Randall Kennedy targets affirmative action in 'For Discrimination'

Why is America so intent on killing affirmative action?

Randall Kennedy's clear-eyed new book, "For Discrimination," offers many reasons, among them: As a remedy for racial injustice, albeit a modest one, affirmative action invokes slavery and, therefore, rattles the philosophical foundation of democracy and fairness upon which much of America believes the country was built. Another reason is that affirmative action is seen as increasingly incompatible with the aims of the so-called post-racial age in which a first black president would seem to argue against any more need for racial redress.

Yet President Obama himself supports affirmative action, reflecting a deep divide of opinion between black and white — deeper than the one between liberal and conservative — and highlighting a third reason why affirmative action struggles to survive in a meaningful way. Throw in the vacillation of the federal and state courts over the last 30 years on the issue — the last case heard by the Supreme Court, Fisher v. Texas, was thrown back to the lower courts last year — this book begins to look timely indeed.

A Harvard law professor, former Rhodes scholar and onetime clerk to Justice Thurgood Marshall, Kennedy as an author and public intellectual has become known for parsing our thorniest racial issues with a mix of scholarly rigor and moral certitude; only such an approach could have made his most famous work, "Nigger: The Strange Career of a Troublesome Word," a bestseller.

Affirmative action may not seem as sexy a topic as the N-word, but Kennedy shows us how it is every bit as racially explosive, and as unresolved. He goes straight at the issue with fearlessness and a certain cheekiness, telling the story in the beginning of the book about how he became a legal academic in an overwhelmingly white environment.

His story illustrates exactly what affirmative action supporters applaud and its detractors decry: As a very promising young black scholar, he is steered into a plum position at Yale, chosen over whites who are almost certainly more qualified on paper. Later on, he is admitted to exclusive professional associations.

Does he feel diminished because of this? Hardly. Black anxiety about getting "special treatment" is one of many anti-affirmative-action-related myths that Kennedy repeatedly counters. But though the book bristles with conviction, it is not a polemic; Kennedy is too skilled a debater and analyst to resort to that. Yet he intuits that AA, because it references a past Americans are almost desperate to put behind them — even black folks, for different reasons — is not really an academic or even legal issue, but an emotional one.

"There will be those, I suspect, who will put a mental asterisk next to my name upon learning that my race counted as a plus in the process of selecting me for induction into these organizations," he remarks early in the book. "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." Touché.

The wide range of court opinions about affirmative action over the years, especially opinions of the Supreme Court, reflects a bigger ambivalence about AA and how legal interpretations of racial fairness are no more reliable or fair than interpretations by the general public — after all, it is the courts that enshrined racial inequality with decisions like Dred Scott and Plessy v. Ferguson. Un-enshrining it is the torturous process Kennedy documents here, with the courts the key players in the fight over how best to achieve that. (Simply declaring the fight against racial inequality over is the modern solution.)

Although a supremely measured narrator, Kennedy is also an uninhibited critic, with some of his sharpest points made in lengthy footnotes that function like telling asides in Shakespeare plays. Here is one footnote that appears during a discussion of how the push for post-slavery reparations animated affirmative action — a position vehemently opposed by conservatives: "The federal government and the states were not acting in blatant violation of the United States Constitution when they permitted, encouraged and participated in Negro slavery," he writes. "By contrast, the United States government and the states did act in blatant violation of the United States Constitution when, even after the Reconstruction amendments, they joined with private parties imposing blacks and other racial minorities a cruel and all-encompassing pigmentocracy in which colored skin became the target for humiliation, calumny, ostracism, insult, deprivation and violence."

AA opponents like to say that colorblindness is a principle embedded in the Constitution. Kennedy shows us that it is not. While the original document said nothing specific about race, it simultaneously "countenanced slavery and all manner of other forms of racial mistreatment," he points out. Yet Kennedy does not hesitate to scrutinize inconsistencies and shibboleths on the pro-AA side, such as a belief that all standardized tests used to gauge qualifications of students and new hires are inherently unfair to people of color. The stakes of such scrutiny are high for AA proponents, who are frankly outnumbered, but Kennedy does not play politics.

He does a great service by detailing how affirmative action was downgraded into the less active and much less controversial notion of diversity, a word that has expanded its meaning over the years to include just about everybody at the expense of diluting the original aim of helping blacks overcome historical obstacles to opportunity. In the landmark Bakke case in 1978, Justice Lewis Powell decided the racial redress of affirmative action was overreach and said achieving "diversity" was a more acceptable goal in terms of using race as a factor in college admissions.

Enlarging diversity to include marginalized groups such as women and gays is fine in principle, but Kennedy's concern is that the real crisis of black marginalization has gotten lost in the transition. Diversity may make us feel good, but when it comes to achieving racial justice, it simply can't do the job.

But of course it isn't meant to. That's the biggest question driving this book — why don't we want to address the racial inequity that is so clearly still with us? After 40 years of affirmative action that has failed that goal even in the most racially liberal times, we are no closer to an answer.

Kaplan is the author of "Black Talk, Blue Thoughts, and Walking the Color Line: Dispatches From a Black Journalista."

For Discrimination
Race, Affirmative Action, and the Law

Randall Kennedy
Pantheon: 304 pp., $25.95

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