Category Archives: Affirmative Action

New Article: Intersectional Barriers to Tenure

New Article: Meera E. Deo,  Intersectional Barriers to Tenure, Cal Davis Law Review, Vol. 51, 2018.

As the title suggests, this article dissects the problems rife within law schools which present barriers to a more diverse academic legal community.


New Article: Shifting the Scope: How Taking School Demographics Into Account in College Admissions Could Reduce K-12 Segregation Nationwide

New Article: Thomas Scott-Railton, Note, Shifting the Scope: How Taking School Demographics Into Account in College Admissions Could Reduce K-12 Segregation Nationwide, 36 Yale L. & Pol’y Rev. 219 (2017). Abstract below:

Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics. While existing affirmative action programs at colleges provide some counterweight to this dynamic, they are limited by institutional (and constitutional) constraints. Out of concern for revenue and rankings, many colleges are constrained in the number of students from low-income backgrounds they are willing to admit. Such a limited scope is not inevitable, however.

If colleges were to give a substantial admissions bonus to applicants who had attended K-12 schools with at least a certain percentage of low-income students, higher education could become a force for countering inequality at the K-12 level, instead of reproducing it. College admissions policies serve as a crucial reference point for parents, students, and educators on down through K-12. By rewarding applicants for attending socioeconomically integrated schools, colleges would mobilize the resources of private actors across the country towards integration. The benefits of this would be significant, especially for students from low-income families who would have an increased chance of attending integrated K-12 schools as a result. Such a policy would also help colleges better foster diversity on campuses, as more students would have had prior experience in integrated settings.

This Note explores the ongoing problem of K-12 re-segregation, argues that by adopting this policy colleges could work to promote integration, examines how such a policy could best be designed to do so, and addresses why such a policy would be constitutional. At a time when educational inequality is on the rise, there is an urgent need for new affirmative action proposals that can combat segregation and do so within colleges’ existing constitutional and institutional constraints. The policy proposal advocated in this Note would do both, interrupting key elements of the present vicious circle.

New Article: Now is the Time: Class-Based Affirmative Action in the 21st Century

New article: Evan F. Jaffe, Now is the Time: Class-Based Affirmative Action in the 21st CenturyJournal of Civil Rights and Economic Development: Vol. 30: Issue 2 , Article 5. Abstract unavailable. See link for PDF download.



New Book: “Poison in the Ivy: Race Relations and the Reproduction of Inequality on Elite College Campuses”

byrdComps.inddNew Book: W. Carson Byrd, Poison in the Ivy: Race Relations and the Reproduction of Inequality on Elite College Campuses (Nov. 2017). Overview below:

The world of elite campuses is one of rarified social circles, as well as prestigious educational opportunities. W. Carson Byrd studied twenty-eight of the most selective colleges and universities in the United States to see whether elite students’ social interactions with each other might influence their racial beliefs in a positive way, since many of these graduates will eventually hold leadership positions in society. He found that students at these universities believed in the success of the ‘best and the brightest,’ leading them to situate differences in race and status around issues of merit and individual effort.

Poison in the Ivy challenges popular beliefs about the importance of cross-racial interactions as an antidote to racism in the increasingly diverse United States. He shows that it is the context and framing of such interactions on college campuses that plays an important role in shaping students’ beliefs about race and inequality in everyday life for the future political and professional leaders of the nation. Poison in the Ivy is an eye-opening look at race on elite college campuses, and offers lessons for anyone involved in modern American higher education.

New Article: “Devolution’s Law: The Case of the TANF Block Grant”

New Article: Andrew Stephen Hammond, Devolution’s Law: The Case of the TANF Block Grant, forthcoming Washington L. Rev. 2017. Abstract below:

Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF) — the TANF block grant — guaranteed the program’s deterioration. The article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved program. The Article then explores two potential paths forward for TANF as either a devolutionary outlier in social policy or as a harbinger of what is to come from recent Congressional proposals to block grant Medicaid or SNAP (food stamps). Public interest lawyers rightly fear that TANF could be the cutting edge of a newly devolved American safety net. The Article concludes by considering what the cautionary tale of TANF means for scholars of federalism and anti-poverty advocates.

Op-Ed: “Black people aren’t keeping white Americans out of college. Rich people are.”

