For Discrimination: Race, Affirmative Action, and the Law

For Discrimination: Race, Affirmative Action, and the Law

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by Randall Kennedy
     
 

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In the wake of the Supreme Court’s recent decision regarding Fisher v. University of Texas, For Discrimination is at once the definitive reckoning with one of America’s most explosively contentious and divisive issues and a principled work of advocacy for clearly defined justice.
 
What precisely is affirmative action, and why

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Overview

In the wake of the Supreme Court’s recent decision regarding Fisher v. University of Texas, For Discrimination is at once the definitive reckoning with one of America’s most explosively contentious and divisive issues and a principled work of advocacy for clearly defined justice.
 
What precisely is affirmative action, and why is it fiercely championed by some and just as fiercely denounced by others? Does it signify a boon or a stigma? Or is it simply reverse discrimination? What are its benefits and costs to American society? What are the exact indicia determining who should or should not be accorded affirmative action? When should affirmative action end, if it must? Randall Kennedy, Harvard Law School professor and author of such critically acclaimed and provocative books as Race, Crime, and the Law and the national best-seller Nigger: The Strange Career of a Troublesome Word, gives us a concise, gimlet-eyed, and deeply personal conspectus of the policy, refusing to shy away from the myriad complexities of an issue that continues to bedevil American race relations.
 
With pellucid reasoning, Kennedy accounts for the slipperiness of the term “affirmative action” as it has been appropriated by ideologues of every stripe; delves into the complex and surprising legal history of the policy; coolly analyzes key arguments pro and con advanced by the left and right, including the so-called color-blind, race-neutral challenge; critiques the impact of Supreme Court decisions on higher education; and ponders the future of affirmative action.

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Editorial Reviews

Publishers Weekly
As the titles of this and his previous books (among them, The Persistence of the Color Line: Racial Politics and the Obama Presidency) suggest, Harvard law professor Kennedy knows where the nerve endings are in discussing the complexities of race in America. While clearly convinced that “the net benefits generated by affirmative action justify its continued existence,” his probe of those ganglia is dexterous. “The stark patterns of racial disparity... attend every index of well-being and development in American society,” Kennedy writes, “including educational attainment” (his focus in this book is on higher education). After reviewing the history of affirmative action, concluding that “ambivalence triumphant” best describes its current status, Kennedy assesses the arguments, pro (reparations, integration) and con (the associated stigma). Following a consideration of the “apparent attractions of color blindness” and its weaknesses, Kennedy turns to the Supreme Court’s record—one he finds “marked by ambivalence, confusion, evasiveness, obfuscation, and inconsistency” in cases involving the state universities of California, Michigan, and Texas. Kennedy’s admirably balanced argument in favor of affirmative action (though the author has some reservations) is provocative and his style is accessible. When the Supreme Court decision on Fisher v. University of Texas is handed down, Kennedy’s latest will be required reading. Agent: Andrew Wylie, Wylie Agency. (Sept.)
From the Publisher
Praise for For Discrimination

“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.”
Washington Post
 
“Refreshingly honest. . . . Beginning with its provocative title, For Discrimination is a profoundly honest work on a topic frequently marked by mendacity.” —New Republic
 
“Kennedy offers a clear-eyed take on America’s battle over affirmative action and diversity. . . . He goes straight at the issue with fearlessness and a certain cheekiness.” —Los Angeles Times 

“Compelling. . . . Powerful. . . . Rare intellectual honesty and fair-mindedness . . . Kennedy deftly presents the case against affirmative action—and explains why he supports it anyway.” —Wall Street Journal

“Meticulously argued. . . . An illuminating, detailed argument in favor of affirmative action and its application via race-based methods . . . Kennedy vividly portrays Supreme Court decisions as malleable, subject to reinterpretation, and even reversal not only because of the makeup of the court but because of the changing tide of political circumstances and public opinion.”  —Boston Globe
 
“Kennedy’s For Discrimination provides supporters of affirmative action with the penetrating, concise, coolheaded arguments for racial justice they’ve been waiting for.” —Vanity Fair
 
“Remarkably astute and tough-minded. . . . Should be required reading for anyone interested in genuine equal opportunity in the United States.” —Florida Courier      
 
“This is an important book. Kennedy, who admits to having benefitted from affirmative action, will force a lot of long-needed conversations with his opinions, conversations for which he includes abundant, solid fodder. This book is about as far as you can get from a casual read, and should be approached with an open mind, general legal knowledge, and a good dictionary. If you can handle that, then go ahead and make For Discrimination yours.” —Times Weekly

