The Visibility of Socioeconomic Status and Class-Based Affirmative Action: A Reply to Professor Sander
29 Pages Posted: 2 Feb 2012 Last revised: 20 Mar 2012
Date Written: 2011
The visibility of socioeconomic status features prominently in a new symposium issue of the Denver University Law Review dedicated to class diversity in American legal education. In the lead article, Richard Sander argues that law schools should replace racial preferences with socioeconomic preferences in their admission processes. Such class-based affirmative action, argues Sander, will be cheaper and easier to implement compared with the traditional race-based affirmative action because socioeconomic status is relatively invisible and therefore recipients of socioeconomic preferences will not experience the costs of affirmative action, such as stigmatization, bias, stereotyping and low self-esteem.
In a fiery reply, Richard Lempert disagrees with Sander’s thesis, questions the wisdom of pursuing class-based affirmative action as a substitute for race-based affirmative action and challenges some of the empirical findings that support Sander’s claims. Surprisingly, however, Lempert agrees with Sander about the relative invisibility of socioeconomic status and argues that such invisibility explains why class-based affirmative action would not contribute to the overall goal of fostering diversity in law schools.
This reply asserts that both Sander and Lempert are mistaken about the invisibility of socioeconomic status and preferences. Socioeconomic status and the related concepts of social and cultural capital which inform and contribute to it, play a significant role and have a considerable impact on the experience of law students while at law school and on their legal careers after graduation. Importantly, socioeconomic status and the possession of social and cultural capital (or lack thereof) are highly visible, and students of lower socioeconomic status are unlikely to be able to pass for affluent students or completely cover their status effectively.
Sander invokes the invisibility of socioeconomic preferences to bolster his argument that class-based affirmative action should replace racial-based affirmative action. However, the fact that socioeconomic status is visible does not constitute an argument against class-based affirmative action. Rather, while the visibility of socioeconomic status weakens Sander’s argument regarding the relative advantage of administering socioeconomic preferences over racial preferences, it supports the case for class-based affirmative action and its likely contributions to enhanced diversity in legal education, alongside race-based affirmative action. The visibility of socioeconomic status only means that law schools committed to diversity have to appreciate the possible costs socioeconomic preferences might impose on recipients and respond in appropriate fashion by pursuing measures to enhance the educational experience of recipients and to mitigate the costs of affirmative action.
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