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Why the “Creamy Layer” Should Not Be Excluded from Affirmative Action Programs:
An Essay on Leadership and Responsibility in Social and Political Context
Aaron Porter
Assistant Professor
Department of Sociology
University of Illinois
What can India learn from the U.S.’s affirmative action dilemma -- in particular the
concern over whether middle class people should receive affirmative-action opportunities? This
concern deals with what Indian courts have described as the “creamy-layer” issue, that is,
whether or not unfair opportunities are operating in favor of members of oppressed groups who
have improved their socio-economic status positions as a consequence of affirmative action
initiatives. This essay critically assesses the Indian concerns over the creamy-layer group in light
of the American experience, drawing in particular on the life and work of W.E.B. DuBois.1
India’s historical system of social stratification has been of intense interest to sociologists
from the very beginning of the discipline. Max Weber wrote at length about how caste groups
were organized and separated based on hierarchical rules of ritual purity.2 Weber noted that the
system was an example of how social rankings are based on prestige and ethnic group
orientations. Weber contended that India’s rigid stratification system operated with closure-like
manifestations in the way upper tier caste groups maintained their social positions and power in
1
This essay is prompted by my participation in the 1997 conference, Rethinking Equality in the
Global Society, which was hosted by Washington University and brought together legal scholars
and social scientists from India, South African and the U.S., and by a subsequent course I taught,
Global Equality in Affirmative Action Context. The graduate-level seminar based course is a
systematic study of the evolution and socio-political consequences of affirmative action policy
on the social fabric in the United States, India, and South Africa. The legal, historical, and
cultural roots of affirmative action policy through a cross national and cross cultural approach
serves as a comparative basis for understanding the real from the obtuse issues that surround
such polices with an eye toward improving by broadening the debate and public policies on
affirmative action. The course is the first of its kind at the University of Illinois, and perhaps the
first course of its kind in the U.S. Although the focus of this essay is on possible lessons India
might learn from the American experience, I also believe there is much the U.S. can learn from
India and South Africa. For example, since conversations about race and affirmative action in
the U.S. create social tensions, looking at India broadens the current debate because race is not
the key factor there. India’s Mandal Commission used non-threatening variables — including
historical oppression and other social phenomena that impeded or limited the opportunities for
particular groups — as ways to categorize the groups receiving affirmative action benefits. (See
____ for further discussion of the Mandal Commission.) This neutral approach is particularly
useful to the U.S. given the tension around race related issues, and especially the question about
who should receive affirmative action.
For an overview of India’s social stratification and religious system, see Max Weber, The
Religion of India. Glencoe: The Free Press, 1958.
2
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the political economy of the country by maximizing their own advantage. For example, limiting
the market place and positions of social prestige from lower caste groups was accomplished by
restricting their access. These structures of oppression also reflect, as Marx would contend,
ideological beliefs regarding the social position of individuals in that society. For example, Marx
and Engels’s view of ideology is reflected in what they call the superstructure of society which is
determined by the economic material base. Since lower caste groups do not control the means of
production, the relations of production are determined through the social relations or social order
of that society, and the legal, political, and social consciousness of the society is given context as
material life shapes “ideological forms in which men become conscious.”3 Ideological beliefs
gives character to the social and political processes of life, maintaining a social system through
social stigmas that reflect the perceived social place or class position of particular groups. The
maintenance of this system of closure was through the segregation of ethnic groups, in addition
to laws, customs, and a social fabric which discriminated against lower caste groups in areas of
occupational specialization and economic opportunities.
In the 20th century a number of strategies have been employed to alter this system.
Upon achieving independence in 1950, the central government led by Nehru began to expand the
economy by building large factories for the production of iron, steel, and other products. These
kinds of improvements in the economy and the country’s infrastructure in particular especially
in the area of science and technology strengthened the job base, improved mass areas of poverty,
illiteracy, and ignorance, so that members of lower caste groups could participate not only in
employment, but also the political economy of the country.4 This expanded role of government
as employer related directly to a second strategy, reservation of jobs for “backward classes.
