Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate
UCLA Law Review Discourse, 64, 174-229, 2016
19 Pages Posted: 18 Jul 2016 Last revised: 3 Sep 2016
Date Written: July 18, 2016
This Article challenges the perception of affirmative action as a racial preference. That perception has made the policy less constitutionally secure and more difficult normatively to defend. We focus our analysis on middle-class African Americans. We do so because the framing of affirmative action as a racial preference has particular traction when its beneficiaries are perceived to be black but not economically disadvantaged. Which is to say, if people believe that colleges and universities employ affirmative action to admit African Americans who are not economically disadvantaged, the conclusion that affirmative action is a racial preference is easy to reach: Black students who are not disadvantaged are getting preferential treatment because of their race. Liberals defend this perceived preference because it advances diversity and contributes to the “robust exchange of ideas.” Conservatives reject it because it violates their understanding of colorblindness and because, they claim, the policy effectuates “reverse discrimination” against whites.
This Article reframes the debate. More precisely, it explains why affirmative action for middle-class blacks is neither a racial preference for African Americans nor reverse discrimination against whites. We locate our argument in the context of admissions. Specifically, we identify a number of disadvantages black students — across class — likely experience prior to and in the context of applying to colleges and universities. We argue that these disadvantages can diminish the competitiveness of a black student’s admissions file and that affirmative action helps to counteract this negative effect. This levelling-of-the-playing-field dimension of affirmative action suggests that the critical question with respect to the policy is not whether the law should permit college and universities to prefer the black child of a lawyer over the white child of a coal miner but why policymakers, lawyers, judges, and the public at large continue to frame affirmative action as a racial preference.
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