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Richard H. Fallon, Jr.,

Affirmative Action Based On Economic Disadvantage, 43 UCLA L. Rev. 1913- 1951, 1913-1916 (August 1996). Copyright (C) 1996 Regents of the University of California; Richard H. Fallon, Jr.

In the ongoing debate about affirmative action, there appears to be mounting interest in whether it would be desirable to develop programs affording preferences based not on race or other "suspect" or "semi-suspect" criteria, but on economic disadvantage. Articles touting economically based affirmative action have appeared in the popular press. . .

To generalize somewhat extravagantly, proponents of economically based affirmative action divide into two main categories. One views economically based affirmative action as a partial, second-best surrogate for race-based affirmative action in a legal and political climate in which race-based affirmative action may no longer be feasible, at least in some instances. The Supreme Court has established that all forms of race-based affirmative action will be subject to searching judicial scrutiny. . . Because racial minorities, especially blacks and Hispanics, tend to be disproportionately poor, economically based affirmative action becomes attractive to some on the ground that it would likely confer disproportionate benefits on minority groups.

The other category of supporters. . .regards economically based affirmative action as attractive for reasons independent of the arguments supporting race- based affirmative action. According to this view, economically based affirmative action--in contrast, some believe, with race-based affirmative action--responds directly to "burdens that have been unfairly placed in . . . individual's paths." Justice, it is held, calls for benefits and opportunities to be distributed to those who perform best in fair competition, and it enhances fairness to compensate for handicaps associated with poverty. Despite growing signs of support for economically based affirmative action, some of the most basic issues--especially those surrounding proposals that attempt to justify economically based affirmative action on grounds independent of race-based considerations--have so far received surprisingly scant attention.

These issues include: (i) the nature of the disadvantages that poverty creates and that affirmative action is intended to offset; (ii) the precise justification, if any, for viewing particular affirmative action preferences as appropriate remedies for poverty-based disadvantages; and (iii) the relationship between affirmative action preferences for the poor and the "merit" principles that normal schemes for distributing benefits and opportunities are usually thought to embody. . . . My most general conclusion is that arguments of both justice and utility support quite narrow programs of affirmative action for the economically disadvantaged. Broader programs of poverty-based affirmative action would not be unjust, but are not well supported on policy grounds either. Finally, the kinds of economically based affirmative action that can be justified independently from race-based affirmative action would be a poor surrogate for race-conscious programs, if indeed they are, or ought to be, a surrogate at all.