Randall Kennedy: Racial Preferences Are Fair—and They Work
An Interview with Randall Kennedy
October 9, 2013
Oct 9, 2013
22 Min read time
An Interview with Randall Kennedy
Andra Gillespie: So I must admit I read your book, For Discrimination: Race, Affirmative Action, and the Law, a lot while I was on planes in the last couple of weeks, and I found myself a little embarrassed to hold the book up because I wasn’t quite sure how people would react to the title. You’ve been known to have very provocative titles to your work, so what made you choose this title?
I’m for affirmative action, but the limitations imposed by its tilt in favor of the middle- and upper-class sectors of minority communities needs to be on our radar screens.
Randall Kennedy: This title was the suggestion of my editor, Errol McDonald. Initially I was resistant to it because “discrimination” usually has a negative connotation. I’m sure that his idea was to use that typical impression to generate a provocation by proclaiming that I am for discrimination of a certain sort. The title has grown on me. Now I like it.
AG: Why do you like it?
RK: For one thing, in the bookstore you very much want people to take a second look at what you’re offering. For Discrimination will get that all-important second look.
AG: In your book you are trying to engage in this dialogue about the rhetorical excesses in the debate on affirmative action, both from the right and the left. You take issue with colorblind theorists on the right, who want to dismantle affirmative action, but you also look at people on the left, and you criticize them for not acknowledging some of the downsides of affirmative action. Can you talk about that a little bit more?
What about all these kids in Detroit who don’t even get out of high school? Where are the lawyers for them? Where are the marches for them?
RK: Well, I do talk a good bit about critics on the left, in part because in my view they’ve gotten insufficient attention. As the country has moved further to the right, critics of affirmative action on the left have become less vocal, because I think people have become more afraid. In the late 1960s and early 1970s, there was the prospect of more radical measures of redistribution. But as those alternatives withered, people on the left who had sneered at affirmative action for being too modest, if not downright conservative, started viewing it with more respect. They thought, essentially, that perhaps affirmative action is not as vigorous as we’d like, it’s not as all-embracing as we’d like, it’s not as strong as we’d like, but it’s certainly better than nothing. So people who had once been critical of affirmative action from the left, shut up. But their ideas are important. They did have good criticisms of affirmative action, especially affirmative action in higher education. And people from the right, interestingly enough, have appropriated criticisms of affirmative action that used to be voiced on the left. Clarence Thomas is the most vociferous critic of affirmative action on the Supreme Court. He is a thoroughgoing right-winger. Yet some of his critique of affirmative action echoes the critique once voiced by people on the left. He says, essentially, Listen, why are we spending so much time and energy focusing on middle class black people who already, in the overall scheme of things, are doing pretty well? I mean, if you’re a plausible candidate for admission at the University of Michigan Law School, you’re doing pretty well. That means you’re a college graduate—it means you're a pretty good college graduate if you’re even in the running. And so he says, What about all these kids in Detroit who don’t even get out of high school? Where are the lawyers for them? Where are the marches for them? That’s a good criticism. That’s a good point that highlights the class tilt of affirmative action and the class tilt of much black-advancement advocacy.
I’m for affirmative action, but the limitations imposed by its tilt in favor of the middle and upper class sectors of minority communities needs to be on our radar screens. One of the things I do in the book is put all the arguments out there. I have my position, but I wanted to write a book in which all the arguments would be on the table so we could wrestle with them all, including the left critique of affirmative action.
AG: Let’s talk first about the right critique that most people know: that the constitution is colorblind. You take issue with that from a number of different angles.
Like any policy, affirmative action can be administered in a stupid, ineffective, and even destructive way. Do I think that that probably happens some of the time? Sure. Is it pervasive? No.
RK: The equal protection clause of the Fourteenth Amendment does not say anything about colorblindness. It says that the states are prohibited from denying to anyone “the equal protection of the laws.” What does that mean? It should be understood as meaning that no state, no government, can invidiously discriminate against anyone. I am against any policy or decision that seeks, on racial grounds, to subordinate anyone—including, of course, whites. But that is not what affirmative action—positive discrimination—is up to. Affirmative action, as characteristically designed and practiced in modern America, is intended to advance the fortunes of designated groups—blacks from the outset and always primarily, Latinos more recently and increasingly. It is aimed at helping them for the purpose of rectifying past mistreatment that continues to impose debilitating effects today. It is aimed at showing convincingly that the major institutions of American life are truly open to all. It is aimed at countering the invisible wind of invidious racial discrimination that continues to impede racial minorities. It is aimed at facilitating diversity within key institutions so that participants will reap the benefits of learning from others with different experiences and perspectives than themselves.
