Richard Rothstein: The Problem with Class-Based Affirmative Action

Any day now, the Supreme Court could strike down race-based affirmative action in college admissions—an outcome that would represent a dramatic setback for racial equality in the United States. What should schools do in response? Some advocates have proposed giving preference to applicants with low socioeconomic status, regardless of race—for example, students whose parents have low levels of wealth. Because African Americans tend to have less wealth than white Americans, the thinking goes, wealth-based affirmative action would still give a boost to Black students.

But wealth-based preferences are not an adequate substitute for race-based affirmative action. Not only will they fail to achieve the level of Black student enrollment that proponents promise; they also will exclude deserving middle-class Black students. And they won’t account for the historical harms that made affirmative action necessary in the first place. Regardless of the Court’s ruling, university administrators should not give up on race-based affirmative action; they should dare to keep employing it, in hopes of mounting future legal challenges and with a willingness to accept legal consequences for their civil disobedience.

Several of the justices on today’s Supreme Court take the fanciful position that inequality can be attacked only by ignoring the race of its victims. Advocates of wealth-based affirmative action embrace this hope. But my books, The Color of Law and Just Action (co-authored with Leah Rothstein), demonstrate that America needs race-specific remedies to redress race-specific crimes.

African Americans today still suffer from the effects of unlawful and unconstitutional public and private policies of the past that were explicitly designed to maintain them in a subordinate status. These policies were so powerful that they continue to keep Black college applicants at a disadvantage. Median Black household wealth is, at most, 13 percent of the white median. This gap is largely attributable to federal policies that, in the 20th century, denied subsidies for homeownership to African Americans. White families, meanwhile, received government support that allowed them to accumulate equity as their homes appreciated in value; much of this equity was then bequeathed to subsequent generations. Hispanic and Asian Americans, as well as members of other groups, were also sometimes disfavored, but public and private discrimination against them was less harsh, diminished much sooner, and was less consistent.

The argument in favor of wealth-based affirmative action was articulated earlier this year in a Slate article by three academics—Peter Dreier, Richard Kahlenberg, and Melvin Oliver. They wrote that by giving preference to students on the basis of their low household wealth rather than their race, colleges and universities can still “preserve important gains in racial diversity.” The authors focus on wealth instead of income, they note, because the racial wealth gap is larger than the racial income gap.

For one of these authors, Kahlenberg, class-based preferences are not a second-best alternative following a potential Court defeat of race-based preferences; he is part of the plaintiff team that challenged the admissions policies of Harvard and the University of North Carolina in the two affirmative-action cases before the Court this term.