High-poverty schools are defined here as those with more than 50% of students eligible for free and reduced-price lunch. See RICHARD D. KAHLENBERG, ALL TOGETHER Now: CREATING MIDDLE-CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 106-12 (2001). Students are eligible for subsidized lunches if their families make less than 185% of the poverty line.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.. California Law Review, Inc. is collaborating with JSTOR to digitize, preserve and extend access to California Law Review. INTRODUCTIONIn recent years, the case law governing affirmative action programs has shifted significantly, making race and ethnic preferences much more difficult to sustain. Further judicial curtailment of race-conscious programs may be in the offing.Partly in response to this judicial trend, and as a prelude to the 1996 presidential election, the top officials of the two major political parties have taken strikingly different postures on the future of racebased affirmative action. President Bill Clinton argues that we should "mend" rather than "end" affirmative action, though a close analysis of his reasoning suggests that his administration will aggressively defend virtually all affirmative action programs. Republican presidential candidate Robert Dole, by contrast, has backed legislation and an initiative to end publicly sponsored racial preferences.These stark alternatives--ending public affirmative action, or defending it to the fullest--fail to address the strong moral, legal, and political dilemmas posed in the affirmative action debate. There are, and always have been, valid, principled arguments both for and against affirmative action programs. As John Hart Ely noted more than twenty years ago, "I have trouble understanding the place of righteous indignation on either side of this wrenching moral issue."' But there is a way to reconcile the best arguments for and against raceand gender-based remedies. This alternative approach recognizes the very real legacy of discrimination, but also acknowledges that there are better, more productive ways of addressing that legacy than through the use of racial preferences. This approach would provide preferences in education, employment, and government contracting based on class t From the book THE REMEDY by Richard D. Kahlenberg. All use subject to JSTOR Terms and Conditions CALIFORNIA LAW REVIEW [Vol. 84:1037or socio-economic status, rather than race or gender-implicitly addressing the current-day legacy of past discrimination without resorting to the toxic remedy of biological preference. Part I of this Article reviews the shift in the legal landscape surrounding race-based affirmative action, with a particular focus on the broad significance of the U.S. Opportunity Act of 1995,"'5 which would repeal federal racial preferences. Finally, Part III proposes a class-based alternative to these two flawed approaches, building the moral, political, and legal case for a system of class-based affirmative action, and explaining how such a system might work in practice.

High-poverty schools are defined here as those with more than 50% of students eligible for free and reduced-price lunch. See RICHARD D. KAHLENBERG, ALL TOGETHER Now: CREATING MIDDLE-CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 106-12 (2001). Students are eligible for subsidized lunches if their families make less than 185% of the poverty line.

Tenure is under fire. Conservatives have long attacked such policies as tenure that constrain the ability of managers to fire whomever they want, but the latest assaults on tenure have invoked liberal egalitarian ideals. With all the problems in education, why are we so fixated on teacher tenure? What is really going on? How did tenure get its start, and why is it still necessary? The author ventures to answer all these questions, positing that tenure is necessary because it significantly strengthens legal protections by shifting to the employer the burden to prove the termination is justified. Tenure protects a range of discriminatory firings not covered under race and gender antidiscrimination laws. The author also points out that there are better ways to running the tenure system than what is happening currently. Places that have used master teachers to contribute to a peer assessment system have had good results.

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