This paper is a response to Richard Sander’s latest work challenging the notion that race based affirmative action is still relevant and demanding that institutions of higher education consider class based affirmative action. To support his thesis, Sander conducts an empirical study on who benefits from 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.
Deirdre M. Bowen, Meeting Across the River: Why Affirmative Action Needs Race and Class Diversity, 88 DENV. U. L. REV. 751 (2011).