Race, class, caste . . . ? Rethinking affirmative action

Michigan Law Review

Volumn 97, Issue 5, 1997, Pages 1296-1310

  Cunningham, Clark D ^a   Madhava Menon, N R ^a  

^a NONE

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EID: 0347595418     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290285     Document Type: Article

References (55)

1. This analysis and a response by Cass R. Sunstein, which appears at 97 MICH. L. REV. 1311 (1999), were the subject of a public panel discussion on September 9, 1998, at Washington University led by Professors Cunningham and Sunstein with comments by four other Washington University faculty - Barbara Flagg (law), Pauline Kim (law), Sunita Parikh (political science), and Robert Pollak (economics and business) - and subsequently on January 14, 1999, of a faculty workshop sponsored by the Department of Government, Dartmouth College. The authors thank the commentators and participants at those sessions for their suggestions on the draft.
2. For a good summary and critique of the "class-based" alternative approach to affirmative action, see Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEXAS L. REV. 1847 (1996).
3. The debate over law school admissions runs the risk of greatly oversimplifying the variety of justifications for affirmative action. For example, it focuses more on the need of an excluded group for access to a scarce resource than on the value to the larger society of inclusion of many groups regardless of need; it also assumes that racist decisionmaking is no longer a threat, surely a dangerous assumption in other contexts such as employment and contracting. We use the law school admission problem only as an illustration, fully aware that a nonracial approach that helps resolve that problem may not adequately address other contexts where race-based affirmative action is now found.
4. Linda F. Wightman, 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, 50-51 (1997). Wightman's analysis is supported by the actual experience at the Texas Law School and the University of California Law School in Berkeley after these schools were prohibited from using race as an admission criteria: the number of African-American students admitted to the Texas Law School dropped from 65 in 1996 to 11 in 1997. Telephone Interview with M. Michael Sharlot, Dean, University of Texas Law School (Mar. 9, 1999). At Berkeley, the number of African-American students admitted went from 75 in 1996 to 14 in 1997. See Affirmative Action Loses Ground, ST. LOUIS POST DISPATCH, July 8, 1997, at B6. It is important to note that Wightman's study also indicates that 78% of those black students admitted to law school in 1991 who would have been excluded by using GPA/LSAT criteria did in fact graduate, and 73% of those black graduates (who would have been excluded) did pass a bar examination. See Wightman, supra, at 36-38. The 73% bar passage rate is a projection based on data available to Wightman. See id. at 37.
5. Linda F. Wightman, 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, 50-51 (1997). Wightman's analysis is supported by the actual experience at the Texas Law School and the University of California Law School in Berkeley after these schools were prohibited from using race as an admission criteria: the number of African-American students admitted to the Texas Law School dropped from 65 in 1996 to 11 in 1997. Telephone Interview with M. Michael Sharlot, Dean, University of Texas Law School (Mar. 9, 1999). At Berkeley, the number of African-American students admitted went from 75 in 1996 to 14 in 1997. See Affirmative Action Loses Ground, ST. LOUIS POST DISPATCH, July 8, 1997, at B6. It is important to note that Wightman's study also indicates that 78% of those black students admitted to law school in 1991 who would have been excluded by using GPA/LSAT criteria did in fact graduate, and 73% of those black graduates (who would have been excluded) did pass a bar examination. See Wightman, supra, at 36-38. The 73% bar passage rate is a projection based on data available to Wightman. See id. at 37.
6. The mean LSAT score for black students was consistently seven to nine points lower than white students of the same socioeconomic class for each of the four socioeconomic classifications used. See Wightman, supra note 4, at 44. Indeed, the group of black law students classified as "Upper Class" (both parents had graduate or professional training and held professional jobs) had a mean LSAT score about six points lower than white law students in the lowest classification, "Lower-Middle" (neither parent college-educated and both engaged in blue collar work). See id. at 41-44.
