A Third Perspective to Affirmative Action

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Since the Civil Rights movement, when affirmative action was implemented in 1965, there have been many debates about whether or not it was the right decision. Affirmative action is a policy with race- and gender-based preferences, originally, which aimed to end discrimination in education, employment and government contractors. It was implemented to attempt to equalize the racial discrimination that this country was ‘“founded” on. People in favor argue that it is assisting marginalized races and lower socioeconomic classes because they have less resources, and it compensates for socioeconomic inequalities. On the other hand, people against affirmative action believe that although it was adequate when implemented, it is now outdated, and it is a form of racial prejudice.

There has been a third opinion developed in the long time debates over whether it is right to take race, ethnicity and sex into account when admitting students into higher education. Richard Kahlenberg, a senior fellow at The Century Foundation, a liberal think-tank, has proposed a new perspective to the debate and is the leader of this policy reform: class-based affirmative action. When and why did Kahlenberg’s policy proposals arise for class-based affirmative action in higher education, and to what extent have they become implemented?

In 1993, Kahlenberg began to reconsider affirmative action and it’s actual effectiveness, when there were many debates around the topic. Kahlenberg argues this new approach to affirmative action is crucial in the face of the stratification that is currently present in education, but specifically, in higher education. Richard Kahlenberg provides a compelling argument for a class-based affirmative action, which demonstrates a more effective way of dealing with social inequalities. Overall, Kahlenberg’s remedy has not seen widespread success in the United States context. Kahlenberg argues several reasons for this, one being financial issues.

In 1996, when Kahlenberg, published his California Law Review titled, Class-Based Affirmative Action, one of his first pieces on the topic, there were also discussions about the elimination of affirmative action. In California, for example, in November of 1996 proposition 209, “provided that the state ‘shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting” (Kahlenberg 1997:XVI). Although Kahlenberg began to write and published his law review before Proposition 209 was instated, there were many debates around race- and gender-based affirmative action, and whether it should be eliminated altogether. Kahlenberg (1997) claims that in 1993, when he was writing another publication about class-based affirmative action, The Remedy (1997), he viewed race- and gender-based affirmative action as eroding and collapsing before his eyes, which is when he decided that there needed to be an alternative. Kahlenberg (1997) attributes the increase of interest in class-based affirmative action to Proposition 209, and affirmative action being under attack. California’s Proposition 209 caught the attention of several other states, including Texas, Colorado, Louisiana, and New Jersey, but many knew that affirmative action could not be completely abolished. Kahlenbergs argument for a class-based affirmative action quickly picked up attention as an alternative to race- and gender-based preferences, especially due to the lack of other alternatives being presented.

In the United States, the cycle of poverty is a vicious and never ending cycle for most who are within it, which is part of the reason Kahlenberg asserts that affirmative action must be reformed, “a fairer society in which children of short parents might still grow up to be short, but children of low-income parents would be less likely to end up poor adults” (Kahlenberg 2012). Many Americans had lost hope in affirmative action after it had gone from implementation to practice, and many people were disappointed. Kahlenberg viewed class based affirmative action as the most logical remedy, “This approach would provide preferences in education, employment, and government contracting based on class or SES, rather than race- or gender- implicitly addressing the current-day legacy of past discrimination without resorting to the toxic remedy of biological preference” (Kahlenberg 1996a:1037-8). One of Kahlenberg, and others, first argument against race-based affirmative action is, “How can we justify providing a leg up to the daughter of a wealthy black daughter over the daughter of the poor white janitor?” (Kahlenberg 1996b). Although this argument has been taken from conservative thinkers, it has still been given validity for people like Kahlenberg and Connerly. Kahlenberg can use this argument in favor of class-based affirmative action because if it was implemented it would solve the problem of a wealthy student of color attending a school of a low-income white student. A more factual based argument that Kahlenberg has recently presented is, “In practice, affirmative action programs often benefit the most advantaged students of color.  (Former college presidents) William Bowen and Derek Bok found that 86% of Black students at the 28 elite universities they studied were from middle- or upper-status families” (Roach 2003). Race- and gender-based affirmative action is now helping students who are already advantaged, which should not be the point. Race- and gender-based affirmative action was originally instated to try to diminish inequalities in this country, not create more.

