Race, Affirmative Action, and the Law Read online

  Copyright © 2013 by Randall Kennedy

  All rights reserved. Published in the United States by Pantheon Books, a division of Random House LLC, New York, and in Canada by Random House of Canada Limited, Toronto.

  Pantheon Books and colophon are registered trademarks of Random House LLC, a Penguin Random House Company.

  Library of Congress Cataloging-in-Publication Data

  Kennedy, Randall, [date]

  For discrimination : race, affirmative action, and the law / Randall Kennedy.

  pages cm

  Includes bibliographical references and index.

  ISBN 978-0-307-90737-0

  eBook ISBN: 978-0-307-90738-7

  1. Affirmative action programs—Law and legislation—United States. 2. Race discrimination—United States. I. Title.

  KF4755.5.K46 2013 342.730873—dc23 2013001471

  www.pantheonbooks.com

  Cover design by Linda Huang

  v3.1

  In Praise of Eric Foner and Sanford Levinson

  I have been blessed to know wonderful teachers. This book is dedicated to two who stand out as extraordinary models, mentors, and friends. Professor Eric Foner is the preeminent interpreter of the history of the United States. Professor Sanford Levinson is the most adventurous, independent, and wide-ranging intellectual in the American legal academy. For more than three decades they have encouraged me unstintingly. I thank them for the tremendous positive difference they have made in my life.

  Contents

  Cover

  Title Page

  Copyright

  Dedication

  Introduction: Growing Up with Affirmative Action

  1. Affirmative Action in the History of American Race Relations

  2. The Affirmative Action Policy Debate: The Key Arguments Pro and Con

  3. The Color-Blind Challenge to Affirmative Action

  4. The Supreme Court and Affirmative Action: The Case of Higher Education

  5. Reflections on the Future of the Affirmative Action Controversy

  Acknowledgments

  Notes

  Index

  A Note About the Author

  Other Books by This Author

  Introduction

  Growing Up with Affirmative Action

  I can clearly recall watching the Jerry Lewis version of the film The Nutty Professor from a balcony set aside for African Americans in a theater in Columbia, South Carolina, in the summer of 1963. Ironically, as a nine-year-old, I perceived that Jim Crow arrangement as favoring blacks; it was far easier for us to throw candy down on the whites seated below than for them to throw things up at us. Back then, I thought that Americans were divided into teams designated by complexion. State authorities fed this perception with a chain in the middle of the road that separated whites and blacks in the area where my aunt lived, the choice to close rather than desegregate public parks, and ordinances requiring racially separate bathrooms (especially memorable for me were the signs differentiating “white ladies” from “black women”).

  I was born in Columbia in 1954, the year the Supreme Court invalidated racial segregation in public schools. I visited frequently but did not live there. Fleeing racism like many millions of other Southern black refugees, my parents raised me and my siblings in Washington, D.C. My father once told me he feared that if he remained in the Deep South, he would kill or be killed in a racial altercation. He was a postal clerk who attended a couple of years of college at two black institutions: Dillard University, in New Orleans, and Southern University, in Baton Rouge. My mother was a schoolteacher who earned an undergraduate degree from South Carolina State College, an institution created for Negroes in order to “protect” the state’s white university. When she sought a higher degree, she learned that that sort of study was unavailable to her in her home state. To fulfill what they perceived as their obligation under “separate but equal,” state authorities subsidized her tuition so that my mother could study “abroad” at some institution that would accept blacks.a That is how she wound up as a student at New York University, where she earned a master’s degree.

  Throughout the late 1950s and early 1960s, I enjoyed a happy childhood in a loving household. By moving north, my family did not wholly escape racism; anti-black attitudes and practices were (and are) a national phenomenon. But what we encountered in D.C. paled in comparison with what my extended family faced in South Carolina; one of my cousins was at the civil rights protest at South Carolina State College in which three undergraduates were murdered by state police in an episode of racially motivated violence that, while the subject of a fine book, has never received the attention it warranted.b

  In my house, discussion about the civil rights movement was constant. From my parents I learned to revere well-known heroes and heroines—Martin Luther King, Jr.; Rosa Parks; Fannie Lou Hamer—as well as lesser-known figures like James Hinton, Modjeska Simkins, and Matthew Perry. Subsequently, I have come to appreciate with ever-deepening gratitude the benefits they pried open and that I have enjoyed as a matter of course. For one thing, I have had the privilege of attending an extraordinary array of schools that became accessible to more than a negligible number of black students only after the late 1960s: St. Albans School for Boys (1968–73), Princeton University (1973–77), and Yale Law School (1979–82). An affirmative action ethos played a role in my admittance and flourishing at each of these selective, expensive, and powerful institutions. This ethos consists of a desire to make amends for past injustices, a commitment to counter present but hidden prejudices, a wish to forestall social disruption, and an intuition that racial integration will enrich institutions from which marginalized groups have largely been absent.

