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64 UCLA L. Rev. Discourse 648 (2016-2017)
Fisher's Foibles: From Race and Class to Class Not Race

handle is hein.journals/ucladis64 and id is 649 raw text is: Fisher's Foibles: From Race and Class to Class not Race Cheryl I. Harris ABSTRACT The decision in Fisherlisustained the University ofTexas's use of race in its undergraduate admissions policy, in the face of nearly decade long attack, but on terms that reinscribed the onerous requirements of strict scrutiny on institutions utilizing any form of race- conscious policy. The debate before the Court and the rationales asserted reinforced a framework based on the notion that class considerations can be an effective substitute for race, and even that race conscious measures operated primarily for the benefit of the economically privileged Black students, at the expense of the poor of all races. While the Court reject the claim in Fisher II, the question of the race and class relationship is relevant because the Court's current equal protection jurisprudence tethers the issue of constitutionality to the viability of alternative, non-racial measures, most of which are based on class. The claims and discussion in Fisher II regarding the relationship between race and class are predicated on several fallacies and contradictions. In casting race-conscious affirmative action as a fight for access to privilege, the class over race discourse erases the history ofworking class struggle for such programs, the ameliorative effect of race conscious affirmative action in alleviating inequality, and racism's ongoing negative impact on middle class Blacks. The class not race position rests on a profound contradiction: On the one hand, advocates contend that remediation of class inequality eradicates racial disadvantage on the assumption that class converges with or subsumes race. At the same time, the substitution of class for race is justified on the grounds that attending to race does nothing to eliminate class inequality, assuming little or no relationship between race and class. Rather than conceiving of the relationship between race and class in zero-sum terms, the analysis needs to contend with the fact that race and class are interactive and mutually constitutive. AUTHOR Cheryl I. Harris is the Rosalinde and Arthur Gilbert Professor in Civil Rights and Civil Liberties, UCLA School of Law. This essay benefitted from conversations with my colleagues in the Critical Race Studies Program at UCLA Law School, and all the participants in a workshop on Fisher v. University of Texas at Austin: Study on Race and Ethnicity in Admission, Devon Carbado, Kimberl6 Crenshaw, Elise Boddie, Liliana Garces, Rachel Godsil,jerry Kang, William Kidder, Richard Lempert, Nancy Leong, and Kimberly West-Faulcon. Excellent research assistance was provided by Hanna Giuntini and Ashleigh Washington, and as always, the expert research staff of the UCLA Law Library. I also extend my thanks to the editors of the UCLA Law Review for their patience and support. 64 UCLA L. REV. Disc. 648 (2017)

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