7. See Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2435 (1994) ("[T]he purpose of the Fourteenth Amendment was to . . . '[do] away with the injustice of subjecting one caste of persons to a code not applicable to another.'" (second alteration in original) (quoting CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard))).
8. The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (emphasis added).
9. See Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257, 270 n.59 (1996).
10. J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2358 (1997).
11. An important first step in this expansion of perspectives took place on November 8-10, 1997, when Washington University hosted an international conference, Rethinking Equality in the Global Society, that brought together leading legal scholars, social scientists, and policy makers from the United States, India, and South Africa, including Justice Jeevan Reddy, author of the majority opinion in the most important Indian Supreme Court case on affirmative action, Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India), and Professor M.N. Srinivas, a distinguished Indian sociologist and the leading expert in the world on the caste system. See Conference, Rethinking Equality in the Global Society, 75 WASH. U. L.Q. 1561 (1997) [hereinafter Rethinking Equality Conference] (providing transcripts of the plenary and panel sessions on the final day of the conference); Rethinking Equality in the Global Society (visited Feb. 18, 1999) 〈http:/As.wustl.edu/Conferences/Equality〉 (publishing conference papers by Cunningham & Menon, Reddy, and Govender (a South African scholar), information about the participants, a bibliography, and related materials).
12. Sunstein, supra note 6.
13. Id. at 2429 (emphasis omitted).
14. Id. at 2439.
15. See id. at 2452 ("On the account I have offered, there is no constitutional objection to genuinely remedial race- and sex-conscious policies, at least as a general rule. If a basic goal is opposition to caste, affirmative action policies are ordinarily permissible." (footnote omitted)).
16. Morris B. Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 HARV. L. REV. 1312, 1321 (1986). Writing for herself and three other justices in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), Justice O'Connor stated that one reason that race-based affirmative action required strict scrutiny was the risk of "simple racial politics," 488 U.S. at 493, noting that a majority of the city council that adopted a plan favoring African-American contractors were themselves African American. See 488 U.S. at 495.
17. See Sunstein, supra note 6, at 2416, 2430-31.
18. Id. at 2432-33.
19. See id. at 2433. Sunstein does add that a history of discrimination is "highly probable" for low-caste groups. See id.
20. See id. at 2432 ("When the group characteristic is not highly visible, we cannot have a caste system as I understand here . . . ."); id. at 2431 ("The [caste] system can operate largely because of the high visibility of the group characteristic."). Sunstein does also state that "[f]or some purposes . . . it might make sense to speak as well of characteristics that, while not highly visible, are easily verified." Id. at 2432. But he goes on to say that "the argument I am making works best when the morally irrelevant characteristic is highly visible." Id.
21. Id. at 2444.
22. See id. at 2429, 2444-49 (citing data comparing African Americans to whites and women to men).
23. See id. at 2443-44.
24. See id. at 2433 & n.74 (excluding homosexuals); id. at 2438 (excluding the poor). Farber and Sherry's "pariah principle,'' although also based on an analogy to the Indian caste system, differs from Sunstein's anticaste principle by protecting homosexuals, because they are - like India's "untouchables" - treated as extreme social outcasts; socioeconomic condition and visually identifiable group status are not relevant to their use of the caste analogy. See Farber & Sherry, supra note 8, at 272-73.
25. Sunstein, supra note 6, at 2440.
26. Id.
27. Id. at 2429.
28. Being against "caste" rather than "color-conscious" seems a move similar to being "pro-choice" as an alternative to being "anti-life" in the abortion debate.