In 1870, South India introduced reservations for backward classes or castes. By 1920,
however, reservations had became a feature of public life in South India, but not throughout the
entire country. Extensive debates in the Constituent Assembly that drafted the constitution for
independent India led to constitutional language authorizing the use of quotas to advance
opportunities for members of scheduled castes (the former “untouchables”) and other “backward
classes.” Since the government was the major employer in the first decades of independence, the
life chances for these groups have increased through opportunities in government, the judiciary,
and public corporations controlled by the government.5 This progress does not necessarily mean
that similar progress has been made in private industry. Nonetheless, India’s affirmative action
advancements may seem bold to some. In fact, such practices in the U.S. would be viewed as
radical, especially the explicit use of quotas across a broad range of employment.
One of the major concerns, however, in the use of affirmative action or reservations was
the creamy layer group in India. In November of 1992, in what is known as the Mandal
Judgment, the Supreme Court of India affirmed the use of caste as a factor in determining
3
See preface, by C. Wright Mills, The Marxists (New York: Dell press, 1966), p. 43.
4
M.N. Srinivas, “Caste: A Systematic Change.” unpublished manuscript, p. 1-3.
5
Ibid.
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eligibility for affirmative action, but excluded the creamy layer among the backward classes
from eligibility for reservations.
[The proposal of ] of an income limit, for the purpose of excluding persons (from
the backward classes) whose income is above the said limit ... is very often
referred to as “the creamy layer” argument. Petitioners submit that some
members of the designated backward classes are highly advanced socially as well
as economically and educationally. It is submitted that they ...[are] as forward as
any other forward class member -- and that they are lapping up all the benefits of
reservations meant for that class, without allowing the benefits to reach the truly
backward members of that class. ...[W]e feel that exclusion of such socially
advanced members will make the ‘class’ a truly backward class and would more
appropriately serve the purpose and object [of the constitution]. ...[W]e direct
the Government of India to specify the basis of exclusion -- whether on the basis
of income, extent of holding [property] or otherwise -- of [the] ‘creamy layer’. ...
On such specification persons falling within the net of [this] exclusionary rule
shall cease to be members of the Other Backward Classes.6
The aspect of the Mandal decision has evoked strong opposition from leaders of
the backward class groups. In fact, one state legislature, in Kerala, passed a
resolution denying the existence of creamy-layers among the OBC’s in that state.7
The “creamy layer” debate in India resembles the argument now frequently made in the
U.S. that since America has radically increased opportunities for people of color and women in
political, economic, and educational institutions over the past three decades, affirmative action
programs are no longer necessary. The logic is that since affirmative action programs have
improved the life chances for minority groups and women, especially those who are now in
middle to upper classes, such programs should not favor them.8 It is thought that such programs
should be geared toward the less fortunate, poor individuals, or in essence the “more deserving.”
Its central claim is that socio-economic factors ought to be the measuring stick for who should
have access to affirmative action.9
6
Opinion of Justice Reddy, paragraph 86, pp. 294, 396.
Srinivas, “The Pangs of Change: India democracy is a secular miracle of the modern world, but
the quality of our democracy is poor.” Frontline, 22 August 1997, p. 68
7
8
The advancements of minorities in terms of increased opportunities in the wider society are
based on a number of reports. See for example: J.P. Smith and F.R, Welch. Closing the Gap:
Forty Years of Economic Progress for Blacks. (Rand Corporation, 1986), and Gerald D. Jaynes
and Robin Williams, Jr., eds. A Common Destiny: Blacks and American Society. (National
Academy Press, 1989).
