Class-Based Affirmative Action

Richard Kahlenberg

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.

Legacies and Class-Based Affirmative Action

Richard Kalhlenberg is probably the foremost advocate of class-based affirmative action  in the United States today, although he has written about a variety of other educational issues, such as vouchers, charter schools, and teachers’ unions. Most recently, he has concentrated his attention on legacy preferences in college admissions, which he sees as “affirmative action for the rich.” Kahlenberg argues that since private universities receive funds from the federal government they do not have complete freedom to admit whomever they choose, that legacies for the sake of donations violate IRS rules because these rules forbid deductions for gifts that enrich the givers, and that legacy preferences violate the 1866 Civil Rights Act

I appreciate Kahlenberg’s approach to issues. In his books and his articles, he writes clearly, employs logical arguments, and avoids heated rhetoric and ad hominem attacks. Appreciating the way he lays out his views is not the same as agreeing with them, though. On the legacy question, I believe that Kahlenberg’s strongest point is that by accepting federal funds private universities subject themselves to state control. Here, though, I think he has really put his finger on one of the biggest problems of modern higher education.  Government subsidies have placed private institutions on the track to becoming government subsidiaries.

Freedom of association, for organizations as well as individuals, is essential to an open, pluralistic society. In order to have freedom of association and the freedom to define their own goals, private educational institutions need to make their own choices about criteria for admission. This means they should be able to choose to give preferences to young black men, women, fundamentalist Christians, Mayflower descendents, top SAT scorers, or champion Elvis impersonators. By becoming dependent upon federal funds over the past half-century, private universities have imperiled their own autonomy, and become quasi-public entities, with the central government defining their goals and limiting their rights of association. This trend of dependence and control is part of a larger tendency of American society toward the absorption of all aspects of life by the national state. We have not yet reached the point of everything inside the state and nothing outside the state, but we are well on our way.

So, I think Kahlenberg is right that federal funding opens the door to federal intrusion in admissions policies, but I don’t see this as a good thing.  In addition, the argument against legacies here is part of a larger argument about how political programs should define the goals of all of our social institutions. Kahlenberg favors prohibiting preferences for people from some family backgrounds at the same time that he favors mandating preferences for people from others.  Class-based affirmative action is essentially a project of discrimination against people who come from the “wrong” class.  

Upward mobility has historically been an intergenerational process, in which parents improve the chances for their children. One of the ways in which they have improved their children’s chances in life has been giving children educational advantages. These do not consist only of supposedly “unfair” advantages such as securing legacies, but also of putting all their resources toward improving the abilities and competitive preparation of the children.  Under class-based affirmative action, the state and those public and quasi-public educational institutions would actively discriminate against the children of the relatively financially successful or the well-educated in an effort to redistribute opportunities.  Readers of Kurt Vonnegut may remember the story of Harrison Bergeron, who is fitted out with mental and physical handicaps to balance his unfair inherent advantages. What is class-based affirmative action but a system of handicaps for successful families?