AG: Let’s talk about an argument that has gained currency in the last couple of years: the mismatch theory, or the idea that affirmative action actually hurts its intended beneficiaries because it places minority students with lower grades and test scores in colleges that are too difficult for them. The claim is that they are set up for failure, put into places where they fare far less well than they would have at less prestigious, but more suitable institutions and that, in fact, their drop-out rate increases dramatically because of affirmative action. This argument has been talked about in the press; Clarence Thomas cited it in Fisher v. University of Texas at Austin. What do you make of it both from an empirical standpoint, and on the merits of that argument in light of your cost-benefit analysis?
RK: The mismatch theory has been around for a long time. The anti–affirmative action crusader Thomas Sowell was propounding it decades ago. Nowadays the leading proponent of that theory is Professor Richard Sander of the UCLA School of Law. He and co-author Stuart Taylor have recently published a book for general readers that summarizes scholarly commentary that Sander has been producing over the past few years. I haven’t done an independent study of the matter. The literature surrounding it is complicated and contentious. Some people whom I respect claim that Sander’s assertions are bogus. I think that he has a point, that he has exaggerated it, and that he underestimates the good that affirmative action has accomplished.
There are millions of poor whites in need of all sorts of assistance. Our society should provide that assistance—in addition to continuing racial affirmative action.
Do I think that there are affirmative action programs that over-promote people, putting them in positions where they’re going to fail? Sure I think that happens. Like any policy, affirmative action can be administered in a stupid, ineffective, and even destructive way. Do I think that that probably happens some of the time? Sure. But is that problem as pervasive as he claims? No.
The biggest splash that Sander has made derives from his claim that absent affirmative action, the number of practicing black attorneys would actually increase. Various scholars have disputed the accuracy of this claim. But even if it is accurate, it does not end the conversation. Thus far Sander has failed to address those who would argue that, as a matter of group advancement, representation in the most elite law schools is worth sacrificing a certain number of prospective attorneys at the lower end of the professional ladder. I can imagine someone saying, You know, affirmative action is not about individuals really, it’s not about the number of black lawyers. It’s really about advancing the interests of communities. And I can imagine someone saying, Sander, even if everything you say is true, there’s still an argument that you haven’t taken into account: that it advances the interests the of the black community to have elite lawyers in their ranks. I think that many blacks upon reflection would choose to continue affirmative action even if it did have many of the costs that Sander highlights because they value the radiating influence of people like Barack Obama (Harvard Law School), Eric Holder (Columbia Law School), Michelle Obama (Harvard Law School), Ken Chenault (CEO of American Express, Harvard Law School), Kenneth Frazier (CEO of Merck, Harvard Law School), etc., etc., etc.
With respect to Professor Sander’s mismatch theory, my camp, the pro-affirmative action crowd, has demonstrated a tendency to get spooked too easily. To get unduly defensive. There’s a tendency when you feel besieged to want to respond to all criticism with No, no no no no no . . . I say relax. Sander might have a point. If he does, well, we should be willing to recalibrate affirmative action in particular instances.
AG: I want to go back to the Clarence Thomas argument that affirmative action helps elites. You didn't really touch on the implication that middle-class and upper-class blacks are somehow undeserving of affirmative action, as though they are immune from experiencing racism or the lingering effects of racism in American life.
My camp, the pro-affirmative action crowd, has demonstrated a tendency to get spooked too easily. To get unduly defensive. I say relax.