29. The leading study of the development of India's affirmative action jurisprudence by an American legal scholar is MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984). Another excellent book, by an American political scientist, that also covers important events after Galanter's work was published, is SUNITA PARIKH, THE POLITICS OF PREFERENCE: DEMOCRATIC INSTITUTIONS AND AFFIRMATIVE ACTION IN THE UNITED STATES AND INDIA (1997). A collection of essays by leading Indian intellectuals, including several critiques of the current system of affirmative action in India, can be found in CASTE: ITS TWENTIETH CENTURY AVATAR (M.N. Srinivas ed., 1996).
30. The leading study of the development of India's affirmative action jurisprudence by an American legal scholar is MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984). Another excellent book, by an American political scientist, that also covers important events after Galanter's work was published, is SUNITA PARIKH, THE POLITICS OF PREFERENCE: DEMOCRATIC INSTITUTIONS AND AFFIRMATIVE ACTION IN THE UNITED STATES AND INDIA (1997). A collection of essays by leading Indian intellectuals, including several critiques of the current system of affirmative action in India, can be found in CASTE: ITS TWENTIETH CENTURY AVATAR (M.N. Srinivas ed., 1996).
31. The leading study of the development of India's affirmative action jurisprudence by an American legal scholar is MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984). Another excellent book, by an American political scientist, that also covers important events after Galanter's work was published, is SUNITA PARIKH, THE POLITICS OF PREFERENCE: DEMOCRATIC INSTITUTIONS AND AFFIRMATIVE ACTION IN THE UNITED STATES AND INDIA (1997). A collection of essays by leading Indian intellectuals, including several critiques of the current system of affirmative action in India, can be found in CASTE: ITS TWENTIETH CENTURY AVATAR (M.N. Srinivas ed., 1996).
32. See Clark D. Cunningham & N.R. Madhava Menon, Seeking Equality in Multicultural Societies (visited Mar. 18. 1999) 〈http://ls.wustl.edu/Conferences/Equality/art-23index.html〉.
33. Sunstein, supra note 6, at 2438.
34. Id. at 2429 (emphasis omitted); see also id. at 2430 ("the highly visible but morally irrelevant characteristic that gives rise to lower-caste status") (emphasis added); id. at 2433 ("Under the principle I am describing, a history of discrimination is not a necessary condition for status as a lower caste, though in practice such a history is highly probable.").
35. See Cunningham & Menon, supra note 29.
36. See Cunningham & Menon, supra note 29.
37. But see City of Richmond v. J.A. Croson Co., 488 U.S. 469, 506 (1989) (criticizing the "random inclusion" of Aleut, Eskimo, and Oriental categories in municipal affirmative action plan); Hopwood v. Texas, 78 F.3d 932, 962-66 (5th Cir. 1996) (Wiener, J., concurring) (holding law school admission program to violate Equal Protection Clause because it was not narrowly tailored: it ignored non-Mexican Hispanic Americans, Asian Americans, and Native Americans); Adarand Constructors, Inc. v. Pena, 965 F. Supp. 1556, 1580 (D. Colo. 1997) (finding federal affirmative action program for awarding government contracts not narrowly tailored because it included such groups as Aleuts, Samoans, and Bhutans, without evidence that they needed preferential treatment).
38. See Rethinking Equality Conference, supra note 10, at 1598-99 (panel presentation by Justice B.P. Jeevan Reddy); B.P. Jeevan Reddy, Equality and Social Justice: Rethinking Equality in the Global Society (visited Feb. 19, 1999) 〈http://ls.wustl.edu/Conferences/Equality/reddy3.html〉.
39. See Rethinking Equality Conference, supra note 10, at 1598-99 (panel presentation by Justice B.P. Jeevan Reddy); B.P. Jeevan Reddy, Equality and Social Justice: Rethinking Equality in the Global Society (visited Feb. 19, 1999) 〈http://ls.wustl.edu/Conferences/Equality/reddy3.html〉.
40. See Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India).
41. See Cunningham & Menon, supra note 29; Rethinking Equality Conference, supra note 10, 1597-98 (panel presentation by Justice B.P. Jeevan Reddy).
42. See Adarand, 965 F. Supp. at 1580 (criticizing federal affirmative action programs for contracting as overinclusive because they presume "that all those in the named minority groups are economically . . . disadvantaged").
43. See PARIKH, supra note 28, at 169-92.
44. For example, both the 50% cap on total reservations and the creamy layer test were imposed by the Indian Supreme Court without explicit support in the constitutional text. See Cunningham & Menon, supra note 29.
