Randall Kennedy on Affirmative Action

By Don FranzenDecember 15, 2013

Randall Kennedy on Affirmative Action
DON FRANZEN: Thank you very much Professor Kennedy for taking the time to meet with me. Your book For Discrimination: Race, Affirmative Action, and the Law has already received a lot of attention in the press. I think we would all agree it touches on one of the most pressing and timely topics in the field of law. The book includes your own personal story or journey, and discusses how affirmative action affected your life and the position you have at Harvard Law School. Could you take a moment to talk about how affirmative action has shaped your career?

RANDALL KENNEDY: Affirmative action has been very important in my career. As I say in my book, I am from the Deep South. I saw the end of Jim Crow segregation. My parents were refugees from the racist South. My father said he left South Carolina because he was afraid that either he would kill a white man or the white man was going to kill him. So, I certainly have seen the racist side of the race line and the ugliest side of the race line firsthand. Despite that, I have been very much helped by what I call the affirmative action ethos. I have been very fortunate to attend a number of excellent educational institutions. My high school, Saint Auburn School for Boys, is a great school. At Auburn, a number of teachers showed me special solicitude, for a variety of reasons, but I am relatively certain one of those reasons was because I was an African-American student. I worked hard, and I think they believed I showed promise. I think they perceived pushing and advancing promising young African Americans as their mission, that it was their way of making amends for the past, and their way of attempting to move our society along to a better place.

The same was true with Princeton University, another wonderful institution. My book is dedicated to two professors I met at Princeton, Eric Foner, a great historian, and Sanford Levinson, a great law professor. We have become very close friends. Our friendship formed for many reasons, but again, I am sure one of those reasons was their desire to reach out a helping hand to a young African American. I think they probably saw it as their duty, almost, to address racial injustice in the way they could address it, and as academics, I think they saw it as advancing the interest of young African-American intellectuals.

It was true with Yale Law School, and the same was true with Harvard Law School. I was not planning to be a law professor. I was all set to go work for the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund. When I was a third-year law student, I got a call from the dean at Harvard Law School, James Vorenberg. He said people had seen some of my writing, and he asked me if I ever thought about being a law professor. I told him no, he asked me to think about it, and he told me to visit Harvard, and to sit down with him to talk about it. I went to visit, and they talked me into being a law professor. Very unusual thing for Harvard Law School to do — clearly one of the things that was prompting them to reach out to me was their desire to desegregate their own ranks. So, yes, at various levels throughout my adult life I have been helped by affirmative action.

That makes your book a very personal story rather than just an intellectual exercise on policy. I know a good part of your book is devoted to the argument that one of the justifications for affirmative action is a need in essence for social reparation, or trying to undo injustices of the past. Could you comment on that?

I think that’s a very important justification, and it’s especially important in so far as the Supreme Court of the United States has essentially ruled reparations out of order in the discussion. If you go back to the late 1960s or late 1970s, surely one of if not the most important sentiments animating the affirmative action ethos was the idea that it was incumbent on the key institutions of American life to undo the debilitating consequences of past racial discrimination. I am not simply talking about past wrongs, because there are wrongs from the past that live on, that are perpetuated. It is for that reason I believe there is a need for us to continue with interventions that address the consequences of past discrimination. If we do not do that we are allowing the wrongs of the past to continue to prey upon the present, and we ought not do that. Simple justice demands that we try to redress the consequences of past racial oppression to the greatest extent that we can.

You very boldly entitled your book For Discrimination, was that a deliberate effort on your part?

The title was deliberate, but I cannot take credit. That title was suggested by my editor, Erroll McDonald. I wrote the book with a working title I cannot even remember; eventually we needed a title, and McDonald suggested For Discrimination. Initially I resisted that title because when people think of “discrimination,” they usually think of negative connotations, especially when talking about racial discrimination. I like the title now because it is very straightforward. One of the points I make in the book is that discrimination comes in different forms, and not all discrimination is bad. There is invidious racial discrimination, which is bad, but you can have positive discrimination, which is good. I think that comes through in the title.

I think the title really sharpens the debate because you are making clear to the world that perhaps in order to rectify injustice discrimination may be necessary.

