Affirming Affirmative Action

Randall Kennedy’s Approach to Ending Racial Disparities

by Allison Schottenstein

10 January 2014

With the outcome of Fisher v. University of Texas pending, the question of Affirmative Action looms over us. What is the future?
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For Discrimination: Race, Affirmative Action, and the Law

Randall Kennedy

US: Sep 2013

Can America mend its past through affirmative action? Harvard Law Professor Randall Kennedy’s For Discrimination: Race, Affirmative Action, and the Law takes on the challenge of addressing this controversial topic. He focuses his discussion through three lenses: personal, historical, and legal.

Kennedy’s decision to write this book comes in the wake of the most recent affirmative action dispute, Fisher v. University of Texas, which challenged UT Austin’s affirmative action program. Kennedy argues that continuing the practice of affirmative action is in the interest of American society at large. But the book does not simply present Kennedy’s view. It 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 the United States, and is now ready to testify in court.

Kennedy brings us into the discussion of affirmative action through a personal narrative of his experience of segregation. Though Kennedy grew up in the North, he was born in Columbia, South Carolina. He describes the experience of his family and others leaving the South in terms that evoke the experience of refugees from a war-torn land: “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” (3). Kennedy did not have to endure a daily life of separate schools, bathrooms, and restaurants, but he states that America’s racism was not limited to one part of the United States (4). It is for this reason that action was required throughout the country.

Kennedy benefitted from affirmative action throughout his education, from St. Albans School for Boys to Princeton University and finally to Yale Law School (5). However, he states that his advocacy for affirmative action is not ultimately a personal matter: “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” (11).

Moving from the personal to the historical point of view, Kennedy argues that affirmative action “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” (11). He views Affirmative action as a means to transform America after centuries of oppression of African-Americans and other groups. This system offers to help put America on the path to morality, help to integrate groups that have been discriminated against in America, and enhance the atmosphere of universities and the workplace by providing more diversity (12). Kennedy concedes that affirmative action is not perfect; it creates resentment amongst whites and does not always help those who have directly suffered due to America’s injustices (i.e., slavery and Jim Crow). Yet in spite of these problems, Kennedy remains steadfast in his belief that affirmative action is necessary.

Kennedy notes that affirmative action does not have a stable definition, either in the law or among institutions and workplaces. For the purpose of his book, he defines affirmative action policies as “policies that offer individuals deemed to be affiliated with a beneficiary group a preference over others in competitions for employment, education, or other valued resources” (20).

These policies did not develop overnight. Kennedy provides an overview of their history, beginning with the Fourteenth Amendment to the Constitution. The Fourteenth Amendment, which passed in 1868, mandated that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” On the surface it would appear that this amendment is color-blind. However, Kennedy argues that “overwhelming evidence indicates that the framers of the Fourteenth Amendment did not intend to create a color-blind Constitution” (26), since the amendment was designed specifically to help grant citizenship to African-Americans. This undermines the argument that race-based decisions for the purpose of affirmative action are unconstitutional.

From there, Kennedy provides a detailed look at the “anti-discrimination laws” established from Franklin D. Roosevelt to Obama that helped minorities, more specifically, African-Americans, gain opportunities equal to those of whites in America. This historical overview allows him to contextualize the last two prominent affirmative action cases, both of which took place at University of Texas at Austin: Hopwood v. Texas (1995) and Fisher v. University of Texas (2012).

In Hopwood v. Texas, the “court essentially banned the use of race in admission in public higher education in the states it covered. This constituted a direct repudiation of Justice Powell’s landmark Bakke decision” (74), which allowed universities to consider race in selecting students, within certain constraints. Hopwood dramatically changed the University of Texas at Austin’s policy on admission. In response, the “Texas legislature, disturbed by the prospect of a dramatic downturn in Latino and black students in the state’s flagship university, enacted a measure under which the top 10 percent of graduating students at any high school gained automatic admission to the state’s public university system” (74).

The University of Texas at Austin also began to enact a “race-plus affirmative action program” (76), which incorporated race as a positive factor in admissions (223-224). The latter was contested in Fisher, in which the plaintiff contended that it was unconstitutional to place value on race and that UT Austin did not have “race neutral” admissions (77). This comprehensive historical overview is perhaps the most beneficial part of the book, as it familiarizes the reader with the difficulties the court has faced in dealing with affirmative action policies. With the history established, the reader begins to wonder how we can go about changing the future when the issue of race has had such a long and fraught history.

Kennedy next addresses the legal debates that have impacted affirmative action over time. He analyzes three main arguments in favor of affirmative action: “(1) seeking reparatory justice, (2) creating ‘diversity,’ (3) facilitating ‘integration,’ and (4) countering ongoing prejudice” (78). He also offers an in-depth discussion of critiques of affirmative action from the left, such as the arguments that the system does not benefit those who are truly disadvantaged, that it harms some who are meant to benefit from it, and that it carries a stigma (115). Through this he is able to show a multi-dimensional aspect of affirmative action debate.

