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Howard
Law Journal
Winter, 2000 43 How. L.J. 273
Reviewed by Harvey Gee*
I. INTRODUCTION Class-based
affirmative action is a remedy to the moral and political thicket of affirmative
action, a way of meeting the goals racial preferences seek to achieve
while avoiding the problems racial preferences Since the 1964 Civil Rights Act, affirmative action programs have attempted to remedy past discrimination against minorities by helping them gain access to higher education and better jobs. Supporters of affirmative action argue that it rectifies the effects of past discrimination by providing opportunities for groups historically discriminated against. Opponents of affirmative action, on the other hand, argue that race-based preferential treatment causes "reverse discrimination."2 Current attacks on these programs are divisive, pitting one group against another, and creating the false perception that one group succeeds only if another fails. Many divergent views have emerged from this debate. One of the more interesting views rests with the idea of replacing race-based [274]affirmative action with an alternative based on socio-economics. In The Remedy: Class, Race, and Affirmative Action, Richard Kahlenberg argues that current race-based affirmative action programs should be replaced with a class-based approach which would benefit both poor blacks and poor whites. Kahlenberg's idea of class-based affirmative action has merited considerable attention as a potential solution to one of the most divisive issues in this country. Kahlenberg argues that racial preferences in affirmative action should be replaced by a class-based approach. The author's two main arguments are: (1) race-based affirmative action is a failure because, while its original intentions were admirable, its actual implementation has subverted the traditional standards of merit and qualification and (2) class-based affirmative action should replace race-based affirmative action because the former "colorblind" approach would assist the most deserving in our society. This brief essay summarizes and critiques the primary arguments made in Kahlenberg's provocative work. This essay is divided into five sections. Part II describes Kahlenberg's class-based affirmative action scheme. Part III critiques the failures of race-based affirmative action programs to achieve diversity. Part IV addresses the unique place of Asian Americans within the debate over class-based affirmative action. Part V provides an overall assessment of The Remedy, concluding that it fails to make the case for shifting the affirmative action paradigm from race to class. II. ARGUING FOR A CLASS-BASED AFFIRMATIVE ACTION SCHEME Kahlenberg argues that university admissions and employment hiring should be based solely on class, and that race and sex should not be considered.3 He then offers class-based affirmative action as an alternative in the areas of higher education and employment. Kahlenberg uses higher education as an example of where class-based programs can be implemented readily by giving to low-income applicants a "plus" during the admissions process.4 He states that a class-based program would be easier to implement in higher education than in the employment context, since universities, in theory at least, have [275] more biographical information about their applicants.5 Because employers are less likely to have access to the information needed to implement a class-based affirmative action scheme, Kahlenberg advocates using a simplified method of defining class.6 Kahlenberg suggests employers use class-based preference for entry-level positions so as to benefit the vast number of Americans "who go straight from high school to the job market."7 However, he opposes the use of class preferences for promotion because he perceives it to be the equivalent of giving race-based preferences for grading in the academic context, which is unnecessary and excessive in a pure meritocracy forum.8 Next, Kahlenberg suggests that a class-based affirmative action concept serves as an alternative that benefits both poor African Americans and poor whites. Because African Americans are disproportionately poorer compared to whites,9 they would benefit from class-based affirmative action. He contends that by helping the most disadvantaged African Americans, class-based affirmative action arguably does a better job of compensation for past discrimination than race-based affirmative action.10 Further, Kahlenberg believes that a color-blind, class-based college admissions program would recruit a similarly diverse pool of students.11 III. CRITIQUING THE FAILURES OF RACE-BASED AFFIRMATIVE ACTION PROGRAMS TO ACHIEVE DIVERSITY Kahlenberg devotes a large portion of his book to an analysis of the failures of the diversity rationale for affirmative action, and a critique of race-based affirmative action programs in the educational context.12 To Kahlenberg, diversity-based affirmative action programs that seek a proportionate representation of minority students are problematic.13 Kahlenberg believes that, "diversity programs have all the flaws of broad compensatory racial