Yes absolutely. Somebody might ask, “Professor Kennedy, is all discrimination okay?” No, not all discrimination is okay. I believe there can be reverse invidious discrimination, and I am against any sort of invidious discrimination. If a white person comes to me and says they were excluded from an institution because the institution was trying to stick it to white people, the institution thinks whites will contaminate other people, the institution thinks whites are inferior, or the institution is resentful of white people, I would tell them I am totally against that sort of thing. But, that is not what is going on with affirmative action as it is characteristically practiced in the United States.

Apart from invidious discrimination, people have commented on and praised the fact that you bravely confront the counterarguments to your position regarding affirmative action. One counterargument often raised is whether individuals that had nothing to do with and are not responsible for racial injustices should have to suffer in order to further the purpose of rectifying the past. What do you say to people that make that argument?

Number one I tell them I am against any invidious racial discrimination, but I would remind them that invidious racial discrimination is not what is going on here. The individual raising the argument is saying in order to advance the mission of racial progress or racial equality, they are being disadvantaged, and it is unfair because they were not directly responsible for Jim Crow laws or slavery. Those things happened a long time ago, and their “people” did not have anything to do with it. So, they should not have to pay for it. What I tell these individuals is that they are part of the United States of America, and as such, they get the benefits of that, but they also have to participate in addressing certain missions that all Americans, no matter where they come from, should participate. All Americans should participate in the mission of overcoming racial injustice, and if that means that their individual opportunities are to some degree diminished, that is the price we all pay.

Let me give a couple of examples. In 1988, the Congress of the United States passed the Civil Liberties Act of 1988, in which it apologized to the people of Japanese dissent — Japanese Americans who were in internment camps in World War II. It also allocated money for reparations for people who were in internment camps. I did not have anything to do with the internment, but some of my tax dollars went towards paying the reparations. That is fine with me because I am part of the United States of America, and as a participant in this society, I think it is incumbent upon me to participate in various worthwhile things like, in this instance, apologizing for the terrible things that were done to people of Japanese ancestry. Another example is the fact that my state limits the public service job opportunities available to individuals that have not served in the military. Our leaders have debated whether this was a good thing to do, or a bad thing to do. Judgment was reached, and it was deemed people who serve in the military ought to be rewarded for their service — we incentivize those people, and we give honor to them in various ways. This is also fine. Do not act as if the racial affirmative action context is something that is sui generis, or that we never see this sort of thing, because we see it all the time in various contexts, one of which is race.

There are certain things that would be good for our society to do. It would be good for our society to try to overcome the debilitating effects of past discrimination. It would be good for our society to have our institutions show in the most vivid way possible that people from all sectors of society are welcome in our key institutions. It is a good thing for our society to try to exude a sense of legitimacy with respect to our various institutions. It is a good thing to try to generate diversity in our society so that decision-making can be bettered by taking advantage of different perspectives, different experiences. All of those are various justifications for affirmative action. I think the public institutions are on solid ground in advancing those various missions, and everyone should be participating in the mission even if to some degree it means limiting individual’s opportunities.

You also make the point in your book, to answer the argument regarding whether an individual should have to pay for an injury they did not cause, that the individuals whom advance that argument have generally benefited from the position whites or predominantly white Americans have enjoyed. While they are asserting a disadvantage, they have been on the receiving end of benefits at the same time.

That is true but people forget that. People think the various opportunities that come their way, came their way by dint of their own efforts. People try hard. They try really hard. We are all advantaged and disadvantaged in various ways, for example men are advantaged vis-à-vis women through sexism in society. Of course men tend to deny it, they tend to be unconscious of it, but it is there. Whites, as well, have all sorts of benefits that they think are sort of the natural baseline. They are the natural baseline in a society that has historically advantaged white people. In fact the advantages of white people is viewed as sort of the natural starting place of things, such that if you change the natural starting place, many whites feel disadvantaged. In some instances they are not being disadvantaged at all; they are just being put on a level playing field. But, if you have been advantaged, being put on a level playing field may seem as though it is a disadvantage.

You mentioned earlier that the Supreme Court has sort of eliminated every rationale except a diversity justification for affirmative action, and although you include diversity among the rationales supporting affirmative action, it is not the one you think is the strongest.