In Kahlenbergs, The Remedy (1997), he outlines three arguments for why class-based affirmative action will be more beneficial for the current social inequalities, than race- and gender-based affirmative action. The first goal of class-based affirmative action, is bona fide equal opportunity. The second, “will indirectly compensate for past discrimination, bring about natural integration and provide a bridge to a color-blind future” (Kahlenberg 1997:83). And lastly, class-based preferences will endure the political and juridical arguments that, as we have seen, race- and gender-based preferences have not always endured, for example, Proposition 209.
Kahlenberg (1997) claims that class-based affirmative action is the best system of preferences because it provides equal opportunity, which is the central focus to class-based affirmative action. Kahlenberg uses Professor James Fishkin’s definition of equal opportunity, “the central doctrine in modern liberalism for legitimating the distribution of goods in society” (The Remedy). Kahlenberg claims that social circumstances should not factor into one’s life chances and opportunities. Kahlenberg has two reasons why we should pay more attention to equal opportunity. The first, is practical reasoning, providing equal opportunity should not necessarily mean equal results, which would organize society to have the most qualified people in the most qualified positions. In this sense, Kahlenberg asserts that formal equal opportunity is not enough, because it does not account for people’s social position that they are born into. The second, a moral reasoning, is that equal opportunity allows the people who work hard to have a job reflective of that, and vice-versa for those who do not (Kahlenberg 1997). If our values are hard work and merit then it is morally unsound to reward people for being more “worthy” when they have different starting positions.

The second argument Kahlenberg presents for class-based affirmative action has three prongs. The first, compensation for past discrimination, which he argues class-based affirmative action does by compensating for discriminative economic legacies. Kahlenberg believes that class-based affirmative action addresses this issue of compensation more because “unlike a system of racial preferences, class-based preferences do not assume a direct linear link between an individual’s race and his rightful position in life’s competition” (1997:102).  By this, Kahlenberg was referring to past policies, for example, housing discrimination policies, like redlining, that did not allow black people to live in certain areas, which still have negative ramifications today. Kahlenberg argues that class-based affirmative action will combat that, which race- and gender-based lacked to. The second prong to this argument was that class-based affirmative action would promote integration. Since their is a larger proportion of minority students who are of the poor or working class, it will affect those students the most, which will indirectly increase diversity. This is also a less toxic way of promoting diversity, than race-based preferences because that can create hostile attitudes and grudges.

The third prong is that class-based preferences will be able to endure political and juridical arguments more so than race- and gender-based preferences. Initially, the Supreme Court, was in favor of race- and gender-based affirmative action, but as time continued concern increased over its actual progress. Kahlenberg defends that, “For while almost any race-based preference is today vulnerable to attack by the Supreme Court, the Court is almost sure to uphold the constitutionality of class-based affirmative actions programs” (1997:107). Race is known as a suspect classification, which means that it requires greater scrutiny for justification than other legislations. Politicians have attempted to make class a suspect classification, but have failed, which means that there is no law within the constitution that protects the poor. In other words, class-based preferences will be easier to defend, because unlike race they are not suspect classifications under greater scrutiny. Similarly, gender-based preferences are not fully suspect, and they have been met with much less scrutiny than race-based. Not only are race-based preferences difficult to hold up in court and the political sphere, but are also widely disapproved of by the public. “In most national polls, racial preferences in employment or education – even those not involving quotas- are opposed by more than 80 percent of whites and 50 percent of blacks” (Kahlenberg 1997:109). This shows how not only are the dominant group, but also the subordinated group who actually benefits from affirmative action, do not believe that race-based is the answer.

Kahlenberg argues that class-based affirmative action will also be the best way to diversify higher education. Diversifying higher education is still an issue, as Kahlenberg highlights in several of his articles. Recent cases include Grutter v. Bollinger, which forced University Michigan Law School to use race-based decisions in admissions. Others are Regents of the University of California v. Bakke (1978), Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016), which all upheld race-based affirmative action at different institutions. Regents of the University of California v. Bakke (1978), set an important new precedent. The US Supreme Court decided, in light of this case, that it was unconstitutional to have racial quotas, specifically in relation to the equal protection clause, which states that “no state shall deny to any person within its jurisdiction the equal protection of the laws” (Affirmative Action: Court Decisions, 2016). This case upheld race-based affirmative action, but abolished quotas. UC v. Bakke (1978), was one of the first cases to seriously challenge  affirmative action in higher education.