Op-Ed: Christine Emba, Black people aren’t keeping white Americans out of college. Rich people are, Wash. Post, Aug. 4, 2017.

News Article: Sonia Sotomayor: Not Everyone Can Just Pull Themselves ‘Up By The Bootstraps’

News Article: Carolina Moreno, Sonia Sotomayor: Not Everyone Can Just Pull Themselves ‘Up By The Bootstraps’, Huffington Post (Apr. 4, 2017).

Article: What Diversity Contributes to Equal Opportunity

Article: Stephen M. Rich, What Diversity Contributes to Equal Opportunity, 89 S. Cal. L. Rev. 1111 (2016).

The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. Yet we seldom pause to consider the costs that have accompanied this shift. In Grutter v. Bollinger, the Supreme Court held that a public university’s use of racial preferences in student admissions will not violate equal protection if the challenged admissions policy is narrowly tailored to achieve the university’s compelling interest in student body diversity. Rather, however, than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack. Grutter and the Court’s subsequent decisions in Fisher v. University of Texas at Austin have established the dominant legal conception of diversity, but they have also left many questions unanswered concerning the applicability of Grutter’s diversity rationale outside of the educational context. This Article rejects Grutter’s rationale, but not the relevance of diversity to the goal of equal opportunity. It demonstrates that Grutter’s rationale underserves equal opportunity by deferring to institutional constructions of diversity’s benefits, naively equating the achievement of numerical diversity with the accomplishment of those benefits, and failing to distinguish between exploitative and egalitarian uses of diversity. This Article uses the popular conception of diversity found in business settings and managerial literature as a foil for the legal conception. On the one hand, by conceiving of diversity as a business resource, managerial discourse advocates for exploitative uses of diversity, thereby widening the gap between diversity and equal opportunity. On the other hand, because the value of diversity as a business resource turns in part on the professional growth and achievement of individual workers, managerial discourse sometimes invokes the concept of diversity in order to promote new institutional practices that extend professional opportunities to all persons, regardless of social status. Managerial discourse thus reveals important dangers and possibilities inherent within the concept of diversity that have yet to be explored in legal discourse. This Article marshals those lessons to propose a reconstruction of Grutter’s diversity rationale to fulfill its potential as an instrument of equal opportunity, even outside of the educational context and even when an institution does not rely on affirmative action.

Article: Class-Based Affirmative Action, or the Lies That We Tell About the Insignificance of Race

Article: Khiara M. Bridges, Class-Based Affirmative Action, or the Lies That We Tell About the Insignificance of Race, 96 Boston L. Rev. 55 (2016).

This Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals—and groups—continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people’s worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it denies that race matters, has mattered, and probably will continue to matter unless we make conscious efforts to make race matter less.

The Article proceeds in two Parts. Part I locates class-based affirmative action doctrinally. Specifically, this Part identifies class-based affirmative action as the heir of the “suspect class” to “suspect classification” shift—a shift that tells its own lie about race. The substance of this lie is that those who exist at the top of racial hierarchies are as vulnerable to denigration, stigmatization, and subordination on account of race as are those who exist at the bottom of racial hierarchies. Part II goes on to demonstrate that class-based affirmative action suffers from the same infirmities from which race-based affirmative action is charged to suffer. It argues that the reason why proponents of class-based affirmative action are sanguine about these infirmities when they are present in class-based programs, but loathe them when they are present in race-based programs, is because their opposition to race-based affirmative action is not due to these infirmities. Rather, it is due to their disdain of the work that race-based affirmative action performs. That is, race-based programs function to assert, loudly, that race still matters and does so in powerful ways. Many proponents of class-based affirmative action resist this function.

Moreover, class-based affirmative action functions to assert that we, as a society, have entered a post-racial future. That is, class-based affirmative action tells a lie about the insignificance of race. Many proponents of class-based programs likely find these programs attractive and comforting for that very reason. The importance of this Article is that it uncovers the narrative work that class-based affirmative action performs, and it argues that those who are interested in racial justice ought to resist these programs because of their dangerous discursive effects.

