Affirmative action was the institutional response to documented discrimination. The Supreme Court's elimination of it at the university level has not eliminated the conditions that produced it.
The Institutional Logic
Affirmative action — the range of policies that consider race as a factor in admissions, hiring, and contracting decisions to correct for the effects of historical and ongoing discrimination — was developed as an institutional response to a specific institutional failure: the failure of formally race-neutral policies to produce equitable outcomes in the presence of the structural conditions that historical discrimination created. The logic was institutional: if institutions that discriminated actively produced racially unequal outcomes, institutions that are formally race-neutral but operate in a racially unequal environment will also produce racially unequal outcomes without explicit efforts to address the inequality. Race-consciousness was the institutional response to the race-consciousness that had produced the inequality.
The Supreme Court's Students for Fair Admissions decisions eliminated race-conscious admissions at selective universities, on the grounds that the Equal Protection Clause prohibits the use of race in admissions decisions regardless of the remedial purpose. The decisions did not address the structural conditions that race-conscious admissions were designed to address — the K-12 education gaps, the wealth gaps, and the network access gaps that produce the application pool disparities that race-conscious admissions corrected for. The institutional consequence is universities that must achieve whatever equity objectives they have through the race-neutral approaches that the available evidence suggests will produce less equitable outcomes than the race-conscious approaches they have replaced.
Affirmative action's institutional logic was the response to institutional discrimination with institutional correction. The Supreme Court's elimination of it at the university level has not eliminated the institutional conditions that produced the need for it — it has required the institutional response to those conditions to use tools that the available evidence suggests are less effective. The equity gap that results is the governance consequence of the legal framework the Court has imposed.
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