Assessing Class-Based Affirmative Action

Journal of Legal Education

Volumn 47, Issue 4, 1997, Pages 452-470

  Malamud, Deborah C ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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EID: 0031330447     PISSN: 00222208     EISSN: None     Source Type: Journal    
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References (34)

1. For a more extensive treatment of some of these issues, see Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 Tex. L. Rev. 1847 (1996).
2. As a practical matter, whether a particular member of the race-neutral camp will accept a class-based affirmative action program that disproportionately benefits people of color will depend upon her judgment as to whether people of color face disproportionate economic disadvantage. That in turn is likely largely to depend upon her view of the proper definition of "economic." For example, Richard D. Kahlenberg, a leading race-neutral advocate of class-based affirmative action, treats much of what causes economic disadvantage to African-Americans as "cultural" and therefore outside the proper sphere of remediation through affirmative action. The Remedy: Class, Race, and Affirmative Action 20, 74-75, 218-19 nn.21-23 (New York, 1996). For my critique of Kahlenberg, see Values, Symbols, and Facts in the Affirmative Action Debate, 95 Mich. L. Rev. 1668 (1997).
3. As a practical matter, whether a particular member of the race-neutral camp will accept a class-based affirmative action program that disproportionately benefits people of color will depend upon her judgment as to whether people of color face disproportionate economic disadvantage. That in turn is likely largely to depend upon her view of the proper definition of "economic." For example, Richard D. Kahlenberg, a leading race-neutral advocate of class-based affirmative action, treats much of what causes economic disadvantage to African-Americans as "cultural" and therefore outside the proper sphere of remediation through affirmative action. The Remedy: Class, Race, and Affirmative Action 20, 74-75, 218-19 nn.21-23 (New York, 1996). For my critique of Kahlenberg, see Values, Symbols, and Facts in the Affirmative Action Debate, 95 Mich. L. Rev. 1668 (1997).
4. As a practical matter, a particular member of the race-conscious camp might be prepared to settle for something less. That is to say, she might settle for a class-based affirmative action program that aids any members of minority groups, even if the program does not aid them in proportion to their rate of representation among the neediest Americans. This, I suspect, is the stance of most race-conscious advocates of class-based affirmative action who are in positions of power over admissions decision-making in colleges and universities. They are satisfied with any use of class-based affirmative action that increases minority enrollments, regardless of any inequities built into the program.
5. Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. Colo. L. Rev. 939, 968-69 (1997).
6. Malamud, supra note 1, at 1854-56.
7. Gender has received little attention in discussions of affirmative action in higher education. There are two reasons for this: women are less dependent on affirmative action for admission to many programs of higher education than are blacks and Latinos, and gender-based affirmative action remains subject only to intermediate scrutiny under the Equal Protection Clause and is therefore not subject to the legal strictures of the Supreme Court's recent constitutional affirmative action decisions or, for that matter, to the Fifth Circuit's decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996).
8. See Malamud, supra note 2, at 1710-14.
9. See, e.g., Louis Freedberg, Clinton to Spotlight Minority Law School Admissions: Big Drop Without Affirmative Action, S.F. Chron., June 13, 1997, at A5.
10. Admitting the highest-scoring minority students may also diminish the purely financial costs of affirmative action: higher-scoring minority students tend to come from higher-income minority families, and their admission diminishes pressure on the school's financial aid budget. The financial aid burden of admitting lower-income students is not a major cost of affirmative action if schools award merit-based scholarships to the academically most attractive minority students, regardless of need.
11. This is the case for SAT scores. See Kahlenberg, supra note 2, at 99.
12. For a more thorough review of these issues, see Malamud, supra note 1, at 1866-70.
13. Hopwood, 78 F.3d at 959 ("[I]f the law school continues to operate a disguised or overt racial classification system in the future, its actors could be subject to actual and punitive damages" (emphasis added)). One can only wonder how the Fifth Circuit would evaluate the recent decision of the state of Texas to require the University of Texas system to admit the top 10 percent of every Texas high school's graduating class - a move that relies on the state's segregated high school system to provide racial diversity to the university, without regard to the staggering differences in educational attainment that must exist between the top students in the state's best and worst high schools. For a description of the new law and its anticipated effects, see Sam Walker, Texas Hunts for Ways to Foster Diversity, Christian Sci. Monitor, June 12, 1997, at 4.
14. See, e.g., Kahlenberg, supra note 2; Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. Rev. 1913 (1996). For a critique of this view, see Malamud, supra note 1, at 1861-62.
