December 24, 2015

Playing the Class Card in Racial Affirmative Action Cases

Fisher v. Texas, Supreme Court

by Kimberly West-Faulcon, Professor of Law, Loyola Law School in Los Angeles. Professor West-Faulcon holds the endowed James P. Bradley Chair in Constitutional Law at Loyola Law School, and is  author of an amicus brief filed in Fisher v. Texas. Follow on her on Twitter and Facebook.  

Supreme Court Associate Justice Antonin Scalia’s remarks earlier this month during oral arguments in Fisher v. Univ. of Texas at Austin that African Americans may be better off in “slower track” colleges were an articulation of the counterintuitive and fully debunked theory that Black and Latino students would benefit if the Supreme Court were to rule that racial affirmative action violates the 14th Amendment Equal Protection Clause.  By the way, among the major debunkers of the so-called “mismatch hypothesis” are former Harvard and Princeton presidents and authors of the book The Shape of the River—Derek Bok and William Bowen.  Bok and Bowen’s findings contradict Scalia’s observations about the benefits of affirmative action for students of color.  How Supreme Court Justice Anthony Kennedy—the notorious “swing vote” on the current Supreme Court—reacts to Scalia’s accurate but stark articulation of the mismatch hypothesis will likely dictate the future of racial affirmative action by colleges and universities.  However, Kennedy’s rejection of the idea that Blacks are “ill-matched” to elite schools will not be enough for the University of Texas to pull out a victory in the Fisher case.  Kennedy will also have to reject another common theory long-invoked by critics of racial affirmative action policies—the theory that racial affirmative action is “classist.” 

In specific terms, education writer Richard Kahlenberg’s charges (in a brief filed in the case) that the University of Texas considers race in a manner that is “classist” has a key similarity to Justice Scalia’s remarks—both focus on a purported negative attribute of Black students instead of either the details of UT Austin’s admissions policy, particularly its very restrained consideration of race, or the fact that, due to her less-than-stellar high school grades and SAT score, Abigail Fisher has a weak constitutional claim.  Instead, Kahlenberg encourages the Court to view 90 percent of Black students at top colleges as financially privileged enough to be considered “wealthy.”  Completely ignoring the very real “racial wealth gap” in this nation, the brief Kahlenberg submitted to the Supreme Court goes so far as to state: “a poor white student from a trailer park might add more diversity than a wealthy African American graduate of a prep school.”  This proposition is racially divisive, contrary to research findings of the educational benefits of “diversity within diversity,” and based on data that is either very weak or irrelevant.

First, Kahlenberg’s brief claims that “nine in ten black students are middle and upper class”—interestingly, for support of this claim, he relies on a study by the former presidents of Princeton and Harvard Universities who disagree with Kahlenberg on the propriety of racial affirmative action. However, Bok and Bowen report income datanot wealth data—that 71 percent of African Americans had “family income over $22,000” and that 15 percent had family income above $70,000.  Adding 71 percent and 15 percent (86 percent) is what seems to get Kahlenberg to the “roughly nine in ten” figure.  This move completely ignores the critical fact that income and wealth are very different measures and that passing the threshold of $22,000 annual income does not make a Black family wealthy.

Second, another weakness in Kahlenberg’s  assertion of Black “affluence” is that it relies on a study by minority mismatch expert Richard Sander based on a small sample size—“a total of 61 black respondents at elite schools” and a 2011 study by Sander in which Sander himself points out that being “upper-middle-class” “means something different” when you are Black “than what it means when applied to whites or Asians” because African Americans “have much lower wealth at a given level of income” and “middles-class blacks are much more likely to live in segregated neighborhoods with high poverty rates.” 

Also not mentioned by Kahlenberg are the numerous national studies finding racial disparities in wealth and the persistent racial discrimination in housing, credit markets and employment that causes the racial wealth gap.  A white family earning $30,000 is likely to have $74,000 in assets whereas a Black family with the same income typically has only $14,000.  The gap is worse for higher income Black families—white families with incomes above $50,000 have assets of $240,000 but African American families with that income have only $18,000.

Kahlenberg’s vision for a better future due to the elimination of racial affirmative action ignores this nation’s long and sordid history of legally sanctioned racial discrimination against African Americans—a history that explains why the University of Texas believes that race and class matter today in America. The reality is that the number of “prep school-educated” or wealthy Black students is quite small.  In contrast, the number of poor whites is quite large.  To suggest that the former group is keeping the latter out of elite universities is disingenuous.  I firmly agree that poor white children should have fair access to elite higher education.  But, pitting poor whites against the small numbers of Black students admitted to highly selective universities creates a wedge between whites and Blacks at a time when our country does not need another one.