicted.
