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43 B.C. L. Rev. 521 (2001-2002)
Affirmative Action in Higher Education: Confronting the Condition and Theory

handle is hein.journals/bclr43 and id is 531 raw text is: AFFIRMATIVE ACTION IN HIGHER EDUCATION: CONFRONTING THE CONDITION AND THEORY JACK GREENBERG* Abstract: 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' per- formance 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. * Professor of Law, Columbia University. A.B. 1945, LL.B. 1948, Columbia University. Dean, Columbia College (1989-1993). Director-Counsel, NAACP Legal Defense and Edu- cational Fund (1961-1984). I am grateful to the following Columbia Law students for their assistance with this article: Bryan Sells, Erez Liebermann, Michelle Burg, Zakiyyah Salim, Scott Chesin, and reference librarian Dana Neacsu. I am grateful also for advice of friends and colleagues: Mike Dorf, Cindy Estlund, Jeff Fagan, Sam Issacharoff, Jim Milligan, Henry Monaghan, James M. Nabrit, III, Andrzej Rapaczynski, Richard Ford, Teddy Shaw, Susan Sturm, and Kendall Thomas. This article is an expanded version of my 1998 Dean's Distinguished Lecture at Columbia University College of Physicians and Surgeon's Medical School. It deals only with affirmative action for African-Americans in higher education. Other groups, for example, Hispanics, Native Americans, and Asians, and other activities, for example, small business and employment, have their own unique features and require somewhat different discussion.

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