Supreme Court Affirmative Action 2013: We Still Have Structural Racism, So Why Shouldn't We Still Have Affirmative Action?


In an increasingly competitive college-admissions market, it is constitutional for universities to use racial preferences in admissions decisions? The Supreme Court of the United States will decide next week in the landmark case Fisher vs. University of Texas if affirmative action violates the Equal Protection Clause of the Fourteenth Amendment.

Minorities still aren’t equal to whites. Our government, and our judiciary, should interpret the Equal Protection Clause to fix the numerous societal problems that spawn out of inequality, not tolerate or aggravate them. The Constitution was written to protect those facing structural violence and injustice, not to preserve an old order of privilege or retard social progress.

Opponents of affirmative action in college admissions assert that, in a post-Civil Rights Era society, American legal codes and cultural norms have erased race as a principal determining factor in success. Their arguments often rely on the assertion that blatant racism has declined in occurrence and importance, and socioeconomic disadvantage has replaced race as the primary obstacle to advancement. 

They’re wrong. The research agrees. The continued existence of racism, racial discrimination, and inequity reflects not just racially biased attitudes (taste-based discrimination), but a slew of other phenomena: statistical discrimination, in which a person discriminates using preconceived notions of abilities linked to race; self-selecting discrimination, in which women, gays or ethnic minorities remove themselves from competitive processes because they don’t see people similar to them succeeding after pursuing similar jobs; and opportunity structure for discrimination, in which low oversight and monitoring create incentives for discrimination or deter reports of unequal treatment.

Opponents of affirmative action, such as Richard Sander, a law professor at UCLA, also argue that the University of Texas-Austin used racial preferences to achieve racial balancing of minority students in its classes, but oftentimes the students selected weren’t as prepared to succeed as white students. He argues that the racial preferences of universities set these students up for failure: they would be at the top of their class at a good state school, but when pushed to compete with privileged students at elite private universities, sink to the bottom of the class. He also argues they are also less likely to befriend students from other racial groups due to disparate academic preparation. “When colleges use large preferences, they interfere with social assimilation, and the minorities who are the 'beneficiaries' of these preferences often feel socially isolated and self-segregate. Indeed, preferences that are so large that they produce disparities in academic performance across racial lines are likely to foster negative stereotypes — just the opposite of what diversity programs are supposed to achieve.”

However, it isn’t up to Sanders, or the Supreme Court, to determine the value of a competitive college education for anyone, no matter the end GPA of the student and his or her friends. Only the student can determine if he or she will be a good fit for the school, and navigating college is an essential part of training to become an independent and successful working professional and citizen. Accepting fewer minority students for fear of self-segregation won’t necessarily result in assimilation. Accepting minority students based on their potential and providing compensatory appropriate support and guidance, such as that received by privileged students in high school, may.

The Supreme Court must recognize the facts. Sixty percent of African-American adults today assert they have experienced discrimination in the past, blacks and Hispanics are incarcerated at six times the amount of whites, and there are currently two black Senators and three Hispanics. Race is a structural problem, and its impacts are seen in the structural makeup of American society. Using racial preferences in college admissions architectures is a fittingly structural approach to help resolve this enduring tension in the American social fabric.