15. See, e.g., Kahlenberg, supra note 2; Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. Rev. 1913 (1996). For a critique of this view, see Malamud, supra note 1, at 1861-62.
16. Poverty is most commonly defined as lack of the "family resources . . . deemed necessary to obtain a minimally adequate standard of living, defined appropriately for the United States today." Measuring Poverty: A New Approach, eds. Constance F. Citro & Robert T. Michael, 19 (Washington, 1995) (footnote omitted) (Report of the Panel on Poverty and Family Assistance: Concepts, Information Needs, and Measurement Methods, National Research Council). But considerable controversy remains about the definition and measurement of poverty - as the above-cited congressionally commissioned study by the National Research Council reflects. See id. at 2-5 (executive summary) (criticizing the U.S. government's current poverty measure and recommending a change); id. at 386 (dissent by John F. Cogan) ("In essence, the panel has mostly eschewed the role of scientific panel and has instead assumed the role of a government policy maker.").
17. For the political saliency of categorical versus gradational conceptions of class, see Malamud, supra note 1, at 1863-66.
18. See Kahlenberg, supra note 2, at 99. Linda F. Wightman's data on the relationship between LSAT scores and socioeconomic status for members of different racial and ethnic groups show similar results: "for each ethnic group except Puerto Rican, the data tend to show a steady decline in LSAT score across SES groups." The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. Rev. 1, 42 (1997).
19. See Malamud, supra note 1, at 1860-94.
20. See generally Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (New York, 1995).
21. For a discussion of the relationship between the tendency of race-based affirmative action to bypass the minority poor and the emergence of diversity as the leading justification for affirmative action, see Malamud, supra note 4, at 948-49.
22. See Citro & Michael, supra note 14, at 75 (table 1-6). One source of controversy in the measurement of poverty is that different measures of poverty produce different ethnic and racial distributions of poverty in America. Id. at 74-77.
23. Race-Based v. Class-Based Affirmative Action in College Admissions (Oct. 1996) (manuscript on file with author), excerpted in 7 La Follette Pol'y Rep., Spring/Summer 1996, at 10.
24. "Minority" is defined in Cancian's study as black, Chicano, Cuban, Filipino, Hawaiian Pacific Islander, Mexican, Mexican-American, other Spanish, other Hispanic, and Puerto Rican. Id. at 4 (table 1).
25. If instead the bottom 40 percent of scorers were deemed unlikely college material (a not unreasonable alternative, given how much easier the AFQT is than the ACT or SAT), the disproportion is diminished-30 percent of whites would be disqualified as compared to 75 percent of minorities - but the net result is that a very small percentage of minority youth in the database would be deemed eligible to participate in college affirmative action programs.
26. Similarly, Cancian informs me that only 7.7 percent of the non-college-eligible cohort counted as disadvantaged under all three variables.
27. On the reasons why discussions such as these must be particularistic, see Malamud, supra note 4, at 999-1000. The rich literature on the black middle class, and the fact that African-Americans figure so centrally in the history and practice of affirmative action, explain my decision to focus on the black middle class.
28. See id. at 967-88.
29. Wightman, supra note 17, at 43.
30. Malamud, supra note 4, at 988-96. For my views on race-based affirmative action more generally, see Malamud, supra note 2, at 1691-714.
31. Wightman's data on black LSAT performance show the slightly anomalous result that while mean LSAT scores climb with movement from the lower middle to the upper middle SES groupings, they fall off slightly (a few hundredths of a point) for the upper SES group. Wightman, supra note 17, at 44 (table 10). I find this anomaly difficult to interpret, in part because of its small size, and in part because of Wightman's SES definitions, which are based on factor analyses that may well have differential validity for different groups. It is particularly puzzling, for example, that, as she defines "upper" and "upper middle" SES groupings, more blacks in her sample count as "upper" than as "upper middle" and "middle" combined (488 vs. 422)-a vastly different result than for whites (5,424 vs. 12,009), Asian Americans (227 vs. 561), and any of her Latino groups: Puerto Rican, 24 vs. 62; Mexican-American, 74 vs. 153; other Hispanic, 114 vs. 256. Id. at 42 n.99 (table N7).
32. I avoid using the term "black upper middle class," because so few blacks enjoy the full range of privileges that the white upper middle class enjoys. My preferred terminology leaves open a characterization of the black middle class (at all its levels) as a distinct class fragment in the United States, kept from full integration into the American middle class by continuing patterns of racial segregation.
33. I do not mean to exaggerate the reliability in general of intergenerational transmission of high socieconomic status. See Christopher Jencks, Inequality: A Reassessment of the Effect of Family and Schooling in America 179-80 (New York, 1972). I mean only to say that something of social import happens when the intergenerational transmission of high status proves systematically harder for blacks than for whites.
34. See Malamud, supra note 1, at 1866-70.