RK: Many people are hung up on the idea of well-off blacks receiving an affirmative action windfall. You’ll recall that when Obama was campaigning for 2008 election, somebody asked him whether his daughters ought to be eligible for affirmative action. He said something like, Well, my daughters have had it good, so they probably don't warrant affirmative action. He was wrong. It’s not about just desserts for his daughters, or my kids, or me, or you. That's not what affirmative action, properly construed, should be about. The question is, What sort of policy do we use to advance the cause of racial justice in the United States? Will this policy advance the ends of social justice? If Obama’s daughters can be used to advance the ends of social justice, they ought to be used for that purpose.
Furthermore, as you suggested, even affluent African Americans still face the invisible wind of anti-black invidious racial discrimination. Even a black president faces that stubborn impediment. It’s about social justice, and I think that this idea—“do people deserve it?”—has drawn people down the wrong avenue.
AG: Some people bring up the question of how to think about the prototypical poor white student from a rural area, say rural Appalachia, who might be in need of some of the same types of structural benefits. How do we craft affirmative action programs that are responsive to class barriers?
RK: I’m all for helping the proverbial poor white kid from Appalachia. I’m all for that. America confronts a huge problem of class inequity. There are millions of poor whites in need of all sorts of assistance. Our society should provide that assistance—in addition to continuing racial affirmative action. Some opponents of affirmative action focus on the fact of its class tilt—its assistance to the socio-economic upper half of racial minority communities. This class tilt is especially evident in the struggle over affirmative action in higher education. After all, if you are a plausible candidate for admission to a selective public university or college, you are already doing pretty well. You are certainly doing better than the mass of minority youngsters who fail to complete high school or, if they do finish high school, emerge nonetheless as functional illiterates.
The diversity argument for affirmative action marks the first time in American life in which being colored is viewed as a positive good.
Many people—not all, but many—who are against racial affirmative action point to the poor white kid from Appalachia and say, “What about him?” The only time that they point to that poor white kid from Appalachia is when they're attacking racial affirmative action. That’s the only time. All the other hours of the week they are not thinking about that poor white kid. I must say, it’s at that point, that I really do get angry. It’s a point that’s purely strategic. They act like they’re egalitarian; they’ve become socialist for the ten minutes that they are using that argument to attack racial affirmative action. Outside of that, they are purely in favor of the status quo.
As for my friends on the left who criticize affirmative action out of an authentic concern that it is helping those less in need of help than others, and that it is occupying too much scarce energy among progressives, to them I say this: don’t attack racial affirmative action behind a pipe dream. If you’ve got something that will get more resources to people generally who need them, I’ll be with you. But don’t use a purely theoretical argument that has no political momentum behind it to attack a policy—racial affirmative action—that is doing something real on the ground to reform American institutional life in a positive, albeit modest, fashion. True, affirmative action is not revolutionary. And it’s deficient in various ways. But at least it’s something. We always have to ask ourselves: compared to what? I’ll take affirmative action, for all its deficiencies, over nothing.
AG: Should we use ideological diversity and affirmative action in the same sentence? Conservatives often bring up the argument that conservatives, evangelicals, etc. are underrepresented on college campuses.
RK: They do, and as far as I’m concerned if they say to me, I’m down with racial diversity, but I also want ideological diversity, I’d say, “I’m okay with that. The diversity rationale was not what was animating affirmative action in the late ’60s and early ’70s, and I don’t think it is what is primarily animating many affirmative action advocates now. I used to view the diversity rationale with disdain. I don’t anymore. I think the diversity argument, on its own, is a legitimate argument for affirmative action and there are aspects to it which I think are actually quite brilliant. For one thing, under “diversity,” anyone is potentially eligible as a direct beneficiary—whites, males, Republicans, conservatives, etc. The white youngster who wants to attend a historically black college can argue that admitting him will enhance racial diversity on that campus. Diversity embraces everyone.
There’s another thing about the diversity rationale that has received insufficient attention. The diversity argument for affirmative action marks the first time in American life in which being colored is viewed as a positive good. All the other arguments—reparations, integration, legitimation—frankly resonate more with me. But I do like it that under the diversity rationale, racial minorities are brought to the table because they are thought to offer something positive to the community.
AG: You talk about reparations, which you call rectification in your book, and you said that that’s a much more convincing argument. Why? And I guess that raises questions about current discrimination.
