Seminar on Judicial Power

Professor Clark D. Cunningham

October 24, 2002

AFFIRMATIVE ACTION:

SHIFTING THE FOCUS FROM RACE AND CASTE TO

SOCIO-ECONOMIC ISSUES

How do we help those who really need it?

  1. Introduction
  2. What is the “creamy layer” test?
  3. Does the United States have a “creamy layer” test?
  4. Would a “creamy layer” test work in the United States?

(a)What lessons can we learn from India?

  1. Conclusion

Sold me out, for chump change (yes you did!!)

Told me that they, they had it all arranged

You handed me down, and that’s a fact

Now you’re pumped, You gotta get ready, For the big payback

That’s where I am, the big payback (the big payback!!)

James Brown, 1971

Is affirmative action the “big payback” for African-Americans? Can African-Americans ever be “paid back” for the atrocities their ancestors suffered? Should present-day African-Americans be the recipients of “preferential treatment” because of the suffering of their ancestors? These questions are a few that immediately spring to mind when one thinks of affirmative action. They spring to the mind of this writer (an African-American), and probably spring to the minds of many white Americans as well. The history of race relations in America is a contentious, volatile and ever-evolving phenomenon. Since 1619, when the first African slave was brought to what is now America, the relationship between blacks and whites in this nation has always been a cause for discussion, debate, repartee and most often; vast disagreement. A large amount of the animosity surrounding race relations revolves around the issue of affirmative action. African-Americans adamantly pronounce that they need it, want it, and deserve it, while many White Anglo-Saxon Protestants declare that it’s not needed, not deserved and unnecessary. Black’s Law Dictionary defines affirmative action as[1]: “The positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination.” Even the most contentious person would agree that there appears to be nothing (or at least very little), in this definition that one would find noxious or reprehensible; however, at present, the very words can be enough to start a debate of epic proportions. How did this happen?

In 1954, Brown v. Board of Education of Topeka Kansas[2]held that the “separate but equal doctrine of Plessy v. Ferguson[3] was overruled and “has no place in the field of public education…and that black children consigned to inherently unequal segregated schools had been deprived of equal protection.[4]” The removal of the overt racial barriers under Brown gave limited benefits to blacks and other racial minorities. One reason may have been the continuing desire of the dominant class to retain monopolies over scarce resources and accumulated positions of advantage.[5] Twenty-four years later, in California Board of Regents v. Bakke,[6] a white plaintiff challenged an affirmative action admissions program in a state medical school. The Court rejected the plan’s design, which set aside sixteen of one hundred spaces strictly for minority applicants. The plurality conceded that the state had a substantial interest in eradicating past discrimination, and found that race could be used as a “plus factor” in determining admissions criteria. However, the plan’s failure to allow all candidates to compete equally for the one hundred slots caused it not to be “narrowly tailored” to achieving its goal. The Court suggested that the purpose of the compelling state interest/narrowly tailored test is to highlight illegitimate uses of race by assuring that the goal behind the regulation is sufficiently important to warrant using the “highly suspect tool” of a racial classification Bakke did not hold that affirmative action programs are per se violative of equal protection; rather, schools may use race as one of several factors in admissions policies, as long as it is not the single determinative factor.[7]City of Richmond v. J.A. Croson Co.[8]further refined the “narrowly tailored requirement,” holding that the classification must “fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”[9] In Croson, the Court, for the first time, subjected an affirmative action plan to the same stringent review applied to invidious forms of race discrimination, holding that the mere recitation of a “benign” or “remedial” purpose is entitled to little or nor weight. Finally, in Adarand Constructors, Inc. v. Pena[10]the Court held that “all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny. There are many more courts, district and circuit, that are presently coming down on conflicting sides of this issue (Johnson v. Board of Regents of the University of Georgia,[11]which held that student body diversity can be a compelling interest, but the University of Georgia’s policy wasn’t “narrowly tailored” to serve that interest, and Grutter v. Bollinger[12], which held that the law school of the University of Michigan’s policy of considering race during the admission process was not unconstitutional).Until the Supreme Court speaks again on this matter, different circuits will continue to rule as they see fit. This writer submits that America should look to other countries, like India, with functioning affirmative action programs to study the ways in which they implement affirmative action.

What is the creamy layer test?

