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excerpt from:   Angela Onwuachi-Willig and Amber Fricke, Class, Classes, and Classic Race-baiting: What's in a Definition?, 88 Denver University Law Review 807 (2011) (169 Footnotes Omitted)

In his article Class in American Legal Education, Professor Richard Sander highlights the lack of class diversity within law schools in the United States, particularly within elite law schools. As Sander points out, law students tend to come from relatively elite class backgrounds, and Sander urges law schools to pursue class-based affirmative action, rather than race-based affirmative action, in their admissions processes.

As a general matter, we agree with Professor Sander that class diversity within a law school and within the legal community is a laudable goal. Class-based affirmative action is neither an unnecessary nor unwarranted proposal. A number of the arguments asserted in favor of racial diversity in Grutter v. Bollinger also may apply to class diversity. For example, just like racial diversity, class diversity among students can contribute to a robust exchange of ideas on legal issues. Additionally, to the extent that law schools represent the training ground for a large number of our Nation's leaders and to the extent that we want to cultivate a set of leaders with legitimacy in the eyes of the citizenry, class diversity, like race diversity, may signal to all citizens that the law school path to leadership is open to people from a broad range of class backgrounds. Indeed, Sander is not the first, nor will he be the last, law professor to address the importance of class diversity within higher education. For example, in their book The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy, Professors Lani Guinier and Gerald Torres examine the benefits of coalitions around political race that have enabled barriers to higher education at state universities to crumble for both disadvantaged white and minority students through the Texas Ten Percent Plan. Additionally, Guinier, in her article Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, analyzes how measures for merit in the admissions process correlate more with factors such as parents' education, grandparents' socioeconomic status, racial identity, and geographic location than they do with future academic performance. Similarly, in her article Assessing Class-Based Affirmative Action, Professor Deborah Malamud carefully analyzes the idea of class-based affirmative action and its potential effectiveness or ineffectiveness at addressing economic inequality. Finally, in the article The Admission of Legacy Blacks, one of us, Professor Angela Onwuachi-Willig, studies the complexities of class as related to race and national origin and ethnicity for Blacks in the admissions game, encouraging institutions to account for socioeconomic status, race, and national origin in their processes.

In this Article, we do not take issue with Sander's identification of class diversity as a necessary point for discussion and inclusion among law professors and deans. Rather, we take issue with the manner in which Sander sets up the discussion about law school affirmative action as an either-or proposition, with class on one end and race on the other, as though the two concerns are mutually exclusive of and incompatible with each other. More specifically, we contest Sander's definitions of the words class and socioeconomic status and, in many ways, his use of those words as interchangeable terms in Class in American Legal Education (although such interchangeable use is frequently employed in legal scholarship, even by theauthors). Merriam-Webster's Dictionary defines class as a group sharing the same economic or social status and defines socioeconomic as of, relating to, or involving a combination of social and economic factors. Based on these definitions, it is clear that while one's class may arguably (though not convincingly) be defined solely in economic terms, one's socioeconomic status (SES) necessarily includes social factors such as race. In fact, we find Malamud's definition of class and economic disadvantage in her article Assessing Class-Based Affirmative Action most convincing. Like Malamud, at least with respect to the category of class, we do not mean that [a person] falls below a predetermined absolute threshold of economic attainment when we say that that a person is economically disadvantaged; [i]nstead, [we mean that] one is economically disadvantaged in [our] sense of the term when one has fewer economic goods than do members of some relevant comparison group. In this vein, we question a number of Sander's comparisons and framings of class and socioeconomic status within his article. For instance, when Sander speaks of students of relatively elite backgrounds, he rarely notes to which groups these elite backgrounds are relative; he never compares, for example, the black law students from relatively elite backgrounds with their white, law school peers of relatively elite backgrounds. Along those same lines, Sander's groupings of law school students' parents by class often seems to be comparing apples to oranges, such as parents who are registered nurses to those who are doctors.

Finally, we reject what we view as Sander's misguided attempts to institute class-based affirmative action in lieu of race-based affirmative action. In so doing, we explain why many of Sander's arguments in favor of substituting race-based affirmative action with class-based affirmative action are flawed. We also note numerous substantive reasons why law schools must continue to pay attention to race. Contrary to what Sander's article suggests, race and racism still matter within our society, and in a way that supports the maintenance of race-based affirmative action within law schools. In the end, we reject Sander's contention that class-based affirmative action would produce similar racial diversity within law schools.

Overall, in this Article, we briefly lay out each of our challenges to Sander's arguments in Class in American Legal Education.In Part I, we first address the very problems that Sander's article highlights about the difficulties of defining class and SES, problems that may make class-based affirmative action programs less feasible and effective than Sander suggests. In so doing, we identify what we consider to be defects in Sander's class/SES groupings. We also highlight the complexities around class and race that already exist within law student populations, answering in part the important questions about to whom black law students are relatively advantaged or disadvantaged. In Part II, we focus on responding to Sander's substantive arguments against race-based affirmative action, demonstrating why class-based affirmative action is an inadequate substitute and why race-based affirmative action is still needed.