RK: A central theme of my book is that people who favor affirmative action ought not allow ideological opponents to prevent them from bringing all of their arguments to the table. With respect to affirmative action in higher education, for instance, the Supreme Court of the United States has limited the discussion to diversity only. If you don’t talk diversity talk, the Court’s majority doesn’t want to hear it. Forget that! Let’s talk diversity but let’s say it over and over and over again that that’s not all we want to talk about. You know, in the latest Supreme Court affirmative action decision, Fisher v. University of Texas at Austin, the majority opinion never even cites Sweatt v. Painter! My god, they never cite Sweatt vs. Painter! In Sweatt, a black man applies to be a student at the University of Texas Law School. The authorities reject him solely because he is black. The dean says, You’re qualified, you’re a good student, but you’re black so you’re ineligible. The Supreme Court in 1950 orders that he be admitted to the all-white University of Texas Law School. It says that Texas could exclude him on racial grounds if the state could offer to him a separate but equal law school for blacks. But since the state had no equal law school for blacks at hand, Sweatt was entitled to attend the white one. Well that key and highly suggestive case is not even cited by the Supreme Court of the United States in the year 2013. Why? Because that bit of history has been rendered irrelevant by the Supreme Court. We ought not allow it to do that.
You need social scientists to marshal arguments; you also need people in positions of authority to hear the arguments.
There is an array of good arguments in favor of affirmative action. Rectification, compensatory justice, reparations—whatever you want to call it—is one of them. Now, however, some people are scared to raise the argument because the Supreme Court rejected it. Well, you know, things change. Maybe we'll have some new people on the Supreme Court who will be more attentive to that argument. It’s not the only argument, and it should not be the only argument. I don’t want to put all of my eggs in the reparations basket. I think that would be wrong. For one thing it doesn't cover everyone. It certainly helps with African Americans. It doesn't help with people who have come to the United States in the past thirty years. Am I for affirmative action for those people? Yes! On some of these other grounds. But I don't want us to be embarrassed to raise the reparations argument.
AG: Do you see a difference between affirmative action as reparations and, say, the monetary reparations movement?
RK: They’re different sorts of reparations. And it’s a funny thing, some people don’t view affirmative action as a type of reparations. I suppose it depends on how it is framed. Frankly, there is good reason, as far as public universities are concerned, not to have affirmative action as a type of reparations. The Supreme Court would say, Absolutely not! So, it’s framed as diversity. Okay. Fine. The Supreme Court has said that unless we have legislative or judicial bindings that this University itself discriminated against black people, the idea of making amends for the past is illicit. They call that mere “societal discrimination,” and mere societal discrimination is no proper basis for affirmative action. I think that’s hooey, I think that’s wrong, but that is the state of the law.
AG: It is interesting to me that you are quite favorable towards Bill Clinton’s stance on affirmative action in the 1990s. As a political scientist who studies African American politics, I know that there were a lot of people who were actually very critical of that. They saw his “mend it, don’t end it” policy as a form of triangulation that was at the expense of African Americans.
Sure, Clinton engaged in tokenism. But at least it was robust tokenism. I’ll take robust tokenism over nothing.
RK: Bill Clinton remains to this day the only president of the United States who has devoted a major speech to defending affirmative action. In it he offered an argument that has gotten short shrift. People ought to pay more attention to it. Clinton contended that racial discrimination remains a powerful force in American life. Some of it’s unconscious, but we know it’s out there. It’s an invisible wind. You don’t see it, but it’s there. There are now many studies that show how people respond differently, more cautiously, to a résumé coming from “Jamal” as opposed to a resume coming from “Charles.” The résumés say exactly the same thing. But made to look racially different, the résumés get very different responses. Careful studies reveal the same dynamic of racially disparate treatment across the domains of American social life—from housing to the administration of criminal justice to internet dating, etc., etc., etc. Bill Clinton cited ongoing discrimination against blacks as a justification for discrimination for them. I applaud him for taking that position. Sure, Clinton engaged in tokenism. But at least it was robust tokenism. I’ll take robust tokenism over nothing. I’m not uncritical of Bill Clinton, but with respect to affirmative action I think he deserves considerable credit.
AG: Is there a way to marshal the social scientific evidence that we know of—so audit studies, implicit attitude tests, all of these things—to actually prove the point that people do this, and so even if they’re not consciously doing it, it’s affecting their decision making, it’s too widespread to deny?