“Provocative. . . . Important. . . . For Discrimination offers a thorough analysis of the topic and leaves the reader feeling as though he or she has just left a lawyer’s office having been briefed on the many perspectives on affirmative action within in the United States, and is now ready to testify in court.”  —PopMatters

“This is arguably the most clearheaded defense of affirmative action ever written. Kennedy’s incisive analysis includes a compelling critique of a range of arguments by legal experts and social scientists on the pros and cons of affirmative action. In clear prose For Discrimination advances powerful arguments for sensibly defined affirmative action. This thoughtful book is a must-read for all Americans devoted to addressing past and current injustice.” —William Julius Wilson, Lewis P. and Linda L. Geyser University Professor, Harvard University

For Discrimination considers the definition and boundaries of affirmative action and why it is both championed and denounced in society, and is a fine pick for social issues and legal collections alike. It considers its benefits, costs, its impact on different racial groups, and provides a personal review of the policy and its many issues impacting American race relations. The result is a powerful assessment and history of affirmative action processes and perfect for classroom debate and discussion at both the high school and college levels.”  —California Bookwatch

“Required reading. . . . Kennedy knows where the nerve endings are in discussing the complexities of race in America . . . Admirably balanced and provocative.” —Publishers Weekly

“Fair and tough-minded. . . . Kennedy continues his strong track record of making thorny conversations about race and the law accessible to general readers, discussing complicated issues and court cases in a lucid, forceful fashion.” —Kirkus Reviews

“Kennedy addresses one of America’s most contentious issues—affirmative action—on two fronts: the colorblind, race-neutral ideal and the need to address the impact of both past and contemporary racial discrimination. . . . A probing and well-considered look at the complexities of race relations and the continuing controversial issues of affirmative action in contemporary America.” —Booklist

Library Journal
Kennedy (law, Harvard Law Sch.; The Persistence of the Color Line: Racial Politics and the Obama Presidency) observes here that affirmative action “is a slippery term even when one is trying to be clear and straightforward.” He then proceeds, in clear and straightforward language, to look at affirmative action’s definitions, survey its history, analyze the arguments for and against, and frame a reasoned and cogent case for its existence. Especially edifying is the chapter on the Supreme Court’s treatment of the issue in the higher education arena. The author carefully scrutinizes three pivotal cases, including one currently pending, and reveals a history of confusion and evasion in affirmative action jurisprudence.

Verdict This fair and factual book is a thorough and evenhanded review of a divisive policy, with all of its implications and complications. Well documented and accessible, it is an important read for those interested in questions of racial disparity and its remedies. [See Prepub Alert, 3/18/13.]—Joan Pedzich, formerly with Harris Beach PLLC, Pittsford, NY
(c) Copyright 2013. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Kirkus Reviews
A noted legal scholar considers the always-contentious debate over affirmative action. Kennedy (Harvard Law School; The Persistence of the Color Line: Racial Politics and the Obama Presidency, 2011, etc.) continues his strong track record of making thorny conversations about race and the law accessible to general readers, discussing complicated issues and court cases in a lucid, forceful fashion. He begins by observing that, despite being a son of the Jim Crow South, his own productive life was certainly enhanced by affirmative action: "I have often been shown special attentiveness in competitive settings in which my blackness was perceived as a plus." Kennedy writes powerfully about the complex development of affirmative action as a largely unanticipated outgrowth of the struggle between the civil rights movement and Jim Crow. He then examines the major Supreme Court cases dealing with affirmative action in education, noting that while the well-known Bakke decision of 1978 seemingly protected affirmative action, it produced the "regrettable misjudgment [that] remedying social discrimination is an inadequate justification" for such programs, a feint pursued by conservatives ever since. Kennedy produces a narrative of the subtle changes over time in public response to and perceptions of affirmative action in support of his argument that it's more fragile than generally realized, and it's worth continuing: "Ending it prematurely would be a major calamity." While the author is willing to consider the various counterarguments suggesting that affirmative action is fundamentally unfair or has run its course, including a thoughtful chapter on the legal concept of "color blindness," he repeatedly asserts that his "central concern" in considering affirmative action is "the unfinished business of rectification and integration [given] segregation is not far away historically." Lay readers with an interest in affirmative-action controversies should find him both fair and tough-minded. A strong synthesis of legal precedents and historical narratives.

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Product Details

ISBN-13:
9780307907387
Publisher:
Knopf Doubleday Publishing Group
Publication date:
09/03/2013
Sold by:
Random House
Format:
NOOK Book
Pages:
304
Sales rank:
456,953
File size:
2 MB

Read an Excerpt

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. 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.

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 Prince-ton, 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.

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.

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 remains 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.

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.

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, 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. 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.” Many Americans misconceive achievement, attributing it entirely to individual effort and talent. 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.

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