Strengthening Constitutional Self-Government

No Left Turns

Third Way on Affirmative Action

Richard Kahlenberg offers what he calls a third way on the question of affirmative action this morning, in an article recommending affirmative action based not on race, but on income.

The article is interesting because it honestly addresses a major problem with Bush’s 10-percent plan--a plan in which the top ten percent of students from all public high schools are given admission to the state university of their choice. According to Kahlenberg, such a program is difficult to understand except as a proxy for race, and the program is therefore susceptible to legal challenge. There certainly is precedent for this: In the wake of discriminatory practices at schools in the south, the Supreme Court applied a rigid level of review to schools which had previously taken race into account, and subsequently used a proxy to reach the same or similar racial results. If the Supreme Court were to strike the more quota driven affirmative action systems in question, the Court could take a similar approach when confronted with admission systems predesigned to reach similar racial outcomes.

Kahlenberg’s approach is also interesting because it does not raise the serious constitutional questions that race-based systems do. Essentially, government may consider your income status for a number of purposes--taxation, welfare and other benefits, etc.--where it would be impermissible to look at race. To put it in legal jargon, income-level is not a suspect classification.

Under an income-based preference system, in addition to poor Black and Hispanic students, a number of poor white and Asian students would be admitted with a preference. Leaving aside the class-based public policy issues for the moment, such a system is fine, unless you believe that every group is entitled to just so many admission spots and no more. Enter Jesse Jackson, who infamously stated that ending racial preferences in California would just lead to admitting more Asians. Perish the thought.

Thus, Kahlenberg’s income-based preference proposal faces opposition from two groups. There are some on the right who think that it is imprudent to enter into the quagmire of class-based entitlements, and there are those on the left (such as Jackson), who realize that if you use an admissions system that is not really just a proxy for race, then you will not get the results you desire.

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