The Supreme Court is simply out to lunch when it comes to understanding and suitably addressing the realities of the day.
RK: I’m all for social scientists doing and publicizing studies. Yes, those arguments need to be marshaled. But you need two to tango. You need an argument but you also need somebody to hear the argument. If Thurgood Marshall and company had made the argument in 1900 that they made in 1954 in Brown v. Board of Education, would there have been justices willing to listen and be convinced? The answer: no. So, you need social scientists to marshal arguments; you also need people in positions of authority to hear the arguments. We need both of those things. Both are central. I think that social scientists have made those arguments—they need to continue to make them—but it’s not a lack of evidence that lands us in the position where we are today. Rather, it’s decision makers, and the Supreme Court, which is simply out to lunch when it comes to understanding and suitably addressing the realities of the day. I mean we hear the Chief Justice of the Supreme Court taunting a lawyer with the question, Are you telling me that, as a general matter, white people in the Deep South are more prejudiced against blacks than white people other places? The lawyer was too intimidated to give what should have been the obvious answer. The obvious answer is yes! Are you kidding? Are you telling me that the white people of the former confederacy are no different than white people other places? Not each and every one, of course. But do we see patterns that still distinctively mark the relations in the Deep South? Yes. But the lawyer ran away from what should have been the obvious answer.
Do we still live in a pigmentocracy? Yes, absolutely. It’s still the case that, the darker you are, the more you’re typically going to get the shorter end of the stick in a lot of different areas of American life. In the age of Obama that is still true. Do we need people to make the argument? Yes. But we also need people who are at least going to be willing to entertain the argument, and unfortunately we have people in positions of authority who are not going to entertain the argument.
AG: A few more questions. One, in your book you were talking prospectively about Fisher v. University of Texas at Austin. So can you react to the actual decision?
RK: In Fisher the Supreme Court reviewed a judgment by a court of appeals that had affirmed a racial affirmative action program at the University of Texas. A white woman who had been denied admission claimed that that program, by lessening the chances for admission by white applicants like herself, engaged in reverse discrimination. The Court of Appeals upheld the challenged program, concluding that it fit within the parameters dictated by Supreme Court precedent. The Supreme Court ruled that the Court of Appeals misapplied the pertinent precedents by failing to examine the university’s program with sufficient rigor and skepticism. The Court remanded the case to the Court of Appeals for a second, more searching look. I had thought that the Supreme Court would invalidate the University of Texas program. It still might.
AG: What do you think is going to happen down the road?
RK: That depends in large part on the composition of the Supreme Court. If Justices Antonin Scalia and Thomas leave the Court and are replaced by jurists nominated by President Obama, affirmative action as practiced today will survive. On the other hand, if no personnel changes occur over the next few years and then Obama is replaced by a Republican president who elevates conservative jurists who take the places of, say, Ruth Bader Ginsburg and Stephen Breyer, then affirmative action and much else will be put in grave jeopardy.
AG: In Grutter v. Bollinger, Justice Sandra Day O’Connor adds a sunset clause in her opinion suggesting that in 25 years from 2003 affirmative action will probably no longer be needed. You suggest in the book that that wasn't controlling. Could you explain that and then actually talk about the conditions that have to be present for affirmative action to be obsolete?
RK: Justice O’Connor’s remark about a twenty-five-year horizon was a stray comment that was not a key part of the Court’s holding. Still, she posed a question that many people ask: when will racial affirmative action be obsolete? I’m resistant to setting forth a formula for closure.
AG: When people ask me how long we’ll need affirmative action, I talk about statistics: when a child born today, regardless of his or her color, has the exact same life chances as everybody else controlling for class.
RK: I like that! Yes, affirmative action will be absolute when one can look at two newborns, one white and one black, and say accurately that race will likely play no appreciable role in their trajectories. When one can confidently make such predictions we will no longer be in need of racial affirmative action. Unfortunately, that is a long way off.
AG: Well thank you very much for a provocative book, I think you made me rethink my lectures on blacks in the judicial system. Thank you very much.
RK: Thank you very much.
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October 09, 2013
22 Min read time