9
In regards to South Africa, publications such as the Economist and various articles have
claimed there is a growing polarization between the small, new black bourgeoisie class and the
poor. {Citations needed.} However, there is no data or research on South Africa with a scholarly
discussion of the impact of affirmative action policy in expanding and creating a creamy layer
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The argument that affirmative action benefits for creamy-layer groups are no longer
needed is problematic on at least three counts. First, like affirmative action in the U.S.,
reservation policy in India creates opportunities for talented individuals by drawing them from
lower caste groups. They become participants in the local and federal government, judiciary, and
businesses controlled by the government in a way that meets the goals set forth in India’s
constitution. The experience in the U.S. shows the critical role to be played by a leadership
class drawn from an oppressed community. The civil rights movement reflects the very best
that the U.S. had to offer in terms of blacks fighting for access to opportunity. Martin Luther
King, Jr. and Charles Hamilton Houston came from privileged backgrounds, and black college
students from across the country who fought for poor blacks in the South regarding their civil
right to vote are critical examples of how blacks have given back to their indigenous
communities in terms of access issues.10 It was such members of the “creamy-layer” who fought
for access even though they also benefitted from such gains. One should not take for granted
the continued supply of such leaders. If India has glass ceilings for talented women and
minorities like that in the U.S., then one must consider whether or not there are sufficient
numbers even from the creamy-layer group in positions of power to help or to secure
institutional access for others by creating or maintaining equality of opportunity.11 This is one
effect in terms of black participation in the business economy of the country. There is some
discussion and a short chapter on affirmative action regarding the coloured community in
Wilmot James, Daira Caliguire and Kerry Cullinan's book, Now That We are Free (1996). This
work is not quite accurate regarding black South Africa’s position today regarding this group
having significant positions that affect opportunities in the economy and social structure
particularly at the lower community level. In terms of this issue surrounding the creamy-layer,
Anthony Marx's new 1998 book, Making Race and Nation, compares the US, South Africa, and
Brazil, but only barely gets up to 1990, but offers no real substance regarding black advancement
through affirmative action policies. And there isn't any real data for the Mandela era except for
some journalistic articles.
10
For a detailed account of how Charles Hamilton Houston contributed to black access to the
wider society, see the essay by Robert Carter, “In Tribute: Charles Hamilton Houston.” Harvard
Law Review, vol. 111, no. 8, June, 1998.
11
For an account of the importance of black professionals being in a position to make a
professional community pluralistic, see Aaron Porter, “Norris, Schmidt, Green, Harris, and
Higginbotham and Associates: The Sociolegal Import of Philadelphia Cause Lawyers” in Austin
Sarat and Stuart Scheingold, (eds), Cause Lawyering: Political Commitments and Professional
Responsibilities (New York: Oxford University Press, 1998), pp151-180. As minority,
“creamy-layer” senior people retire from their positions, institutional access for others from
oppressed groups start to decrease. This is the primary concern in the U.S. as noted with recent
American Bar Association and the National Bar Association reports, and speaks to the import of
affirmative action as a way to stabilize people of color in professional positions. The question is
not one of talent or skills, but of access. See Miles to Go: Progress of Minorities in the Legal
Profession (Chicago: Report of the American Bar Association, 1998).
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reason why the stabilization of middle and upper-classes are important in terms of affirmative
action. Continuing to help disadvantaged groups increase their opportunities in the larger social,
political, and economic system can also serve as a way to keep the system honest. In other
words, being a watch dog is a great public service, rooted in a rich democratic tradition. That is,
when the majority party is in positions of power, in a democratic society, the minority party is
allowed representatives in the system to maintain a level of fairness by being a watchdog, even if
that means fighting for their interest.
Second, entry into the political, educational, and social systems must be maintained and
stabilized in order to insure that traditionally under represented groups become a significant part
of the larger economic and political fabric. Just because adults in creamy-layer groups might
advance their status positions does not mean that their children will not experience patterns of
discrimination. A few decades of affirmative action do not negate centuries of discrimination
nor make a serious dent in the means of production or political economy. Reservation or
affirmative action programs do not quickly destabilize the power of members in dominant
groups, alter the balance of power in organizations or institutions, or resolve larger patterns or
structural forms of social and economic inequality especially regarding the means of production.
Historical data reveals how white groups in the U.S. were able to stabilize and maintain
their advantageous middle class status through decades of discriminatory practices that worked
in their favor. Some whites even argue that their positions today are based entirely on “merit”
which they claim is the key component for individual and familial success. However, most
whites do not realize how the extraordinary oppression of African Americans in the past and the
privileges of the ancestors of today's white families are interconnected. They also do not realize
nor see how these earlier privileges have been inherited and translated into indicators of "merit."