One of the most controversial, and widely discussed suits today that have come close to class-based affirmative action occurred at the University of Texas at Austin (UT Austin), known as Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016). Although both of these cases have upheld race-based affirmative action at UT Austin, it has brought race-based affirmative action into more scrutiny and has opened up the conversation for an alternative, class-based affirmative action. In 2008, when Abigail Fisher was denied admissions to UT Austin, she filed a complaint against UT Austin that she wished to be reassessed under a race-neutral principal. In 2011, the Fifth Circuit, which is a branch of the Supreme Court, covering Louisiana, Texas and Mississippi,  whose justice is Clarence Thomas, found that UT Austin’s admissions policies were constitutional. Once Fisher heard the results, she was not satisfied, Fisher then took the case all the way to the Supreme Court. After hearing arguments, the Supreme Court decided to vacate the Circuit’s opinion and demand revision at the Fifth Circuit. The Fifth Circuit then ruled that, Fisher’s case was not sufficient against UT Austin, so the Supreme Court decided to review the case again. After another few years of listening to arguments, in June 2016, the Supreme Court ruled that UT Austin’s race-conscious policy is constitutional.

Fisher’s case is the closest colleges or universities have come to ending race-based policies, and utilizing other factors like socioeconomic status or income to decide who should get a leg up in college admissions. The Supreme Court suggested, in the 2013 ruling, that UT Austin’s race-based preference program was constitutional, but that race-neutral tactics should be employed when possible. The Supreme Court, like the United States public, want to achieve diversity, but do not like to use racial preferences to get there.

One of the main arguments Kahlenberg attributes to the lack of class-based affirmative action in higher education, or even the discussion of it, is the financial implications is has. To economically diversify a school there will need to be more money for programs like financial aid (Kahlenberg 2015). It is not in colleges admissions interest to give class-based preferences because that means they will be giving out more governmental support, and will have less students attending the school who pay full tuition.

Although Kahleberg and many others provide persuasive arguments for different affirmative actions, my concern is the reason affirmative action was implemented was to attempt to equalize the playing field from the past discrimination this country was founded on: the kidnapping and stealing of African peoples to be indentured slaves in the colonies for the benefit of white Europeans. Affirmative action was implemented to equalize this injustice and provide opportunities where they may not have existed before, which it has failed to do. In this sense, I argue that affirmative action might not be able to do an adequate enough job to amend the suffering that took place almost two centuries ago and continues to pervade society today. Affirmative action attempts to deal with the problem of “race” , racial inequalities, but does not adequately confront the structural issues of “racism”, and how “race” is upheld by “racism”. It is attempting to neutralize “race”, but does not actually get to the core problem: the United States is a white-supremacist, racist nation, with racism embedded in our institutions. Affirmative action, whether race-, gender-, or class-based, does try to account for some discrimination, but regardless of the number of people of color affirmative actions puts into different institutions, it does not change people’s attitudes toward them. It is kind of a half-measure in that, it increases levels of education among people of color but does not change the reasons why they are so economically disadvantaged. If people of color can’t get loans, housing, or education in the same way as whites, then affirmative action is only tackling one aspect of the greater, structural problem.  Affirmative action needs to be accompanied by a restructuring of the political and economic landscape to ensure that subordinated people can meet their own desires and truly act as autonomous actors in society.

Kahlenbergs third perspective on affirmative action offers a class-based approach as opposed to race- or gender-based preferences. Kahlenberg argues that this new form of affirmative action is crucial to higher education, especially due to the current socio economic stratification that exists. Kahlenbergs argument took off in the latter half of the 1990’s, when states, like California, were beginning to abolish race- and gender-based preferences. The first goal of class-based affirmative action, is bona fide equal opportunity. The second, “will indirectly compensate for past discrimination, bring about natural integration and provide a bridge to a color-blind future” (Kahlenberg 1997:83). And lastly, class-based preferences will endure the political and juridical arguments that, as we have seen, race- and gender-based preferences have not always endured.


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