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excerpted from: Deirdre M. Bowen. Meeting Across the River: Why Affirmative Action Needs Race and Class Diversity . 88 Denver University Law Review 751 (2011)(223 Footnotes Omitted)


Richard Sander's goal in his latest article, Class in Legal Education, is to spur a serious and sustained discussion about how to address socioeconomic diversity in the legal academy. This goal would be an admirable one if it were not for its second unwritten goal of denigrating racial diversity while continuing to promote the author's prolifically challenged mismatch theory. Sander's article presents a compelling story about which populations have access to law school and which are actually deserving of preferences in order to attend. Sadly, the story he tells is wide of the mark, as the empirical evidence demonstrates.

Essentially, Sander asks the same question that Professor Charles Ogletree asks in his book The Presumption of Guilt: Does class trump race? Ogletree examines the dilemma that accomplished African American men in particular, but presumably all people of color, come to expect: with success comes privilege. Specifically, he asserts that license provides the advantage of being presumed innocent or left alone. Ogletree raises this benefit in the context of criminal suspicion and guilt that the large pool of African American men, who have enjoyed academic and economic success, confront so often. The dilemma that emerges is the issue of exceptionalism --what about the millions of other black males not in possession of an Ivy League degree or high profile position? Do we treat economically successful minorities differently than their less well-off peers when it comes to criminal surveillance? Ogletree answers this question emphatically:

The solution of treating prominent middle- and upper-class African Americans differently from poor African Americans may be too great a cost for our community to bear. Indeed, it may have just the opposite impact, leading us to ignore that injustice and inequality ... is pervasive and persists .... The class-race distinction may be with us forever ....

While Ogletree addressed this question in the most vexing arena that African Americans must endure, the criminal justice system, I argue that the answer to whether we should treat minority college applicants differently according to class is a resounding No. The presumption of guilt and racial profiling uniformly permeates the educational system from preschool to graduate school and virtually every social structure in which racial groups interact. As discussed below, the historical and contextual narrative of race is one of guilt and suspicion at every turn. At best, Sander naively ignores this central theme, and at worst, he chooses to promote the theme in order to reify the fiction of a post-race world in which enough, if not all, minorities have arrived. Central to Sander's argument and empirical narrative is that we live in a colorblind world in which race is no longer relevant.

In this paper, I take up Ian Haney Lpez's mantel when he writes:

[A] stratification analysis makes clear that no division between a universalistic focus on class versus a particularistic emphasis on race is tenable: race and class in the United States inextricably interdigitate such that neither can be engaged without sustained attention to the other. A focus on class as a complement to a close engagement with race would be quite helpful; but a focus on class as a substitute for race, as part of an evasion of race, will prove counterproductive. Class should not be used to obfuscate the interrelated yet distinct issues associated with race, nor vice versa. Whether one privileges class or race, focusing on their interconnection will advance justice, while stressing one to the exclusion of the other will lead to failure along both fronts.

Although Haney Lpez and Ogletree were writing in connection with criminal justice, I assert this same warning is in order with education and affirmative action. This Article is divided into three sections, each containing a critique of Sander's arguments and analysis.

First, I briefly reframe and reiterate the history of race and ethnicity in affirmative action's origins to directly confront the assumption that Sander makes about what affirmative action's original purpose entailed. The goal of Part I is to correct the erroneous epistemology from which Sander's study emerges: the entrenched de-contextualization of race and ethnicity as a means to supplant race with class in an effort to assert that high socioeconomic minorities are over-represented in law school admissions.

Part II critiques the way in which Sander presents the data to create a narrative that supports his post-race argument rather than presenting them in the most transparent manner--thus allowing the data in their fullest form to reveal their story. Specifically, Sander ignores wealth as a key measure of socioeconomic status (SES), ignores the increasing data on racial inequality, and ignores the data indicating that class and race are not interchangeable.

In Part III of this Article, I consider the arguments Sander continues to reify regarding the harms of affirmative action for students of color. Ultimately, I argue that while class and racial diversity should and do intersect, racial diversity should play a key role in higher education regardless of one's SES. In addition, I argue that a central component of Sander's goal is to perpetuate the myth of a colorblind society without confronting how best to use racial diversity within educational institutions. Finally, I address the role of wealth and its function in access to education.