45. The fact that the Supreme Court opened its processes to many interested parties and conducted very many public hearings over a span of months may have contributed to this result. See id. However, there continues to be strong criticism of the Mandai Commission Report and the Supreme Court's decision in the Sawhney case from Indian intellectuals. See, e.g., Rethinking Equality Conference, supra note 10, at 1657-60 (panel presentation by M.N. Srinivas).
46. Constitutional discourse in the new South Africa, based in part on India's example, differentiates between "fair" and "unfair" discrimination in permitting various kinds of affirmative action. See Rethinking Equality Conference, supra note 10, at 1624-28 (panel presentation by Karthigasen Govender); id. at 1675 (closing speech by Clark D. Cunningham); Karthigasen Govender, Equality - The South African Perspective (visited Feb. 19, 1999) 〈http://ls.wustl.edu/Conferences/Equality/Gov-art4.html〉.
47. Constitutional discourse in the new South Africa, based in part on India's example, differentiates between "fair" and "unfair" discrimination in permitting various kinds of affirmative action. See Rethinking Equality Conference, supra note 10, at 1624-28 (panel presentation by Karthigasen Govender); id. at 1675 (closing speech by Clark D. Cunningham); Karthigasen Govender, Equality - The South African Perspective (visited Feb. 19, 1999) 〈http://ls.wustl.edu/Conferences/Equality/Gov-art4.html〉.
48. Affirmative action has a tendency to perpetuate itself, reinforcing the divisions in society that it is meant to liquidate.
49. For example, Claude Steele, Joshua Aronson, and other psychologists have documented a "stereotype threat effect" that depresses performance by academically skilled African Americans on standardized tests like the LSAT. Their research shows that African-American test performance can be equalized with comparable white test takers simply by altering the testing instructions so as to remove the stereotype threat. See Joshua Aronson et al., Stereotype Threat and the Academic Underperformance of Minorities and Women, in PREJUDICE: THE TARGET'S PERSPECTIVE 83, 88-90 (Janet K. Swim & Charles Stangor eds., 1998); Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613, 619-21 (1997).
50. For example, Claude Steele, Joshua Aronson, and other psychologists have documented a "stereotype threat effect" that depresses performance by academically skilled African Americans on standardized tests like the LSAT. Their research shows that African- American test performance can be equalized with comparable white test takers simply by altering the testing instructions so as to remove the stereotype threat. See Joshua Aronson et al., Stereotype Threat and the Academic Underperformance of Minorities and Women, in PREJUDICE: THE TARGET'S PERSPECTIVE 83, 88-90 (Janet K. Swim & Charles Stangor eds., 1998); Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613, 619-21 (1997).
51. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205 (1995).
52. Endogamy is a cultural practice which (1) is likely to be found in groups that suffered from de jure segregation, (2) is a reliable indicator of continuing de facto segregation, (3) but is not limited to racial categories, and (4) is likely to reflect the group's own understanding of its boundaries (both as to extent and permeability).
53. In Cunningham & Menon, supra note 29, we coin the acronym EDISEG to describe such groups (Educationally Deprived, Involuntarily Segregated, Endogamous Groups).
54. For one such anthropological analysis, see VIRGINIA R. DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATIONS IN CREOLE LOUISIANA (1986). Economist Glenn C. Loury has argued that affirmative action is not needed by all African Americans, but instead should be focused on a distinct group whose members share the following characteristics: (1) slave descendants, (2) originally rural and Southern, (3) but now emigrated to northern cities, (4) where they are now "locked in ghettos." See Glenn C. Loury, The Hard Questions: Double Talk, NEW REPUBLIC, Aug. 25, 1997, at 23. He uses the term "caste" in describing this group. See id.
55. For one such anthropological analysis, see VIRGINIA R. DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATIONS IN CREOLE LOUISIANA (1986). Economist Glenn C. Loury has argued that affirmative action is not needed by all African Americans, but instead should be focused on a distinct group whose members share the following characteristics: (1) slave descendants, (2) originally rural and Southern, (3) but now emigrated to northern cities, (4) where they are now "locked in ghettos." See Glenn C. Loury, The Hard Questions: Double Talk, NEW REPUBLIC, Aug. 25, 1997, at 23. He uses the term "caste" in describing this group. See id.