Kenneth Smallwood has noted that white America benefitted from huge federal
"affirmative action" plans for whites only. Such programs laid the foundation for much white
prosperity and African American inferiority in resources and opportunities in the modern U.S.12
One important example illustrates this point. Because of racial caste relations in the U.S.
especially from the 1860s to the early 1900s, the Homestead Act provided free land in western
areas for white families; but, because most African Americans were still in the semi-slavery
peonage of southern agriculture, they could not participate in this government "affirmative
action" program of giving land. Significantly, that billion dollar land giveaway program became
the basis of economic prosperity for many white Americans and their descendants. Furthermore,
numerous railroad corporations emerging in the 19th century got their start in huge giveaways of
federal lands, plus hundreds of millions in cash, all to assist private white enterprise. In another
example, most New Deal programs in the 1930s disproportionately subsidized white Americans
and white controlled corporations. The policies of the Federal Housing Administration (FHA)
helped millions of white American families secure housing while until the 1960s that same
agency's policies encouraged the segregation of African Americans in ghettoized communities.
12
. Kenneth W. Smallwood, "The Folklore of Preferential Treatment," Southfield, Michigan,
Unpublished manuscript, 1985.
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Massive New Deal agricultural programs and the Reconstruction Finance Corporation kept many
white bankers, farmers, and corporate executives in business, providing the basis for postwar
prosperity for white Americans. Similarly, massive aid programs have never been made available
to African Americans. Even with the many advances in the educational and economic
opportunities of middle class blacks, housing, income inequality, and other forms of racial
derogation in integrated professional environments continue to reflect segregation and
discriminatory practices.13
Third, there should be caution in assuming that new status positions for members of
lower castes will fully increase their class positions and negate social stigmas. A powerful
illustration comes from the life and work of the African American intellectual, W.E.B. DuBois.
In the Souls of Black Folk, DuBois articulated the problem of racial stigma and identity in terms
of how blacks are perceived by whites in ways that affect their meaningful participation in the
wider society. DuBois stated:
Between me and the other world there is ever an unasked question: unasked by
some through feelings of delicacy; by others through the difficulty of rightly
framing it. All, nevertheless, flutter round it. They approach me in a half-hesitant
sort of way, eye me curiously or compassionately, then instead of saying directly,
How does it feel to be a problem? They say, I know an excellent colored man in
my town.... To the real question, How does it feel to be a problem? I answer
seldom a word.14
DuBois graduated from Fisk University, an all-black Congregational school in Nashville,
Tennessee, where he learned much about white society. DuBois’s image of himself when he
arrived at Fisk sheds important light into race relations as sociologist Elijah Anderson writes in
the introduction of DuBois’s work, The Philadelphia Negro. Although DuBois was “the son of a
servant and had little money of his own,” he had been socialized through his early education in
the prosperous mill town in Massachusetts’s Berkshire Mountains and his familiarity with
upper-class people to think of himself as part of the elite. Anderson adds, “He certainly felt
himself to be far removed from the often destitute, illiterate blacks he encountered in his noble
efforts to teach members of the local black community. The idea that anyone would consider him
a part of that society, merely on the basis of his skin color, had not previously occurred to him. It
was this introduction to life in the South that taught DuBois about racism” or in part what it truly
meant to be black in America.15
13
See the respective works by Douglas S. Massey and Nancy Denton, American Apartheid
(Cambridge, MASS: Harvard University Press, 1993); Andrew Hacker, Two Nations: Black and
White, Separate, Hostile and Unequal (New York: Ballantime Press, 1995); and Joe Feagin and
Melvin Sikes, Living With Racism: The Middle Class Experience (Boston: Beacon Press, 1994).
14
W.E.B. DuBois, The Souls of Black Folk. (New York: Signet Classic Printing, 1982). pp.
43-44.
