04/30/2014 11:18 am ET Updated Jun 30, 2014

Justices Get It Wrong on Race

Does race still matter in higher education, and if so, how? The Supreme Court's opinion on affirmative action in Michigan included a notable exchange between Justice Sonia Sotomayor and Chief Justice John Roberts on that question, and on whether affirmative action is needed to address persistent racial inequality. Sotomayor's dissent eloquently put forward one set of reasons that race continues to matter in higher education:

[R]ace matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up... Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'

In response, Roberts claimed that affirmative action might have the counterproductive effect of reinforcing those doubts about belonging. In Roberts' view,

[I]t is not 'out of touch with reality' to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and -- if so -- that the preferences do more harm than good.

To be sure, race matters very much in the way that Sotomayor articulates, because racial difference continues to generate deep and affecting doubts about a person's sense of belonging. And the jury is still out on whether affirmative action reinforces those doubts, though Roberts marshals little in the way of evidence to prove his empirical assertion.

But both justices miss the much deeper way in which race continues to matter when it comes to racial disparities in higher education. Consider the following statistics. The wealth gap between white and black families has quadrupled over the course of the last generation, increasing from $20,000 to $75,000 between 1984 and 2007. Latino wealth fell 66 percent during the recent economic crash, compared to 16 percent for whites. Latino and black rates of poverty are two and a half to four times those of whites. Blacks and Latinos have half the rates of homeownership. Young Latino and black men drop out of school at twice the rate that young white men do, and disproportionately attend underfunded, overcrowded, failing schools.

Well beyond skin color, race matters because historical discrimination created an unfair advantage for whites that will continue to reproduce itself indefinitely, even if all intentional discrimination were to end tomorrow. Race matters because owing to historical residential segregation, neighborhood networks in black and Latino communities don't have the wealth to finance good public schools to prepare students for college. Race matters because social networks that distribute jobs in black and Latino communities are more likely to distribute low-wage, low-skill jobs with little opportunity for advancement and 50 percent of all jobs are distributed through word of mouth. Race matters because it structures family networks in which wealth gets passed down in the form of help with college tuition or down payments on a house to white families but not to black or Latino families.

Because of the way that race and class intersect, a black or Latino child is far more likely to be born into a family with 1/10 of the wealth of a white family, into poverty, into a neighborhood with underfunded public schools, with limited opportunities to improve her status via education or wealth acquisition via real estate. A white child is more likely to be born into a family with significant wealth, social and neighborhood network advantages.

Whether affirmative action programs such as Michigan's provide a meaningful way of addressing such disparities is another question, and I have written elsewhere that such programs do far too little to address such disparities. But let there be no mistake that race still matters in a way that higher education should take into account.

To that end, Roberts' argument in an earlier opinion that race will disappear if we just stop focusing on race is in fact "out of touch with reality." But Sotomayor's focus on a small part of our contemporary racial landscape is itself too constricted a view to capture the full scope of racial difference. Both plurality and dissent need to acknowledge that race will continue to shape higher education indefinitely, even in the absence of ongoing intentional discrimination.