Class, classes, and classic race-baiting: What's in a Definition?

Denver University Law Review

Volumn 88, Issue 4, 2011, Pages 807-834

  Onwuachi Willig, Angela ^a   Fricke, Amber ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 84866437617     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (123)

1. Richard H. Sander, Class in American Legal Education, 88 DENV. U. L. REV. 631, 637 (2011).
2. While Professor Sander does not explicitly argue for the repeal of race-based affirmative action in his article, he suggests, through his arguments, that the flaws in many race-based affirmative action admissions policies are cause for elimination of the policy, not reform of the policy.
3. Most tellingly, Sander states, "As we have seen, law schools could do a great deal to foster more SES diversity without using class-based preferences at all. But there is much to commend going further, and using mild SES preferences as at least partial substitute for current racial preferences."
4. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 67-75 (2002).
5. Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 146-51 (2003).
6. Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452, 454-71 (1997).
7. Throughout this article, the words "Black" and "White" are capitalized when used as nouns to describe a racialized group; however, these terms are not capitalized when used as adjectives.
8. Also, the term "Blacks" is used instead of the term "African Americans" because the term "Blacks" is more inclusive.
9. Journal of Blacks in Higher Educ. Found., Why "Black" and Not "African American"?, 3 J. BLACKS HIGHER EDUC. 18, 18-19 (1994).
10. Additionally, "[i]t is more convenient to invoke the terminological differentiation between black and white than say, between African-American and Northern European-American, which would be necessary to maintain semantic symmetry between the two typologies.
11. Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. ILL. L. REV. 1043, 1044 n.4 (1992).
12. Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141 (2007).
13. Sander 1, at 633-34 (defining "class" and "socioeconomic status" by reference to one's income, education, and occupation, and using the two terms interchangeably "when statistics are involved").
14. Class, M-W.COM, http://www.merriam-webster.com/dictionary/class (last visited June 08, 2011) (emphasis added).
15. Socioeconomic, M-W.COM, http://www.merriam-webster.com/dictionary/ socioeconomic (last visited June 08, 2011) (emphasis added).
16. Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1866-94 (1996).
17. Sander 1, at 633 (discussing the prevalence of students from "relatively elite backgrounds" in top law schools).
18. Race-based affirmative action in legal education usually applies to black Americans, Latinos, Native Americans, and some Asian ethnicities.
19. However, we have chosen to focus most of our emphasis on black Americans, considering that
20. Sander also puts great attention on black Americans
21. The greatest wealth of available scholarship is on black Americans
22. Black Americans are arguably the original, primary intended recipients of affirmative action, considering our nation's past history with slavery, Jim Crow laws, and the Civil Rights Movement.
23. Except where specifically noted in the remaining sections of this Article, we use the terms "class" and "SES" as Sander does-interchangeably.
24. Kids Count Data Ctr., Data Across States: Children in Single-Parent Families by Race (Percent) - 2009
25. ANNIE E. CASEY FOUND., http://datacenter.kidscount.org/data/acrossstates/ Rankings.aspx?ind=107 (last visited June 08, 2011).
26. Todd Ackerman, Legislators Slam A&M Over Legacy Admissions, HOUS. CHRON., Jan. 4, 2004, at A1, available at http://www.chron.com/CDA/archives/ archive.mpl?id=200-3722913
27. see also Gates Ends Legacy Role in Admissions, BATTALION ONLINE (Jan. 16, 2004), http://www.thebatt.com/2.8485/gates-ends-legacy-role-in-admissions-1. 1207693
28. Containing a statement in which President Robert Gates asserted that "Texas A&M will no longer award points for legacy in the admissions review process.
29. Michael King, Naked City: Texas A&M's Racial Legacy, AUSTIN CHRON. (Jan. 16, 2004), http://www.austinchronicle.com/gyrobase/Issue/print?oid= oid%3A193354.
30. Daniel Golden, Family Ties: Preference for Alumni Children in College Admissions Draws Fire-Policy, Aiding Mainly Whites, Gets Embroiled in Debate Over Affirmative Action- Critical to Schools' Donations, WALL ST. J., Jan. 15, 2003, at A1.
31. Sander 1, at 636.
32. Professor Sander adapts the CAMSIS scale, which ranks occupations, but adds his own percentile to it reasoning that "75% of employed women in this age cohort have lower CAMSIS codes, so registered nurses are assigned a percentile of 75.
33. THOMAS M. SHAPIRO, THE HIDDEN COST OF BEING AFRICAN AMERICAN: HOW WEALTH PERPETUATES INEQUALITY 87 (2004).
34. The gap between whites and blacks grows using the occupational definition of the middle class because it does not have an income ceiling and thus includes proportionally more well-to-do families, and highly paid professionals and executives tend to be white.