balancing programs and, [276] moreover, do not ever pretend to be in the business of compensation."14 The author cites the notion of diversity on university campuses to mean the active recruitment of immigrant students, to "whom the United States owes no compensation, and who are for the most part not disadvantaged."15 Moreover, Kahlenberg argues that "because diversity is keyed to underrepresentation rather than past discrimination, it forfeits the moral claim of being compensatory and cares not whether the policy actually hurts groups historically subject to discrimination."16 Kahlenberg's claim that diversity-based affirmative action programs are far from perfect is valid. For example, "diversity programs that use race or ethnicity as proxies for diversity of social experience and social affiliation" may fail to accurately and completely capture the viewpoint and experiences of the groups that they seek to include, and thus real diversity will suffer.17 Perhaps a better alternative is for universities to examine the actual experiences, histories and cultures of applicants when they define which underrepresented groups they want to include in their affirmative action programs.18 Still, Kahlenberg fails to fully appreciate the benefits of diversity. Kahlenberg does not acknowledge that diversity can be used to raise cultural awareness and destroy the illusion of a generic race, preserving and celebrating those cultural differences, that strengthen our American heritage. The use of the term "diversity" emphasizes the idea that the benefits of fostering diversity will carry forward and affect future generations by exposing them to different perspectives.19 Because diversity admissions programs are essential to providing equal participation for underrepresented minorities, support should still be given to race-conscious diversity programs by all members of society, especially university administrators, their admissions departments, and applicants of diverse racial and ethnic communities. [277] IV. PROBLEMS PRESENTED BY ASIAN AMERICANS AND THE MODEL MINORITY MYTH Like most books on affirmative action which focus their discussion on the traditional black/white paradigm, The Remedy avoids any in-depth analysis of Asian Americans within the affirmative action arena.20 This is especially noticeable in Kahlenberg's critique of the diversity rationale for affirmative action.21 Perhaps to his dismay, the admission of Asian Americans under a class-based system would create results which would suggest that his ideas are far from being as perfect as he seems to imply. Recent research contradicts Kahlenberg's optimistic predictions that class-based affirmative action will achieve diversity. Professors Michael Omi and Dana Takagi, referring to the University of California's abolishment of affirmative action programs in 1995 and considering students with comparable academic qualifications, argue that:
Contrary to Kahlenberg's theories and beliefs, class-based affirmative action would not actually bring about a diverse student body, nor would it assist those most deserving. Because Asian Americans are generally poorer than Latinos and African Americans,23 and have such high academic achievement levels, a class-based affirmative action system would result in an increase in Asian American enrollment and therefore, a class-based system, which is far from being racially balanced.24 This over-representation of Asian American students would run counter to the goals of having a diverse student body. These facts illustrate the intractability existing between issues of diversity [278] and Asian Americans that has always been problematic, and will likely continue. Kahlenberg's
omission in referring to the effects of class-based affirmative action
with respect to Asian Americans is noticeable, as well as his use of the
model minority myth to bolster his arguments against race-based affirmative
action. In various parts of the book, Kahlenberg uses the model minority
stereotype to place Asian Americans in a falsely The recent affirmative action case, Hopwood v. State of Texas29 is a prominent example of the precarious place in which Asian Americans are often situated in the debate. In Hopwood, the Fifth Circuit found the University of Texas Law School's affirmative action policy unconstitutional and enjoined future consideration of race as a factor in the school's admissions process.30 Although a great deal has been written about the Hopwood decision and its effect on the future of affirmative action generally, many scholars have overlooked a crucial point in the case and its legacy - the use of Asian Americans as constructive [279] "Whites" by the Fifth Circuit and affirmative action opponents. In Hopwood, the University of Texas chose not to include Asian Americans as a preferred minority group in its 1992 affirmative action program, despite the fact that there was greater underrepresentation of Asian Americans in comparison to African Americans and Latinos in the Texas Bar. Likewise, the Fifth Circuit, in relying on "the binary opposition of high-scoring Whites versus low-scoring "Blacks/Mexicans," makes no mention of Asian Americans in its analysis.31 In a recent contribution to the literature on the affirmative action debate and the study of the Hopwood decision, Tomiko Brown-Nagin argues that:
According to one commentator, within the affirmative action debate, "Asian Americans become the 'innocent victims' in place of whites. As 'model minorities,' both facets of that title are important to the martyrdom of Asian Americans - 'model' hence 'innocent,' and 'minority' hence 'victim.'"33 In reality, the basis for including Asian Americans in affirmative action programs is to fulfill the underlying goals of affirmative action: remedying the effects of past discrimination, preventing ongoing and future discrimination, and encouraging inclusiveness and diversity within academic institutions and the workforce.34 In fact, Asian Americans have benefited from affirmative action in the past, and they still need affirmative action to break through the "glass ceiling" [280] that prevent many Asian Americans from progressing to the levels of corporate management, to reconcile employment discrimination, and to remedy disparities in public sector employment and contracting.35 V. CONCLUSION Despite its usefulness in showing how the traditional understandings of race and class obscure the realities of racism and discrimination, The Remedy fails to make the case for shifting the affirmative action paradigm from race to class. Kahlenberg fails to provide enough support for the premise that class is materially different from race. Although Kahlenberg presents a comprehensive and plausible system for factoring in socioeconomic class in academic admissions and entry-level employment positions, the major critique of his book is that it fails to address the dual problems of poverty-race. FOOTNOTES 1 Richard Kahlenberg, The Remedy: Class, Race, and Affirmative Action at xii (1996). 2 See Michael S. Greve, Ruling Out Race: A Bold Step to Make Colleges Colorblind, Chron. of Higher Educ., Mar. 29, 1996 at B2 (discussing broad trend toward official color blindness as being problematic); see also Lino A. Graglia, Affirmative Action - Have Race and Gender Conscious Remedies Outlived Their Usefulness?-Yes: Reverse Discrimination Serves No One, A.B.A. J., May 1995, at 40 (arguing that "affirmative action programs contradict the principle that nothing should be done by public institutions that cannot be done openly"). 3 Kahlenberg, supra note 1, at 105. 4 See id. at 123-24. 5 See id. at 125. 6 See id. 7 Id. 8 Id. 9 See Christopher Edley, Jr., Not All Black and White: Affirmative Action, Race, and American Values 42-43 (1998) (citing examples of present racial inequalities which exist between African Americans and whites today). 10 See id. at 164-65. 11 See id. at 171. 12 See id. at 33-35. 13 See id. at 33. 14 Id. at 75. 15 See id. at 75. 16 Id. 17 Miranda McGowan, Diversity for Whom?, in Race and Representation: Affirmative Action 245 (Robert Post & Michael Rogin eds.1998). 18 Id. at 241 (suggesting that schools seeking to promote diversity should consider actual experiences and cultural background of groups they wish to include in their affirmative action programs). 19 See id. at 237 (asserting that racially diverse students bodies promote better and different perspectives and ideas). 20 Asian American Scholar activists have begun to address the place of Asian Americans in the post-civil rights era. See generally Harvey Gee, Beyond Black and White: Selected Writings by Asian Americans Within the Critical Race Theory Movement, 30 St. Mary's L.J. 759 (1999). 21 See id. at 76-77. 22 See Michael Omi and Dana Y. Takagi, Situating Asian Americans in the Political Discourse on Affirmative Action, in Race and Representation: Affirmative Action 278 (Robert Post & Michael Rogin eds., 1998). 23
See Ramon G. McLeod, Preferences Based on Class Gain New Favor, S.F. 24 See id. at A4. 25 Angelo Ancheta, Race, Rights, and the Asian American Experience 158 (1998). An expansive review of Ancheta's important work can be found in Harvey Gee, Race, Rights, and the Asian American Experience: A Review Essay, 13 Geo. Immigr. L.J. 635 (1999). 26 See id. at 47. 27 See id. 28 See Frank H. Wu, Neither Black Nor White: Asian Americans and Affirmative Action, 15 B.C. Third World L.J. 225, 272 (1995). Wu's article is one of the most influential works in Asian American legal scholarship. 29 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). 30 Id. (holding that the University of Texas could not give any consideration to race in determining admissions to its law school). 31 See Tomiko Brown-Nagin, A Critique of Instrumental Rationality: Judicial Reasoning About the "Cold Numbers" in Hopwood v. Texas, 16 Law & Ineq. 359, 367 n.51 (1998); see also Harvey Gee, Comment, Changing Landscapes: The Need for Asian Americans to be Included in the Affirmative Action Debate, 32 Gonz. L. Rev. 621, 648-49 (1997) (discussing the exclusion of Asian Americans from the University of Texas Law School affirmative action program). 32 See Brown-Nagin, supra note 37, at 367 n.51. 33 See Wu, supra note 34, at 272-73. 34 Ancheta, supra note 31, at 158. 35 See id.
[Used by Permission]
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