The traditional caste system of India is usually described as a hierarchy of four groups. At the top were the Brahmins, who were the priests and scholars; next, was the warrior caste; third the merchant caste; and fourth (and much lower), the Shudras who provided menial labor for the first three castes. Below even the Shudras, often described as outside the caste system were the “untouchables,” so-called because they were considered ritually unclean and subject to drastic forms of segregation. The Shudras are the ethnic group referred to as “Other Backward Classes” (for the purposes of India’s affirmative action), and the term “Scheduled Castes” was created for descendants of the “untouchables.”[13]

India's policy of “reservation”, or compensatory discrimination, is a daring attempt to remedy the past injustices suffered by those who are at the lower levels of India's four-tier caste-hierarchy.[14] Before India declared independence in 1947, the British maintained separate electorates and reserved seats for these groups in Indian Parliament. Soon after Independence, by recommendation of the Kaka Kalelkar First Backward Classes Commission, the Indian government implemented the model of reservation schemes for the Scheduled Castes and Tribes in government employment, as one means of addressing the disadvantage suffered by these groups most subordinated in the traditional caste hierarchy. The government implemented no such policy for Other Backward Classes at that time. Over time, the Indian courts imposed various limitations on the reservation policy, attempting to refine its definition of a disadvantage sufficient to merit reservations.[15] In 1978, the government appointed another commission, the Mandal Commission, to reevaluate the reservation policy. Most notably, the Mandal Report of 1980 suggested reserving an additional 27% of government positions for Other Backward Classes. Amidst violent protest, the Supreme Court validated this plan a decade after its proposal. However, it added a family and/or individual means test for all individuals claiming backward status by their caste membership.[16]In Indira Sawhney v. Union of India[17], a majority of a nine-judge panel of the Indian Supreme Court, in a 300-page opinion, validated the Mandal Report, and the implementation of 27% reservations, but added one crucial dimension to the definition of disadvantage. First, the Court affirmed that caste can be a vital consideration in compiling a list of socially and educationally backward classes, as long as the caste is primarily socially and educationally backward, as determined by empirical evidence that surpasses caste. The Court continued to explore the value of economic criteria, determining that criteria need not be solely economical, to the exclusion of caste considerations, and noted that "social hierarchy and economic position exhibit an indisputable mutuality."[18] However, to assure that benefits would truly flow to the most disadvantaged, the Court issued a requirement of a means test, or the "creamy layer" test.[19] The test called for, among other things, an imposition of an income limit, for the purpose of excluding persons (from the backward classes), whose income is above the said limit.[20] The creamy layer test attempts to account for a variety of indicators to include social, educational, and economic disadvantage. For example, the test addresses intergenerational transmission of status by disallowing children whose parents have achieved high-ranking positions in the government or military from claiming reserved positions.[21] The test also prescribes income criteria for people engaged in professional employment, trade and commerce. They then developed various calculations of wealth derived from agricultural landholdings (which depended on whether and to what extent their land was irrigated), and set a general income/wealth test that was premised on the belief that “the rise in social status is presumption-based, and has flowed necessarily from the economic betterment.”[22]

India'sreservation policies have engendered intense controversy, including extreme concern that a policy that is driven by caste is inherently divisive, and will act to solidify the caste system.[23] Many critics contend that reservation “has its uses but only up to a point, and there is no way by which it can become an instrument for restructuring society.”[24] Moreover, several scholars believe that the reservation policy has “strengthened the anti-Scheduled Caste attitudes.”[25] Perhaps the most challenging critique of reservation policy entails an investigation of the relationship between caste and socioeconomic class. This criticism often calls for greater to complete reliance on economic determinants of backwardness in constructing the list of Other Backward Classes. This package of criticisms often suggests that purely economic determinants may still generate a rough approximation of caste, though that is not the intent of the determinants.[26] The larger cities in India have a small numbers of rich people who are educated and have a highly Westernized style of life. These may be described as living minimally in the universe of caste and maximally in that of class. The occupations practiced by them bear no relation to the traditional occupations of the castes into which they were born.[27] Other scholars note, however, that achieving economic mobility and advancement does not necessarily correlate to mobility in social status, which is an agglomerate of socio-economic position and caste status.[28] Studies further suggest that members of low castes who surpass the bounds of economic strata, still encounter significant difficulty in achieving full identification with a higher social status.[29] Specifically, many of these upper-mobile lower castes suffer “from status-anxiety resulting from an incongruity between their caste and class statuses.” Members of the new middle-class have not yet been fully accepted in the old middle-class which causes a sort of split middle-class dichotomy.[30]
India has made a good attempt at defining disadvantage in a multivariant, intersectional society.[31] The earliest policy modifiers included regional and religious qualifiers, which attempted to recognize the ever-shifting nature of disadvantage. As employment reservation policies continued, and various permutations developed in different states, the Indian legal system attempted to reckon with these multivariant changes in society.[32] Time and time again, the Supreme Court has confronted the purported nexus between caste and class, and has attempted to discern the relationship between the two.Thoughnot perfect, India’s attempt to rectify the gross disparity in employment and educational opportunities for all is citizens indicates that the country has knowledge that there is, has been, and may continue to be, inequality within its caste system.[33] A 1964 opinion of the Mysore High Court stated the case this way: “There can be neither stability nor real progress if pre dominant sections of an awakened Nation live in primitive conditions, confined to unremunerative occupations and having no share in the good things of life, while power and wealth are confined in the hands of only a few.... The Nation's interest will be best served, taking a long range view, if the backward classes are helped to march forward and take their place in a line with the advanced sections of the people.”[34]
Would the United States benefit from a “creamy layer” test?

