Document Type

Working Paper

Publication Date



Center for Constitutional Governance


Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to shoring up the legality of affirmative action actually overlaps with the structural changes required to meet the imperative of educating the next generation of students, a majority of whom will be Black and Brown and educated in nonprivileged, segregated environments.

This Essay first shows that affirmative action holds in place higher education’s role in stratifying access to higher education and restricts social mobility by race and class. It then explains practices perpetuating this structural inequality – the reward of past privilege rather than future potential, the hoarding of resources by privileged institutions, and the reliance on admissions decision-making to advance goals that in fact require broader institutional commitment and transformation. The next Part offers strategies and examples that reframe affirmative action by (1) nesting it within an effort to transform institutions to ensure full participation, (2) shifting from rewarding privilege to cultivating potential and increasing mobility, and (3) building partnerships and enabling systemic approaches to increasing educational access and success. The final Part argues that these structural approaches are less likely to trigger strict scrutiny from the courts, and will foster the inquiry needed to document the need for affirmative action in admissions and expand the justifications for race-conscious approaches.