  Of course, I encountered invidious racial discrimination in these schools periodically, but, luckily for me, the balance of my encounters along the race line were positive. I have often been shown special attention in competitive settings in which my blackness was perceived as a plus. I am quite certain that my race played a role in prompting teachers at St. Albans—the most formative of the schools I attended—to be especially helpful to me during my days as a student there. The same was true at Princeton, where I enjoyed the solicitude of William Bowen, who was then the president of the university, and Neil Rudenstine, the university provost (and later the president of Harvard). Their generosity was due, in part, to the mysterious alchemy of friendship. It was also due to their self-conscious, systematic efforts to lend special aid to promising scholars of color in America and indeed around the world. Throughout their distinguished careers, Bowen and Rudenstine have been highly effective practitioners of the affirmative action ethos.1

  When I was a senior in college, considering law school, I attended a gathering that featured the Yale Law School dean of admissions. He distributed a document that included a chart noting the range of Law School Admission Test (LSAT) scores of the students in the most recent entering class. I had just received my LSAT results. My score was disappointing—low enough that it did not even appear on the chart. I waited until the dean had fielded all of the other students’ questions before I bashfully approached him and asked whether, given my score, I should still apply. He asked what sort of grades I had earned. When I told him that I had an A-minus average, he urged me to proceed. I won admission to Yale, Harvard, and every other school to which I applied. I had the profile of a hard worker, and I also had a halo over me, having just won a Rhodes Scholarship. In other words, without affirmative action I would surely have gained admission to a fine law school. But in its absence, and in the face of that spectacularly mediocre LSAT score, would I have gained admission to Yale and Harvard? Maybe not.

&nbs
p; I attended Yale Law School (YLS) in the aftermath of Regents of the University of California v. Bakke (1978). In that landmark ruling, the Supreme Court invalidated a particular affirmative action program but upheld affirmative action in university admissions in general, if structured in a certain way and pursued for the sake of “diversity.” At YLS, virtually all black students supported affirmative action. Doing so was seen as a sacred communal obligation. A memorable dinnertime discussion with black peers in my first year involved the question of what to do when Bakke became the subject of inquiry in class. One upperclassman (who has subsequently distinguished himself in government service and business) argued passionately that the case allowed for only one defensible outcome: he maintained that we ought not allow Bakke to be debated, because our presence at the school should not be subject to debate. He recommended that we walk out of class if opposition to affirmative action was voiced. I recall thinking at the time that that advice was silly. How else were we—aspiring lawyers—to master the arguments and counterarguments regarding affirmative action other than by engaging antagonists? But I also remember biting my tongue; as a newcomer, I thought it prudent to be quiet until I got a better sense of my surroundings.

  Affirmative action figured, too, in another episode that re- mains vivid for me decades later. In my second year, in the introductory course on taxation, a black student was the first person called on. There were only two or three other black students in that class, and I made it a point to speak with them afterwards. I wanted to know whether they had felt as anxious as I had when our black classmate was called upon and whether they had felt as relieved as I had when she displayed mastery of the relevant material. They told me that they, too, had felt personally implicated by her performance and that they, too, had cheered silently when she answered commendably, putting “the race” in a good light. The perception of linked fate and that feeling of being always on the spot as a representative of the race, at least in mixed company, are features of African American life that predate affirmative action and arise outside of its presence. They are accentuated, however, in settings in which affirmative action is salient.

  In law school, I earned the respect of professors and served on the editorial board of The Yale Law Journal. My most instructive and inspiring experience during law school was working at the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund (LDF). There I had the good fortune of meeting an array of wonderful attorneys, including Jack Greenberg, who offered me a position at LDF. I would have accepted the offer but for the intervention of James Vorenberg, dean of Harvard Law School. He called me near the end of my final year at Yale to ask whether I had considered a career in legal academia. I told him that I had not but that I was open to thinking about it. Dean Vorenberg invited me to Harvard to talk with him, and I did so on several occasions during the postgraduate years when I served as a law clerk for Judge J. Skelly Wright of the United States Court of Appeals and Justice Thurgood Marshall of the United States Supreme Court. Vorenberg and his colleagues convinced me that a career as a law school professor would be fun and fulfilling.

  This recruitment was highly unusual. Rarely does Harvard seek to persuade someone to apply for a faculty position. Dean Vorenberg and his colleagues did so in my case because influential professors at Yale had touted me, because I had written essays that appeared in a number of national publications, and because of the prestige in academic circles of the judges for whom I was clerking. They also took extra steps to recruit me because they wanted to add some color to a faculty that, in the mid-1980s, included only one African American and no Latinos, Native Americans, or Asian Americans. During the two years before my arrival, in 1984, the campus had been beset by highly publicized protests in which a substantial number of students and a small number of faculty members accused the law school administration of discriminating against minority academics of color or failing to reach out sufficiently to recruit them.2

  Affirmative action played a role not only in eliciting my candidacy; it played a role, too, in the ultimate determination to make me an offer. Was I “qualified”? Sure, I was. Indeed, I was highly qualified. But so, too, were still stronger candidates, probably all of whom were white. Top law schools search not merely for those who are highly qualified; they search for the most outstanding among the best qualified. I doubt that I measured up to that standard. To obtain an offer, I needed and received a boost from affirmative action. A race-sensitive desire to assist a promising black scholar, along with my own hard-earned skills and credentials, helped me gain admission to a faculty that otherwise would probably have been outside my reach.c

  Affirmative action has also buoyed my professional career. In 1998, I was inducted into the American Academy of Arts and Sciences and the American Philosophical Society, two of the country’s most prestigious honorific academic societies. By that point I had built a record of which I could justly be proud, including articles in leading law reviews and an award-winning book. Still, racial considerations explain in part why I was honored ahead of others, senior to me, who had deeper, more distinguished records than mine. Having snubbed outstanding black scholars in previous eras,d the American Academy and similar organizations are using blacks like me to make amends and to serve other functions.