35. Conversely, employees in lower-middle-jobs-office workers, civil servants, and salespeople-are disproportionately black.").
36. Centering his analysis around socioeconomic rather than racial diversity.
37. Recognizing that wealth is important and that there is likely a racial disparity.
38. Although Professor Sander recognizes that the measures are likely to overstate the wealth of Blacks, he denies that such flaws significantly or fatally affect his classifications.
39. stating that Blacks are more likely to be civil servants who earn less, situating themselves as lower middle-class.
40. Discussing the problem with occupation classifications when there is no income cap, which places clerical workers and executives in the same category despite great variance in economic advantage.
41. Income is an indicator of the current status of racial inequality . . . wealth discloses the consequences of the racial patterning of opportunities.
42. Recognizing that wealth is important and that there is likely a racial disparity.
43. Noting that the gap had narrowed following 1989 figures which found that a black family made only 55 cents for every dollar a white family made.
44. Stating that his study corroborated prior findings that income does not predict wealth levels.
45. With respect to gifts from living family members, blacks and whites are just as likely to receive at all levels of wealth but "[t]he gift for the average white recipient was $2,824, compared to $805 for black families," and "[b]lack families are just as willing to help their adult children, but their circumstances limit their ability to do so.
46. Additionally, "among those fortunate enough to receive bequests, blacks received 8 cents of inheritance for every dollar inherited by whites.
47. In fact, as a result of the tremendous postwar economic prosperity and public policies promoting middle-class homeownership, today inheritances are commonplace for middle-class families.
48. Fair Housing Act of 1968, Pub. L. No. 90-284, 82 Stat. 73 (codified as amended at 42 U.S.C. §§ 3601-3619.
49. Census Report: Broad Racial Disparities Persist, MSNBC.COM (Nov. 14, 2006, 12:01 AM), http://www.msnbc.msn.com/id/15704759/ns/us-news-life/.
50. By "free," we mean that the land was given without to the exchange of money from the recipients.
51. The pool of potential buyers is no longer 100 percent of the affordable market, because for all practical purposes potential white buyers shun such neighborhoods.
52. The potential buyers are now mainly other black Americans who can afford the home and possibly other minorities.
53. [F]or families in the middle three-fifths of America's net worth distribution, ranging from $1,650 to $153,000, equity in their principal residence represents 60 percent of their wealth.
54. Everything else being equal, blacks accrue only $1.98 in wealth for each additional dollar earned, in comparison to $3.25 for whites, so that, net of all other factors, the average black family earning $60,000 possesses $76,000 less wealth than the average white family with the same earnings.
55. The most dramatic difference is the wealth effect of homeownership, which is worth about $60,000 more for whites than blacks.
56. The evidence bolsters my core argument that the way homes are bought and sold, where they are located, and how the market values them provides a contemporary foundation for racial inequality.").
57. Many of the families I spoke to relied on transformative assets to acquire their class standing, social status, homeownership, the kind of community they live in, and their children's schooling.
58. Many whites continue to reap advantages from the historical, institutional, structural, and personal dynamics of racial inequality, and they are either unaware of these advantages or deny they exist.
59. Black Americans in particular pay a very steep tax for this uneven playing field and outcome, as well as for the denial of white advantage.
60. In effect, young white families possess an advantage in housing markets and homeownership because their parents' economic livelihoods and ability to accumulate wealth were untrammeled by race in previous generations.
61. A further analysis of this already disturbing data discloses imposing and powerful racial and ethnic cleavages. In 1999, 26 percent of all white children grew up in asset-poor households, compared to 52 percent of black American children and 54 percent of Hispanic children.").
62. The term "legacy Blacks" applies to African-Americans who come from families in which all four grandparents descend from black American slaves. See Onwuachi-Willig 10, at 1149 n.27.
63. Douglas S. Massey et al., Black Immigrants and Black Natives Attending Selective Colleges and Universities in the United States, 113 AM. J. EDUC. 243, 257 tbl.3 (2007)
64. DOUGLAS S. MASSEY ET AL., THE SOURCE OF THE RIVER: THE SOCIAL ORIGINS OF FRESHMEN AT AMERICA'S SELECTIVE COLLEGES AND UNIVERSITIES 30-31 tbl.2.5 (2003).
65. Among the schools included in the study were the following (in alphabetical order): Barnard College, Bryn Mawr College, Columbia University, Denison University, Emory University, Georgetown University, Howard University, Kenyon College, Miami University- Oxford, Northwestern University, Oberlin College, Pennsylvania State University, Princeton University, Rice University, Smith College, Stanford University, Swarthmore College, Tufts University, Tulane University, University of California-Berkeley, University of Michigan, University of North Carolina, University of Notre Dame, University of Pennsylvania, Washington University in St. Louis, Wesleyan University, Williams College, and Yale University.
66. Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 WASH. & LEE L. REV. 1469, 1501 (1997)
67. Highlighting that black married couples are more likely to be equal wage earners.
68. Grutter v. Bollinger, 539 U.S. 306, 333 (2003).
69. GARY ORFIELD, SCHOOLS MORE SEPARATE: CONSEQUENCES OF A DECADE OF RESEGREGATION 34 (2001)
70. A recent study on school segregation reports that 'white students are by far the most segregated in schools dominated by their own group.' Whites on average go to schools where 80 percent of the students are white.
71. In comparison, blacks and Latinos attend schools where a little over half of the students are black or Latino.
72. Discussing the impact of having a critical mass of racial minority students in that it allows students to not feel obligated to serve as racial spokespersons.
73. Angela Onwuachi-Willig, Emily Houh & Mary Campbell, Cracking the Egg: Which Came First-Stigma or Affirmative Action?, 96 CALIF. L. REV. 1299, 1299 (2008)
74. Deirdre M. Bowen, Brilliant Disguise: An Empirical Analysis of a Social Experiment Banning Affirmative Action, 85 IND. L.J. 1197, 1198-99, 1223-25 (2010)
75. Underrepresented minority students in states that permit affirmative action encounter far less hostility and internal and external stigma than students in anti-affirmative action states.
76. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 2-5 (1963).
77. Onwuachi-Willig, Houh & Campbell 112, at 1344-45.
78. Christopher A. Bracey, Getting Back to Basics: Some Thoughts on Dignity, Materialism, and a Culture of Racial Equality, 26 CHICANO-LATINO L. REV. 15, 39 (2006).
79. BEVERLY DANIEL TATUM, "WHY ARE ALL THE BLACK KIDS SITTING TOGETHER IN THE CAFETERIA?" AND OTHER CONVERSATIONS ABOUT RACE 52 (1997)
80. Discussing how questions regarding seating at lunch tables are generally framed.
81. Kevin Brown & Jeannine Bell, Demise of the Talented Tenth: Affirmative Action and the Increasing Underrepresentation of Ascendant Blacks at Selective Higher Educational Institutions, 69 OHIO ST. L.J. 1229, 1236 (2008)
82. Defining such persons as "ascendants" in order to emphasize "blacks' ascendancy out of chattel slavery and segregation" as well as limit persons in the category to those that "personally experienced America's racially discriminatory history their entire lives or were born from parents who were generally considered black at the time that affirmative action policies were first adopted . . . a product . . . of analyzing affirmative action from its inception from the perspective of the historical struggle undertaken by the black community to overcome its racial oppression in the United States").
83. Discussing the diverse backgrounds of "Black" students admitted to law schools
84. Arguing that the percentage of "Ascendants . . . may be considerably less than many administrators and members of the faculty and admissions committee realize".
85. Arguing that legacy Blacks, as well as black immigrants and multiracial students, serve the purposes of race-based affirmative action by advancing diversity and social justice.
86. Discussing the impacts of cultural assimilation and stereotypes on immigrants.
87. Derrick Bell, Diversity's Distractions, 103 COLUM. L. REV. 1622, 1630 (2003)
88. Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CALIF. L. REV. 953, 987-88 (1996)
89. Discussing the relationship between SAT scores and parental income.
90. Julie A. Helling, Law and Diversity Program: A Model for Attracting, Retaining, and Preparing Diverse Students for Law School, 4 SEATTLE J. SOC. JUST. 561, 565 (2006)
91. [M]any students take an LSAT preparation course and the typical cost is over $1,000.
92. Jerry R. Parkinson, Admissions After Grutter, 35 U. TOL. L. REV. 159, 163 (2003)
93. [T]aking an LSAT preparation course improves an applicant's score by approximately seven points.
94. The University of Michigan Law School's study which found that "individuals with lower LSAT scores and college grades tended to spend more time in public or unremunerated legal service" and that "following graduation, the school's black and Latino students succeeded in ways that eluded many of their white counterparts whose entrylevel credentials were higher" (footnote omitted)).
95. Stephen P. Klein, Law School Admission, LSATs, and the Bar, ACAD. QUESTIONS, Winter 2001-02, at 33, 34.
96. Kevin R. Johnson & Angela Onwuachi-Willig, Cry Me a River: The Limits of "A Systemic Analysis of Affirmative Action in American Law Schools", 7 AFR.-AM. L. & POL'Y REP. 1, 15 (2005)
97. Stating that the mismatch effect theory is flawed, as "[e]ven when the LSAT scores and UGPAs of African-American law school students are similar to those of their white peers, black students do not receive law school grades that are comparable to those of their white counterparts").
98. Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. PERSONALITY & SOC. PSYCHOL. 797, 808 (1995)
99. Demonstrating through a series of experiments that when told that a test was measuring a person's ability, black students performed worse than if they thought that it did not measure ability and concluding that "the present experiments show that making African American participants vulnerable to judgment by negative stereotypes about their group's intellectual ability depressed their standardized test performance relative to White participants")
100. Johnson & Onwuachi-Willig 142, at 20-21 (applying stereotype threat theory to black law students).
101. Richard D. Kahlenberg, 10 Myths About Legacy Preferences in College Admissions, CHRON. OF HIGHER EDUC. (Sept. 22, 2010), http://chronicle.com/ article/10-Myths-About- Legacy/124561/
102. Discussing legacy preferences at the undergraduate level and stating "legacy preferences continue to disproportionately hurt students of color
103. Discussing how underrepresented minorities make up "only 6.7 percent of the legacy-applicant pool" at selective colleges and universities as compared to 12.5% of the total applicant pool.
104. Discussing the fact that "being a legacy increased one's chance of admission to a selective institution by 19.7 percentage points".
105. "Moreover, this disparate impact is likely to extend far into the future. In 2008, African- Americans and Latinos made up more than 30 percent of the traditional college-aged population but little more than 10 percent of the enrollees at the U.S. News's top 50 national universities.")
106. SARAH R. CRISSEY, U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENT IN THE UNITED STATES: 2007 U.S. CENSUS CURRENT POPULATION REPORTS 4-5 (2009), available at http://www.census.gov/prod/2009pubs/p20-560.pdf
107. Providing high school diploma attainment rates for native, non-immigrants, as follows: 89.6% of non-Hispanic whites, 80% of Blacks, 76.5% of Hispanics of any race; and providing Bachelor degree attainment rates as follows: 30.1% of non- Hispanic Whites, 16.2% of Blacks, and 15.9% of Hispanic of any race). 153.
108. Kahlenberg 147 ("Because they disproportionately benefit whites, legacy preferences reduce, rather than enhance, racial and ethnic diversity in higher education.
109. And rather than being a remedy for discrimination, they were born of discrimination. . . . They explicitly classify individuals by bloodline and do so in a way that compounds existing hierarchy.").
110. See Jodi S. Cohen et al., U. of I. Jobs-for-Entry Scheme, CHI. TRIB. (June 26, 2009), http://www.chicagotribune.com/news/local/chi-ui-trustees-26- jun26,0,3541380.story
111. Lee A. Daniels, 'Clout U.': The Admissions Scandal at the University of Illinois, DEFENDERS ONLINE (Sept. 29, 2009),http://www.thedefendersonline.com/ 2009/09/29/%E2%80%98clout-u-%E2%80%99-theadmissions- scandal-at-the-university- of-illinois.
112. Kahlenberg 147 ("At Texas A&M, 321 of the legacy admits in 2002 were white, while only three were black and 25 Hispanic. At Harvard, only 7.6 percent of legacy admits in 2002 were underrepresented minorities, compared with 17.8 percent of all students. At the University of Virginia, 91 percent of early-decision legacy admits in 2002 were white, 1.6 percent black, and 0.5 percent Hispanic.").
113. The impact of the scandal on racial minorities is unclear, but considering that Whites hold most positions of political power, it is likely to disproportionately help them.
114. Devon Y. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CALIF. L. REV. 1139 (2008).
115. The authors recognize that the classification "Latino" represents a very large, encompassing ethnic group that is multiracial. However, for the purposes of classifications, many sources use it as one monolithic group in comparison to multi-ethnic, and in some regards multi-colored racial groups.
116. As a result, we will not disturb the comparative groups.
117. Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 GEO. L.J. 1079, 1103 (2010)
118. Discussing that although race is a social construct, physical markers include not only skin color, but hair texture).
119. BART LANDRY, THE ECONOMIC STAGNATION OF THE BLACK MIDDLE CLASS: A BRIEFING BEFORE THE UNITED STATES COMMISSION ON CIVIL RIGHTS 24-25 (2005), available at http://www.usccr.gov/pubs/122805-BlackAmericaStagnation.pdf
120. Statement of Professor Landry, Department of Sociology, University of Maryland, College Park)
121. Describing upper class occupations as an area of highly "intense" discrimination, and stating that "in 1983, with 43.4 percent and 35.7 percent of whites and blacks concentrated in the upper middle class, there was a gap of 7.7 percentage points.
122. The gap worsened by 1990 before declining again by 2002, but is still standing at about 8.1 percent".
123. Onwuachi-Willig 10, at 1166 ("For example, studies have shown that '[f]or every 72 cents a dark-skinned Black [makes], a light-skinned Black earn[s] a dollar.'" (alterations in original)).