The author argues that when the Supreme Court next confronts the issue of affirmative action in higher education, it should examine the policy realistically—in terms of the condition of blacks and the consequences for the country—not abstractly, and uphold its constitutionality. In reaching this conclusion, the author: discusses the status of African-Americans in our society; reviews the legal and theoretical reasons for and against affirmative action in higher education for African-Americans; assesses African-Americans' performance on standardized tests and how those tests impede blacks who apply for admission to selective schools; surveys the states that have prohibited affirmative action; and, evaluates how the elimination or modification of affirmative action plans would effect African-Americans. The author then introduces a new defense of affirmative action, which he calls a "social conditions" or "closing the gap" theory. The social conditions argument, considered in the context of current affirmative action jurisprudence, asks that courts approve affirmative action in higher education as a way of bettering the social conditions in which African-Americans live, because those conditions affect everyone in our society, without regard to their cause.
Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C.L. Rev. 521 (2002), http://lawdigitalcommons.bc.edu/bclr/vol43/iss3/1