‘For Discrimination: Race, Affirmative Action, and the Law’ by Randall Kennedy
By Gerald Early,
One would think that the last thing the American reading public needs is yet another book on affirmative action. Even by the late 1990s, library shelves were groaning with dozens of books, pro and con, on the subject. The positions are clear:
The right is opposed to affirmative action on the grounds that it denies or perverts merit; that it emphasizes the group over the individual; that it generates reverse discrimination, which is pernicious; that it insists on equal results instead of equal opportunity, a goal that is patently un-American and can be realized only through egregious social engineering; and that it intensifies racial consciousness by creating a compensatory racial caste system as a form of bourgeois patronage.
The left, on the other hand, supports affirmative action as a form of reparations to minorities, particularly blacks, for past injustices; as a way of achieving diversity and integrating the major institutions of American life; as a form of economic equity; and because access, which is essentially what affirmative action offers, is a civil right.
One might counter the right’s position by positing that the elderly, veterans and the disabled, as groups, are given privileges and preferences, enforced by governmental acts, that others do not get. Why not race, which, as a social and political category, has had a far more troublesome and disruptive history that has deeply stigmatized and castigated black people who are not guilty of having done anything to the whites who, in fact, were largely responsible for the stigma and castigation? Moreover, even if the common conservative belief that blacks are inherently dysfunctional is true, how would that fact make them immune to being wronged or damaged? Here, the conservatives seem simply to be retreading “the prostitute cannot be raped” argument as a defense for the hatred that affirmative action is meant to defang.
One might counter the left’s position by positing that affirmative action is a rather crude form of liberal reformist charity that has intensified class divisions among blacks, and has undermined black institutions and black institution-building by siphoning off the best and brightest in the black community. Historically black colleges and universities can hardly find black professors to fill their faculties because, just as blacks individually find it difficult to compete against whites, black institutions have no chance of surviving against their well-capitalized white counterparts. The policy is also critiqued for having created a sense of entitlement in blacks, a kind of political militancy that has deformed their sense of group self-reliance and made claims of victimhood a way to “get over on” or “hustle” white folks in a sucker’s game, which many liberal whites indulge in because they don’t really believe that blacks are grown-ups.
All of this is familiar to those who have followed the affirmative action wars of the past four decades — the Supreme Court decisions, the polemical monographs, the op-ed exchanges, the televised shouting matches between defenders and opponents. Doubtless, it is a testament to liberal genius that a policy disliked by most Americans, often intensely so, should have endured with such power and continue to evoke great passion.
What Harvard law professor and prolific author Randall Kennedy brings to this is his sharp mind, accessible prose and level-headed reasoning. “I champion sensibly designed racial affirmative action,” he writes, suggesting the possibility of a poorly designed type of affirmative action in which opponents mistake a flaw in the execution for a flaw in the conception. He also writes that “affirmative action, in its typical design and implementation, is in accord with the federal Constitution.”
Kennedy strenuously defends affirmative action, using arguments that may not be new but are thorough and intelligent. He is willing to point out weaknesses in the arguments of fellow defenders — such as the testing deniers who attack the legitimacy of merit and its measurements — and in teacherly (or lawyerly) fashion he ends each chapter with a point-by-point recapitulation of how a particular facet of the defense argument should be articulated.
He concedes that blacks, even middle-class, well-educated ones, tend to be outperformed on standardized tests by whites and can be less knowledgeable in their chosen fields. The fear that opponents will “see racialized gaps as manifestations of innate racial inferiority or virtually irremediable cultural deficiencies” is great, and thus this painful explanation is despised and explained away — energetically though not persuasively — by many black defenders as not being true. Kennedy sees this as part of a larger problem: how violent and persistent racism has stigmatized and stunted blacks, and how only honesty about it will help them overcome this gap and make a more effective case for affirmative action. For Kennedy, attacking the legitimacy of merit is beside the point.
Kennedy’s book is a good primer for the lay reader. He provides background on how affirmative action came into being between 1964 and 1971, growing out of the Civil Rights Act of 1964, although supporters of that law assured opponents and skeptics that it would not produce racial preferences. He discusses the flowering of affirmative action during Richard Nixon’s first term and its up-and-down course under subsequent presidents, along with the several definitions the term has been given. He provides an account of the affirmative action case law and considers all the key arguments, pro and con.
He speaks at some length about the stigma attached to affirmative action, conceding that it is a serious problem, but not serious enough to scuttle the policy, that blacks benefit more from it, despite the stigma, than they would from a so-called color-blind policy. He freely admits that he benefited from it and is thankful for what it has done for him. Clearly, this autobiographical bit is meant to counter Supreme Court Justice Clarence Thomas’s view of the damage and demoralization he felt as a beneficiary of affirmative action. Kennedy takes Thomas’s anti-affirmation-action opinions rigorously to task throughout the book.
Kennedy is one of our most important and perceptive writers on race and the law, and the mere fact that he wrote this book is all the justification necessary for reading it. “For Discrimination” is a heartfelt and tautly argued defense of affirmative action, a smart, concise refresher of the liberal position that is well worth the general reader’s attention.
Gerald Early is Merle Kling professor of modern letters at Washington University in St. Louis. His latest book is “A Level Playing Field: African American Athletes and the Republic of Sports.”
FOR DISCRIMINATION Race, Affirmative Action, and the Law By Randall Kennedy Pantheon. 293 pp. $25.95