Affirmative Action: Racial Equity vs. Economic Equity

5/1/23

As most appreciate, the Supreme Court serves as the ultimate court of appeals — i.e., the final authority for settling disputes within our judicial system. Usually, a case gets to the Supreme Court following an earlier circuit court decision, but almost universally, the decision to hear the case or not is subject to the discretion of the Justices. During the “oral argument,” the petitioner (i.e., the party seeking to overturn a decision made by a lower court) and the respondent (i.e., the party seeking to maintain the prior decision) briefly summarize their respective positions, but the bulk of the time is reserved for questioning by the Justices.

In oral arguments involving affirmative action this year, it seems that Justice Kavanaugh raised some eyebrows by introducing an unexpected line of inquiry. Kavanaugh asked whether the circumstances of being the progeny of an enslaved person could legitimize differential consideration, independent of a race-based qualification. That’s a brilliant question. It’s particularly noteworthy coming from Kavanaugh, as irrespective of his feelings about race-based preference, per se, he has some awareness as to the perniciousness of the legacy of deprivation. Thank goodness. We may be strange bedfellows, but in this instance, I find myself sympathetic to the orientation that Kavanaugh appears to be suggesting.

At the core, I think Kavanaugh is revealing some concern about poverty; and my sense is that affirmative action programs use (or should use) race as a proxy for poverty. If I were king (or a Supreme Court Justice), I’d want to protect affirmative action processes where economic status is the primary determining factor predicating differential consideration. I don’t intend for this posture to trivialize the destructive force that racism has had over the years in our country. Racism is real and horribly pernicious, but to my mind, poverty is the more debilitating affliction facing our nation.

Poverty broadly condemns people to neighborhoods with inferior infrastructure and substandard education that systemically constrains opportunities for social mobility. Rich people — Black, White, or Chartreuse — don’t suffer from the same deprivations. They’re doing just fine and don’t need any special help. Affirmative action should be reserved for those who don’t enjoy that higher economic status; and it should be protected so it can do exactly that. Meanwhile, race-based affirmative action may have actually exacerbated racism by fueling a reaction of resentment, whether deservedly or not, even as it benefits the individuals who are directly affected.

Would the needle of public sensibilities change markedly if the stated objective of affirmative action programs explicitly gave priority to economic circumstances rather than race? The jury is out (so to speak), but it seems like a sensible bet to me. I’d expect a shift in emphasis from “racial equity” to “economic equity” to foster a greater social impact, still leaving the beneficiaries of affirmative action disproportionately people of color.

This discussion opens the door to a broader consideration of the problem of poverty, more generally. Poverty is a problem that can be mitigated, but it takes money and political will. Money could directly and immediately reduce poverty roles and, in the longer run, loosen the systemic factors that restrict future economic mobility. We saw evidence of these short-term effects with the distribution of funds for the Child Tax Credit, authorized under the American Rescue Plan in 2021. Those payments have been credited with reducing child poverty by 30 percent, albeit temporarily, since the distributions have ceased. For a time, we spent the money, but the political will proved to be ephemeral.

The fact that the Child Tax Credit provision was allowed to lapse with little public outcry reflects a level of indifference to poverty that surprised many of the supporters of this program, but that’s where we are; and Congress appears to be at a stalemate. Democrats want to “finish the job” raising the living standards for many, arguably having the most consequence for the poor. Their wish list includes new spending proposals to lower health care costs, provide federally funded childcare, debt relief, and more. Republicans, on the other hand, admit to wanting spending reductions across the board on virtually all discretionary spending save social security and Medicare. It’s hard to imagine either side walking away claiming victory given the current political climate.

I don’t expect affirmative action to have nearly the reach of the Child Tax Credit in terms of reducing poverty, but it’s something; and as a means for addressing poverty, it differs from many alternative anti-poverty initiatives on the basis of the target audience. Those having the most parsimonious attitude toward fighting poverty often use as their justification the belief that many who live in poverty, if not most, are doing so due to their own volition. They’re different from you and me: They’re lazy; they don’t work hard; they haven’t been appropriately responsible for themselves; and they’re not to be trusted — all canards but still widely embraced by many voters and their representatives. In any case, those qualifying for affirmative action represent the antithesis of these characterizations. They are strivers who are seeking to enhance their skills and contribute productively to society.

Whether we’ll be able to continue to rely on affirmative action to help alleviate poverty in the future is in the hands of the Supreme Court. We’ll have to wait to see what the Court decides.

Have feedback? Send me an email at igkawaller@gmail.com.