The diversity rationale was a latecomer in the whole affirmative action controversy. The diversity rationale really took off after 1978, and it really took off because of a California case, Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Before the Bakke decision, people talked about affirmative action a lot — newspapers, law reviews, there was a lot of discussion about affirmative action, and very few people talked about the diversity rationale. If you look at the briefs in Bakke, the diversity rationale was supposed to be almost like a throwaway argument, but Justice Lewis Powell was willing to enable race to be taken into account for purposes of diversity. The decision in Bakke was a close one, and Justice Powell’s decision became the key one. Therefore, because of Justice Powell’s reasoning, which was frankly out of left field, diversity became sort of the coin of the realm. Since Justice Powell’s decision was so important, since he was the swing vote, and since he credited diversity, everyone started talking diversity. Now that is all anybody talks about when discussing affirmative action with respect to higher education. In my view, I think there is something to the diversity rationale, but I think that other rationales are more important. I used my book to push the other rationales because the Supreme Court changes. The Supreme Court now has a point of view with respect to affirmative action, but in 10 years, if there are different people on the Supreme Court, it may shift or change its view and be open to some of the other arguments. I put the arguments in my book so that people will not forget the other arguments.

Let us take a moment to review the arguments. Could you highlight some of the rationales that you discuss at length in your book?

Sure, I think rectification for the ongoing effects of past discrimination is one. Another one is the idea of integration. This is particularly important because the rectification argument, the compensatory justice argument, the reparations argument works really well with African Americans, but there are many people who have benefited from affirmative action for whom the rectification argument does not work. But, there are other arguments that work very well with them — integration is one of them. For the past 20 years, millions and millions of people have come from other lands. They have not been historically oppressed in America, but in the absence of special efforts to bring them into society, they might very well be left on the margins of American life, and that would not be a good thing. I think it is a good thing that we show people that the institutions of American life are open. So, integration seems to me to be a good justification for affirmative action.

People ought to remember that in the late 1960s, 1970s, one of the things that prompted affirmative action was frankly the buying of social peace. People have forgotten the long, hot summers, a time in which multiple race riots occurred during the American Civil Rights Movement, and to the extent the long, hot summers represented the total fraying of American society. The specter of violence — people ought to remember that. We need to tell everybody they have something in the society, we prize them, we want them to be a part of society, and one way of doing that is by showing people that our institutions are open to individuals like them, to people like, fill in the blank, African Americans, whites, Latinos, Asian Americans, Native Americans, what have you. For purposes of social solidarity, it seems to me that this is important.

One justification people do not talk about much is ongoing racial discrimination. There is an invisible wind of racial discrimination, which hits people of color in the face. It is invisible wind, but it is out there. One way of countering that wind is affirmative action. It is still there; we are not only grappling with the effects of past discrimination. We are also grappling with ongoing present discrimination. It is less than it used to be, but it is still there. That is why there is still a need for affirmative action. So, I think there are a wide range of justifications for affirmative action. I also talk about the cost of affirmative action within my book. There are costs. Some people agree with me, and others think I have made too much of the costs. But, I do think there are costs, and I try to put those costs on the table. I think the benefits outweigh the costs, but I think it is just unrealistic to suppose this social policy does not have costs. Every social policy has costs, including this one.

Earlier this year we had what may turn out to be a very important decision in Shelby County v. Holder, 557 U.S. 193 (2013). In Holder, the Supreme Court, by a five-four decision, decided that the rationale for at least one section of the Voting Rights Act did not apply anymore because times have changed. African Americans are able to register to vote now; we do not need to have martial law in the state electoral system anymore. Does it concern you that this might be the beginning of the argument against affirmative action? Or that people are going to say you were right, but that you are talking about the way things were 60 years ago, not the way things are now? What would you say to that?

