The current legal answer to discrimination in the United States is that remedial affirmative action is justified when the following two criteria are met:

1. The past discrimination that is to be remedied must be proven to be discrimination by the institution that is engaging in affirmative action in question. Thus, using race-based affirmative action to remedy unproven discrimination, usually referred to as "societal discrimination" or even to remedy proven discrimination that cannot be attributed to the institution engaged in the affirmative action in question cannot be justified. This approach was first endorsed in Bakke in 1978 and later in Wygant in 1986.

2. Racial classifications must be regarded as presumptively suspect. It does not matter whether the classifications are intended to remedy the results of prior racial discrimination or whether they are intended to foster or maintain racial discrimination. Accordingly, any use of racial classifications must satisfy strict scrutiny analysis. It must be narrowly tailored to meet a compelling government interest, where the presumption is that only seldom will such use of racial classifications be justified. This concept, first endorsed in Bakke in 1978, was later reaffirmed in Croson in 1987. Although the U.S. Supreme Court defends these two requirements as being either necessitated by or compatible with the Civil Rights Act of 1964 and/or the U.S. Constitution, particularly the Fourteenth Amendment, most of the arguments for these two requirements are found within the Supreme Court decisions themselves, beginning with the Bakke decision in 1978.