See Elijah Anderson’s introduction to DuBois’s work, The Philadelphia Negro: A Social
Study (Philadelphia: University of Pennsylvania Press, 1996). pp. x-xii. For a detailed analysis of
15
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At Fisk, DuBois discovered the “rich diversity of the black race” as an undergraduate
student before going on to Harvard and traveling overseas to Germany where he studied with
Max Weber, among others. DuBois would later finish his Ph.D. and graduate from Harvard
University. His job hunt would also turn out to be an education in American race relations
because no white college was interested in hiring him as a junior professor even with his strong
credentials. DuBois’s early life reflects a period best described as racial caste and white
domination. His scholarly writings nonetheless provide insight into an American dilemma.
To know an excellent colored man is to view this individual as an exception while
affirming what others think of the group at large from which he comes. This individual is at first
thought to be an exception to the general rule in how social stigma or racist views impact on the
larger group. What DuBois articulated and illustrated in his own life was that the general pattern
of social stigma and race discrimination will follow as well those “excellent colored
individuals.”16
Racial stigma continues today. Many talented blacks have reached high levels of status
attainments, but race still plays a key role in how they and their children are defined and
perceived. Thurgood Marshall is still known as a black supreme court justice. The late A. Leon
Higginbotham is still known as the outstanding black legal scholar and federal judge. Even
prominent black business people are limited in terms of how far they succeed as Ellis Cose
describes in the Rage of the Privileged Class.17 Even though the children of this class will have
opportunities in the wider society, this does not necessarily mean that they will be treated any
DuBois’s life, see DuBois, Dusk of Dawn: An Essay Toward an Autobiography of a Race
Concept (New York: Schocken, 1968); and, David Levering Lewis, W.E.B. DuBois: Biography
of a Race, 1868-1919 (New York: Henry Holt, 1993).
16
George Fredrickson, for instance, in The Black Image in the White Mind, investigates this
DuBoisian notion by illustrating how racist thoughts among white elites including the clergy,
physicians, intellectuals, business leaders, and other professionals were consolidated in the U.S.
social structure in the 19th and 20th centuries. This image affects not only what whites think, but
also serves as a basis for black limitation in the socio-economic and political economy. See
Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and
Destiny, 1817-1914. (Wesleyan University Press, 1971). Pop artist Stevie Wonder puts it simply
by saying that minorities cannot cash-in their face. Christopher Edley in Not All Black and
White: Affirmative Action and American Values (New York: Hill and Wang, 1996; preface p.
xiii) broadens DuBois’s concept, noting that the “exception syndrome” or that “some of my best
friends are Negroes” is an expression that whites often use while establishing their fides on racial
matters. As Edley contends, “in the exception syndrome, one can hold on to a prejudice about a
group and treat individual counterexamples as mere exceptions to the rule.” If one pushes
Edley’s conception to its logical conclusion, then one gets back to DuBois’s original thought and
how social stigmas affect the group irrespective of social status.
17
See generally Ellis Cose, The Rage of a Privileged Class (New York: Harper Collins, 1993).
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better or live without racial prejudice, social stigmas and their consequences.18 David Shipler’s
survey reveals how whites continue to view blacks as inferior (53.2% felt that blacks were less
intelligent), as not working as hard as whites (62% view black workers as working less hard that
others), and as living on welfare (77%).19 Upper class blacks continue to face this reality. For
example, General Motors instituted an affirmative action program to improve minority-owned
dealerships. This group was highly educated, wealthy, and trained in the successful operation of
car dealerships under GM executives and the like. Because of white resentment and how they
viewed black advancement, each person not only failed but was put on a specific course for
failure based on race. After completing the program, blacks were given dealerships in locations
that GM realized had a history of failure.20
The concern over creamy layers is, at best, a diversion away from the more serious issue
regarding the way race or caste stigma affects a group as they are defined by elites or
representatives of the dominant culture. Color and caste prejudice affects middle and upper-class
groups in the U.S. as noted above. The U.S. situation provides a basis or window for showing how
similar groups abroad might be treated as they increase their opportunities in the wider society,
especially creamy-layer groups.