  I do not feel belittled by this. Nor am I wracked by angst or guilt or self-doubt. I applaud the effort to rectify wrongs and extend and deepen desegregation in every aspect of American life.

  There will be those, I suspect, who will put a mental asterisk next to my name upon learning that my race (almost certainly) counted as a plus in the process of selecting me for induction into these organizations. If they do, then they should also insist upon putting a mental asterisk next to the name of any white person who prevailed in any competition from which racial minorities were excluded.e The distinguished historian Eric Foner highlights this point nicely, noting that when he graduated from Columbia College at Columbia University in 1963, his class was all male and virtually all white. “Most of us,” he writes, “were young men of ability, yet had we been forced to compete for admission with women and racial minorities, fewer than half of us would have been at Columbia.” Still, he observes, “none of us … suffered debilitating self-doubt because we were the beneficiaries of affirmative action—that is, favored treatment on the basis of our race and gender.”3

  Many Americans misconceive achievement, attributing it entirely to individual effort and talent.f In reality, though, achievement stems from many sources: individual effort, to be sure, but also luck (the good fortune to have a healthy body and mind) and social support (family, schools, parks, libraries, laboratories). In assessing my own record, I try to maintain equanimity, knowing that on account of race I have sometimes been penalized and sometimes been preferred. I do my best and hope that my work meets high standards. I realize, though, that judgment is social, contingent, and subject to forces beyond my control.

  Does my status as a beneficiary of affirmative action oblige me to support it? Absolutely not. Mere benefit from a policy imposes no obligation to favor or defend it. Warren Buffett should not be precluded from condemning an unwise tax provision that favors the wealthy simply because he was assisted by it. If a policy is wrong, one should speak out against it. Reasonable affirmative action, however, is not wrong.

  I champion sensibly designed racial affirmative action not because I have benefited from it personally—though I have. I support it because, on balance, it is conducive to the public good. It is a continuation and intensification of an egalitarian and democratic impulse in American race relations that has been gathering momentum, albeit fitfully and with dramatic reversals, since at least the Civil War. Racial affirmative action partially redresses debilitating social wrongs. Racial minorities, and blacks in particular, have long suffered from racist mistreatment at the hands of the federal government, state governments, local governments, and private parties. This oppression has produced a cy
cle of self-perpetuating problems that will not resolve themselves without interventions that go beyond prospective prohibitions on intentional racial mistreatment. Past wrongs have diminished the educational, financial, and other resources that marginalized groups can call upon, and have thus disadvantaged them in competition with whites. Hence, it is not enough simply to end racist mistreatment. Reasonable efforts to rectify the negative legacy of past wrongs are also morally required.

  Compensatory justice is not the only strong basis for racial affirmative action. It can also be defended as an adjunct to antidiscrimination measures, countering hard-to-identify racial biases that continue to impede racial minorities. Antidiscrimination norms are notoriously underenforced, given the difficulty of discerning violations, loopholes in the law, and the expense of litigation. Working as a discrimination-blocking prophylactic, affirmative action indirectly counteracts misconduct that would otherwise be left unhindered.4

  Affirmative action also usefully integrates marginalized groups. While compensatory affirmative action works on behalf of groups that have suffered historical mistreatment, integrationist affirmative action can work on behalf of any group that is wrongly alienated from the main currents of American life, no matter what the cause of its isolation or estrangement. Resuscitating aims and sentiments that animated key sectors of the civil rights movement, integrative racial affirmative action, in the words of Professor Elizabeth Anderson, “helps people learn to cooperate across racial lines, breaks down racial stigmatization, interracial discomfort, and habits of segregation, makes decision makers more aware of and accountable for the impact of their decisions on all racial groups, and invigorates democratic exchange in civil society.”5

  Affirmative action can also serve a pedagogical function, by facilitating the creation of environments in which, aided by racial diversity, enriched learning and wiser decision making ensue. Close observers of various types of organizations—universities, firms, juries, etc.—maintain that diversity often enhances their overall performance. The diversity rationale is a relative newcomer among justifications for affirmative action. It did not attain prominence until the Bakke decision and has been viewed with skepticism ever since, even among strong proponents of affirmative action. I used to disdain the diversity rationale, and I continue to think that some of the claims made on its behalf are excessive.g Still, there is something true and powerful in the message that concerted efforts to include marginalized groups in society’s key forums are not only abstractly virtuous but concretely productive, not only good for beneficiaries but good for the institutions to which they contribute.