It is, by now, quite apparent that the “reservations for backward classes” in India is akin to affirmative action here in the United States? The debate over the creamy layertheory is similar to the U.S. debate regarding affirmative action and it’s public policy; how those policies are used, and how those uses relate to African-Americans. India sought to relieve some of the tension, resentment, and hostility that the reservation process brought by adding the “creamy layer” exclusion to the reservation process. Would adding a “creamy layer” exclusion to our current affirmative action programs dispel some of the hostility that is generated by affirmative action?

In higher education, a sort of “creamy layer” test was instituted at UCLA in 2000.[35] Facing the end of affirmative action, UCLA Law School made a large-scale effort to factor socio-economic considerations formally into the admissions process, while eschewing consideration of race. It established a minimum score for admission, calculated from quantifiable academic indicators: LSAT score and GPA, the quality of the school from which the applicant graduated, the applicant's curriculum, grade inflation, and other indicia.[36] The melded number required to be eligible for admission, derived from these criteria, was 625.[37] For applicants with a low academic score who came from a disadvantaged background, the score would be increased according to a
formula that incorporates family economic status, parents' education, whether the applicant came from a single-parent household, quality of the neighborhood in which the applicant lived, and so forth.[38] The first year it was in effect at UCLA, this system produced an extraordinarily diverse class, but black enrollment subsequently dropped by 72%.[39] In 1999, the decrease was even more pronounced. Only three blacks enrolled in the law school.[40] In 2000, five enrolled. In 2001, ten enrolled. In the past, a large proportion of admitted black students had relatively high socio-economic status (SES), which includes parents’ income, education, quality of neighborhood, and other factors.[41] Although they had test scores below those of almost all admitted whites, affirmative action made possible their admission. Deborah Malamud points out that while high-SES blacks had been eligible for affirmative action consideration, they are not eligible under the new program because they do not receive credit for suffering from disadvantage.[42] As a result, a large majority of blacks from families with high SES (superior economic, educational, and other indicia of status) were deemed too well off to be eligible for affirmative action and were not admitted. At the same time, black students from disadvantaged families did not have scores high enough to be admitted and were too low in SES for the socio-economic supplement to put them over the top. The three blacks who enrolled were among nineteen who had been offered admission that year.[43] Sixteen declined the offer, suggesting that they did not want to attend school isolated from other black students. The likelihood is that at least some who declined went to other law schools. At least on the basis of the UCLA experience, non-racial, poverty-based affirmative action will not result in admission of a substantial number of blacks.

Rather than be too hasty in discounting the fact that affirmative action in its present state helps middle to upper class African-Americans (the “creamy layer” so to speak), more than African-Americans in lower socio-economic groups, there are examples of other programs that have tried to do the same. Recently, the Educational Testing Service considered a program that would add points to test scores of students, whom they called “strivers,” who have demonstrated outstanding character while growing up in adverse circumstances.[44] Presumably many of them would be black. But, the proposal was controversial and has not been implemented. In any event, formally and informally, many admissions regimes take into account character and life circumstances. How the data is utilized, is not required to be quantified or articulated. U.C. Berkeley considers some such factors, as does some University of California medical schools.[45] Texas requires their use by statute. But, among the disadvantaged, there are more ambitious, hard-working white students than black students, even though blacks may be proportionately more numerous. By the point at which admissions reach a level where blacks are clustered, it may be that enough whites have been admitted to fill the class. Nevertheless, to the extent that non-quantitative criteria are used, the exercise of discretion, consciously or unconsciously, may take race into account, although no school would admit to violating a prohibition of affirmative action in this manner.