Samuel R. Bagenstos
University of Michigan Law School
March 4, 2014
A Nation of Widening Opportunities? The Civil Rights Act at 50 (Ellen Katz & Samuel Bagenstos, eds., 2014), Forthcoming
U of Michigan Public Law Research Paper No. 390
Throughout the civil rights era, strong voices have argued that policy interventions should focus on class or socioeconomic status, not race. Calls for class-not-race interventions are likely to grow stronger over the next few years. The Supreme Court’s recent decision in Fisher v. University of Texas at Austin — which did not formally change the law governing affirmative action in higher-education admissions but did highlight the vulnerability of the policy with the current Supreme Court — has been read by some commentators as auguring a decisive turn toward class-based affirmative action. This, then, seems an opportune time to examine the class-not-race position that underlies them.
This chapter seeks to develop an understanding of what sincere advocates of the class-not-race position mean and offer an initial assessment of whether that position is a sensible one. Sincere advocates of the class-not-race position are making one of two distinct arguments. The first argument is basically a strategic one. That argument accepts that racial inequality is a fundamental problem that we must attack. It argues, however, that for a variety of pragmatic reasons race-targeted approaches are not likely to be the most successful ways of attacking them. There is much to this argument, but it seems to suffer a basic flaw. Problems of race inequality go well beyond problems of economic or class inequality. And there is a lot of reason to believe that efforts to respond to class inequality that don't take race into account will either not help or actually exacerbate race inequality.
These points lead to the second distinct argument that advocates of the class-not-race position may be making. That argument is that race inequality is not in fact the fundamental problem that we should attack but is at best an example or a consequence of class or economic inequality. If we have a limited reservoir of enforcement resources, redistributive largesse, or public compassion, the argument implies, we should focus that reservoir on eliminating class-based inequality. Some argument like this explains why many people influenced by traditional Left politics support the class-not-race position. Nonetheless, this chapter contends, that argument is wrongheaded. The problem of racial inequality overlaps with, but is importantly distinct from, economic disadvantage. The chapter concludes by assessing — ultimately pessimistically — the prospects for getting beyond the class-not-race position.
Number of Pages in PDF File: 19Accepted Paper Series
Date posted: March 6, 2014
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