Number one, several justices have already made this argument. The logic that leads to Holder, an awful case, is a logic that is right behind the attack on affirmative action. As far as I am concerned, people should feel free to say that, but I do not think judges should take this debate out of the realm of regular politics. For example, people of the state of California, years ago, got rid of affirmative action through regular politics. I think regular politics should rule here. A state is not required to have affirmative action. If a state says it does not want affirmative action, I might disagree with it, but I will live with that. In the realm of regular politics, people say to me, listen, we have had affirmative action for at least three to four decades, things have changed sufficiently. I think fine, let’s test it out, have things changed sufficiently? There has been considerable change in American life, which I do not doubt. I think it is a wonderful thing there has been considerable change in American life. At the same time, let us look at our institutions of higher education. Let us look at the medical profession; let us look at the legal profession. Is it the case that we can still, still, after all that has happened, see the scars of our racist past? The answer in my view is yes we can, we can still unfortunately see the scars. We can see them in the numbers. We know what happens when we can see all sorts of gaps. These gaps are still with us. These discrepancies are still with us. In my view, we still need to intervene because the past is still weighing on us. Not only is the past weighing on us, the present is weighing on us.

One of the interesting arguments you make in your book is that you do not see anything in the Constitution that actually forbids affirmative action. In fact, you take on the issue of the Constitution being colorblind. You argue that in fact the Constitution was never colorblind.

The Constitution mentions race for the first time during reconstruction. The Constitution of 1787, the Constitution that defended racial slavery, said nothing about race. It was only when the reconstruction amendments came to the fore that race is mentioned in the Constitution. People ought to remember that there is nothing magical about the absence of race. The mere absence of race from a statute or the Constitution does not tell us that everything is going to be all right. It could be absent, and we could have an absolutely hellish society that is shot through with racism. What the Constitution demands is that public authorities provide to all persons the equal protection of the law. I think a very strong argument can be made that affirmative action helps us — helps us, it does not hinder us.  It helps us on our way towards reaching a state of affairs in which we can say that all persons actually enjoy the equal protection of the law.

We ran a review of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, the book authored by Richard Sander and Stuart Taylor Jr. William Kidder, an assistant provost at the University of California, Riverside, reviewed it. In Mismatch, the authors present an argument that statistically, empirically, affirmative action does not really help the people it is intended to help. 

The work of Sander and his co-author Taylor has been criticized on all sorts of different grounds, some of which are quite technical. It is very controversial work. In my book, I point out that it has been very controversial. I am willing to suppose that much or at least some of what Sander and Taylor say is correct. They are intelligent people who have done a lot of work. I bet that some of what they say is correct. That is why when I offer my defense of affirmative action, I say I am for intelligent affirmative action. I am for sensible affirmative action. Are there some affirmative action programs which maybe over-promote people? Essentially push people into places where they are probably going to fail? There are probably programs that do that — that is unfortunate, and that ought not to be done. But, every public policy is going to have such problems. Not every one is going to be calibrated correctly. And, to the extent that Sander’s and Taylor’s work shines a light on affirmative action programs that are miscalibrated, I am not going to fight it. If it is true, then it is true.

I do have a couple of other things to say about their theory. It is odd for Sander and Taylor to posit a theory that the beneficiaries of affirmative action are themselves actually being hurt. Sander’s and Taylor’s work has been out for a while, and, before their work, there were other critics of affirmative action. Thomas Sowell, for instance, has been articulating the mismatch theory for decades. Not with the same degree of empirical exploration as Sander and Taylor, but he has been articulating a mismatch theory. African Americans have heard the mismatch theory, and African Americans have overwhelmingly said, “Give us affirmative action.” Now Sander and Taylor are in a position of telling people they do not know their own best interest. Sometimes people do not know their own best interest, but we are talking about adults, people who have looked into affirmative action. It is somewhat odd that Sander and Taylor receive little support from the people whom they seem to want to help the most. Sander and Taylor say we would have more African American lawyers under their system. They would have some racial affirmative action, but a lot less than today. They agree their would be a lot fewer African American lawyers in the most elite schools, but African Americans would go to less elite schools and would pass the bar in greater number. Even if that is true, which I doubt, but supposing it is true, there is still a political question. This is not about individuals, this is about groups, it is about our society, and African Americans have made the judgment that they are willing to pay the cost cited by Sander and Taylor. African Americans are willing to take more African American lawyers at the most elite schools, because the most elite schools have a disproportionate societal effect. Look at the Supreme Court of the United States. Every justice on the Supreme Court of the United States went to two schools, Harvard and Yale. Now you might not like that, but what that shows is the extraordinary influence of the most elite institutions. Sander and Taylor kind of shrug and say, “eh.” They say it is true, if we get rid of a lot of affirmative action the number of African Americans in the most elite schools will decrease, but that is okay because they will increase in less elite schools. I do not think Sander and Taylor are taking into account nearly enough, the disproportionate influence of the most elite places.