New Article: “The False Choice between Race and Class and Other Affirmative Action Myths”

New Article: Lisa Pruitt, The False Choice between Race and Class and Other Affirmative Action Myths, 63 Buffalo L. Rev. __ (forthcoming).  Abstract below:

This article refutes the widely held assumption that affirmative action is appropriate either to support only racial and ethnic minorities or to support only low-income students, but that it cannot or should not support both. Pruitt argues that we need not make such a choice and that we should aspire to socioeconomically diversify higher education institutions — including the most elite sector — with low-income students of all colors. Pruitt thus disputes the framing of Richard Kahlenberg and Richard Sander who have long argued that we should seek socioeconomic diversity in lieu of racial/ethnic diversity, a stance that has needlessly pitted underrepresented minorities against whites of low socioeconomic status (SES), thus fueling the race-vs.-class debate in the prestigious admissions context. The article also takes on other common myths about affirmative action, including the notion that low-income whites add no value because they are essentially redundant of the upper-income whites who are abundant in elite higher education, and the proposition that such educational opportunity is strictly aimed at racial integration of the middle classes, leaving no place or need for the poor and socioeconomically disadvantaged.

This article analyzes socioeconomic disadvantage as diversity from three vantage points: case law, rhetoric, and the practice of elite higher education admissions. The high-water mark for socioeconomic disadvantage as an aspect of “diversity” in case law came in Bakke v. University of California (1978). Justice Powell’s opinion in that case famously held that racial and ethnic disadvantage could be considered in the holistic review of applicants. Virtually unnoticed and uncommented upon by judges and scholars since Bakke, however, is the fact that Powell also listed socioeconomic disadvantage as an aspect of diversity, treating it as on par with racial and ethnic disadvantage in that holistic review. The U.S. Supreme Court and other federal courts since Bakke have largely ignored that stance, implicitly or explicitly re-defining diversity strictly in relation to underrepresented racial and ethnic groups. Meanwhile, the plaintiffs in affirmative action cases like Grutter, Gratz, Hopwood and Fisher are often popularly perceived as socioeconomically disadvantaged whites who pitted the interests of that group against racial and ethnic minorities. In fact, neither Alan Bakke nor any of the plaintiffs in more recent affirmative action cases self-identified as socioeconomically disadvantaged. Indeed, Abigail Fisher in particular admits that she is relatively socioeconomically advantaged.

In the other two contexts — diversity rhetoric and diversity “in action,” as reflected in who gets admitted to prestigious higher education institutions — Pruitt documents a widespread erasure or denial of class, of poor and working-class whites in particular. For better or worse, diversity has become a buzzword for a key value and aspiration of the academy, but diversity generally is not defined to include socioeconomic diversity except to the extent that underrepresented minorities happen also to be socioeconomically disadvantaged.

In this first of a series of articles that explicitly takes up the white working class and poor whites as critical race projects, Pruitt begins to theorize why low-SES whites are so little valued in the elite college admissions race. In addition to the race-vs.-class framing that has distracted us from the possibility — indeed, the imperative — of supporting both groups of underrepresented students, Pruitt concludes that stereotypes of low-SES whites as conservative and racist are also powerful deterrents to their inclusion in the prestigious higher education sector. Long-standing elite disdain for poor and working-class whites, as well as distance from and ignorance of their milieu, further skews how institutions of higher education assess disadvantaged white strivers.

In this age of escalating wealth and income inequality, we need socioeconomic diversity in higher education — including in the most elite sectors — more than ever before. Yet evidence shows that wealthier but less able students often get the coveted spots in that prestigious and narrowing pipeline to our nation’s leadership, a phenomenon with significant implications for our nation’s democratic ideals and economic flourishing. The current system effectively silences many perspectives and undermines our egalitarian principles, short-circuiting the prospects of strivers by failing to get them into elite higher education or to support adequately the few there. That failure also has economic implications for our nation, as we fail to optimize development of our raw human capital.

While Pruitt acknowledges the shortcomings of the diversity analysis in the higher education context, she ultimately calls for a return to Justice Powell’s position in Bakke, which endorsed a broader conception of diversity, specifically including low-income students. The practical reality is that race-based affirmative action does not enjoy broad popular support and is widely believed to be doomed given the current composition of the U.S. Supreme Court. But a broader definition of diversity — an explicit valuing of low-income students in rhetoric and in practice — could be the political quid pro quo that helps save affirmative action for racial and ethnic minorities.