18
See, for example, the work by Charles Tilly, Durable Inequality (Berkeley: University of
California Press, 1998), chapter-one.
19
See generally David K. Shipler, A Country of Strangers: Blacks and Whites in America (New
York: Knopf, 1997).
For details, see ABC News Night-line manuscript for the program, “Good Intentions.” 2 June
1998. ABC Transcript #4441, pp. 2-9
20
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Leslie Carr in Color-Blind Racism uses a Marxist perspective in order to provide insight
into how inequality persists. Carr claims that the foundation of the U.S. society was based on
capitalistic interests and maintaining that interest through the means of production can operate
simultaneously with a societal superstructure which uses racist ideologies that perpetuate
inequality. Carr notes that people respond to economic forces or “the mode of production of
material life” and describes how social behavior, law, and policy are rooted in that base.21 The
control by whites of the dominant culture relates to the way racist ideology and racial inequality
emerged as Oliver Cox avers to in his work.22 Color-blindness, Carr contends, “is not opposite of
racism, it is another form of racism”;23 this ideology has a way of mystifying the world by hiding,
denying, and inverting contradictions. Carr adds that this ideology “sublimates, diverting energy
into socially acceptable substitutes for real transformations. It solves contradictions in imagination
that cannot be solved in the real world. In these ways, ideology preserves inequality and protects
the primary contradictions in the base of society and thus serves the ruling class.”2421. See Leslie
G. Carr, Color-Blind Racism, pp. 9-11. As civil rights legislation and affirmative action directives
helped increase the opportunities for minorities and women in U.S. institutions, the abstract idea of
capitalistic economic advancement gave rise to the ideology that every individual can achieve the
American dream.25 The further belief is that these advancements for minorities and women in
particular occurred in a race or gender neutral way and that inequality does not exist for these
groups particularly in classes of the creamy-layer. Carr asserts that this abstract ideological view is
21
Leslie G. Carr, Color-Blind Racism (Thousand Oaks: Sage Publication, 1997). pp. 1-3.
22
See generally, Oliver Cox, Caste, Class, and Race: A Study in Social Dynamics (Doubleday,
1948.)
23
See Leslie Carr, Color-Blind Racism, p. x.
24
Ibid., p.5
Assimilation theories which include the hope for black inclusion in the U.S. society are pointed
25
This ideology was forecast by the assimilation theories developed by influential early
sociologists. out in the works by Milton M. Gordon, Assimilation in American Life: The Role of
Race, Religion, and National Origins (New York: Oxford University Press, 1964); Nathan Glazer,
Affirmative Discrimination: Ethnic Inequality and Public Policy (New York: Basic Books, 1975.
Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy, 2 vols.,
(Harper and Brothers, 1944). For a critical view of such assimilation theories, see Joe Feagin and
Aaron Porter, “White Racism,” Choice (February, 1996, pp. 903-914). Also note that because of
social stigma and racial discrimination, Nathan Glazer pulls back from his original thoughts on
assimilation theory after recognizing the unique experience of African Americans. See for example
Glazer’s work in We Are All Multiculturalists Now (Cambridge, MASS: Harvard University Press,
1997, pp. 96-146.
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an exact inversion of social reality as the U.S. model reveals above.26 Race discrimination still
permeates the American society and affects the experiences of creamy-layer groups in the U.S.
The use of color-blindness reflects a sub-component of how a larger racist dynamic operates in the
social fabric.
Even though constitutional law and oversight agencies in India have made great strides
toward altering unfairness and increasing the opportunities for disadvantaged caste groups, if a
comparable notion of caste neutrality sinks into the social fabric of Indian society, then it is
possible for this perception to be an inversion of reality. Inequality can persist behind a caste-free
or color-neutral society. Under this societal illusion, members of creamy-layer groups will not only
be limited in the way that affirmative action can help this group, but also continue to suffer the
effects that social stigmas have on racial or caste identities.
26
Ibid., p. 9-11.
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Endnotes:
11