What would you say to those that think perhaps you have not given enough consideration to the possibility of having forms of affirmative action that are not based on race but rather more on socioeconomic disadvantages? 

The United States is plagued by all sorts of inequities, all sorts of inequalities, all sorts of oppressions. I am definitely in favor of supplementing racial affirmative action with all sorts of other interventions that target the many sorts of inequalities of American life. There are many poor white people in the United States who need assistance, and I am all for giving them help. I am all for giving help to the great many, many people who are in need of help. I am not just interested in African-American people. I am interested in people of color, but that does not exhaust my interest. I am interested in our country as a whole. I am definitely down with reaching out a helping hand to all who need help, but in doing that, why get rid of racial affirmative action? It is relatively modest intervention that seems to me to have had the effect of distributing opportunity of American life in a good way. It needs to be supplemented — I agree it needs to be supplemented, but let us not end it with the idea in mind that we are going to do some of these other things.

Some people who use egalitarianism against racial affirmative action are only egalitarian when they are attacking racial affirmative action. You never hear them talking about the plight of poor white people other than when their damning racial affirmative action. For the 30 minutes they’re damning racial affirmative action you would think they were socialist. They wave the banner for poor people only to denounce racial affirmative action. As soon as the 30 minutes ends, they do not say anything about poor people. All the other time, they do not say anything about poor people. I think we need to be very careful with the rhetoric we use, such as using egalitarian rhetoric in a reactionary way. The perfect example of that is on the Supreme Court — take Justice Thomas and Justice Scalia. Both of them delight in attacking affirmative action and then sort of saying, “Oh, but we would be all for socioeconomic redistribution.” The only time they evince any type of softness for redistribution is when they’re attacking racial affirmative action. I think it is odd. No, it is not odd. I do not find it odd. It is too in keeping with our racial discourse.

Some people enter this debate and say they don’t like racial affirmative action, but they are all for race-neutral affirmative action, like the top 10 percent plan passed in Texas. In Texas, the top 10 percent of students in any class, in any high school, get an automatic ticket to the University of Texas. The law does not say anything about race on its face. That is called race-neutral affirmative action. It is not race-neutral. The only reason the law was passed in Texas was because the legislature in Texas, and I praise them for this, thought that it would be politically intolerable for there to be a substantially low number of Latinos and African Americans at the flagship institution of the University of Texas. This was in the aftermath of the Hopwood v. State of Texas, when, for a period, the University of Texas could not take race into account, resulting in the number of African Americans and Latino attendees to decrease quickly and dramatically. In response, the legislature created the 10 percent plan.

Sometimes people say race neutral. It is not race neutral. For example, when people decide they want to increase the representation of Latinos and African Americans by using socioeconomic status, because, after all, Latinos and African Americans are disproportionately poor. That is race conscious. Why are we still hiding the ball? Why are we still in denial? The most efficient way of dealing with our racial problems is to call them by their name, racial problems. Race and class are not the same. We have class oppression in the United States, and we have racial oppression in the United States. Sometimes they overlap, but they are distinct. And, it is for that reason that I say I want class redistribution in American life. I do, but I do not want those efforts to crowd out racial affirmative action and other efforts that are explicitly about racial oppression. I do not think it should be either/or, I want both.


Don Franzen is an entertainment and business lawyer in Los Angeles. He is the legal affairs editor for Los Angeles Review of Books.

LARB Contributor

Don Franzen is a lawyer in Beverly Hills specializing in entertainment and business law. He has lectured on entertainment law at the Eastman School of Music, Santa Monica College’s Academy of Entertainment and Technology, the Berklee School of Music in Valencia, Spain, and lectures at UCLA’s Herb Albert School of Music, where he teaches two courses on the law and the music industry. He has published articles on legal issues in newspapers, magazines, and law journals. He serves on the board of the Los Angeles Opera and counts among his clients leading performers in opera, orchestral music, film, and the recording industries. He is the legal affairs editor for Los Angeles Review of Books.


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