The website Inside Higher Education discusses a new report issued by the Century Foundation. Part of the debate on affirmative action on the eve of the Supreme Court’s consideration of the Fisher case, the report, authored by Richard Kahlenberg, argues in favor of replacing race-based affirmative action with class-based affirmative action. The report is an updating of policies Kahlenberg has been advocating for years, most notably in his 1996 book The Remedy: Class, Race, and Affirmative Action. Kahlenberg maintains that public policy should pursue preferences in educational admissions and employment based on socioeconomic class, rather than race. In his view, this would be more acceptable than racial preferences to the American public and it would accomplish the same goals as racial preferences, since people in the racial and ethnic categories favored by race-based affirmative action are disproportionately at the lower end of the socioeconomic scale.
Essentially, the Century Foundation approach would place public institutions in the position of the old Queen for a Day show, rewarding those who could tell the sorriest stories about their misfortunes. Since every college admission or job that one person receives is an admission or job that someone else will not receive, by definition class-based affirmative action must mean that public institutions would discriminate in favor of those with less fortunate and less successful family backgrounds and against those with more fortunate and more successful family backgrounds. Whatever families accomplish through work, ability, or luck will be counterbalanced (in theory) by systematic governmental discrimination in favor of families that have accomplished less.
One difficulty that I see with the class-based preferences approach is that it is clearly unconstitutional. The Equal Protection clause of the Fourteenth Amendment forbids states from denying the equal protection of the laws to any person in their jurisdiction, and this clause is commonly regarded as applying also to the federal government under the Fifth Amendment requirement of due process. If states or the federal government adopt policies that give preferences to persons based on socioeconomic background, then the laws are clearly being applied unequally. I have no doubt that a sophisticated constitutional scholar could find an elaborate interpretation demonstrating that discrimination based on economic standing is not denial of equal protection. But any straightforward reading of the clause leads to the conclusion that the law, and public policy as an expression of the law, must treat every person in exactly the same way. It cannot, through policies at public institutions, treat the children of the rich one way, those of the middle class another, and those of the poor still another.