Kennedy advocates developing a plan for affirmative action, but he stresses that it must be a “sensible” one (145). Such a program would not set “beneficiaries” up to fail or to feel that they are the special students as opposed to the “regular” students. Ideally, affirmative action would begin at the primary and secondary educational levels, but since no such program currently exists, Kennedy does not treat this as a viable option. Instead, he argues for continued affirmative action at the university level. As he says simply, “I will take what I can get for the purpose of making amends for past injustice, taping into ‘diversity,’ countering ongoing prejudice, and accessing the benefits of integration.” (146). Even though affirmative action is not always done correctly, he strongly believes that it is better to sustain it than to have nothing (146).

Although some believe that the United States in the Obama age is a post-racial society, Kennedy challenges the idea of a colorblind system, arguing that focusing on colorblindness is not the best way to bring about racial equality. He identifies two groups of who desire a colorblind society: the gradualists, who maintain that we should strive to create such a society over time, and the immediatists, who want to create one sooner rather than later. Although he does not identify with either group, he concentrates on the immediatist point of view, which maintains that affirmative action is an outdated practice that impedes the creation of a colorblind society (148).

Kennedy traces the history of the concept of a colorblind society from Plessy v. Ferguson (1896), which upheld the “separate but equal” doctrine, to the Top Ten Percent Plan at UT Austin, which was challenged on the grounds that while it appeared to be colorblind, it was actually racially motivated (179). Kennedy argues that the concept of colorblindness has the potential to promote good, but it can also “cover up injustices” (180). For example, the Constitution makes no mention of race and therefore appears to be colorblind, but it still allowed for slavery and racially based discrimination. He observes that “only when race was expressly mentioned in the Revolutionary legislation and constitutional provisions of Reconstruction did the U.S. legal order challenge American pigmentocracy” (180).

Kennedy leaves us with the idea that if there is silence on racial matters there is room for prejudice, but if race is addressed openly, there is a possibility of change (181). Society must think in terms other than “colorblindness” in order to promote justice.

The most provocative section of the book addresses the legal cases surrounding affirmative action in higher education. The viewpoint expressed in the major affirmative action cases, he argues, “mirrors the thinking and sentiments of the nation’s governing elite” (183). He takes his reader through several significant Supreme Court affirmative action cases: Regents of the University of California v. Bakke (1978), the University of Michigan cases Grutter v. Bollinger and Gratz v. Bollinger (2003), and Fisher v. University of Texas (2012). The part of this chapter dealing with Fisher is the most insightful. Kennedy claims that the Top Ten Percent plan alone did not assist in bringing more minorities into the school; however, when the Supreme Court’s Grutter “superseded Hopwood, opening the door in Texas once again to using race explicitly as a plus in university admissions” (223), the UT administration walked through that door. In order to bring about diversity within the school, UT began to consider “race as a factor to be considered in making selections” (223). It was this new feature of UT’s policy that provoked the Fisher case.

Kennedy states that in the midst of all the arguments, the most poignant submissions to the court were the briefs from the Heman Sweatt family. Because Sweat was African-American, he was denied admission to the University of Texas at Austin Law School. His case laid the groundwork for the Supreme Court ruling against the separate but equal doctrine in the Brown v. Board of Education decision. The Sweatt family argued sixty-two years later that the Supreme Court should “uphold the affirmative action program under attack at UT.

Acknowledging that their relative had been commemorated at UT in a variety of ways…the Sweat family asserted that ‘it is [the university’s] commitment to creating a genuinely diverse student body—one based on a holistic review of applicants’ unique history and persona, not just their race—that best honors Herman Marion Sweatt’” (231). Kennedy’s inclusion of the Sweat family’s involvement is moving and shows the importance of progressing toward diversity rather than regressing. He concludes that whatever the ultimate decision in Fisher, the topic of affirmative action will continue to “reverberate” (239). Clearly, if the ruling is in Fisher’s favor, the minority students and faculty at UT Austin will be affected.

Kennedy’s last chapter leaves the reader wanting more. He does not offer many suggestions for improving affirmative action. The conclusion indicates that racism will continue to exist and that because of this affirmative action must not be discontinued. But we are left wondering: If Kennedy could change the system, what would he do? How can minority rights be protected so that cases like Fisher don’t perpetually threaten to put affirmative action on the chopping block? This book is important as it demonstrates that the American workplace and school system still have major problems representing everyone. Yet where we should go in the years to come remains unresolved. We cannot erase the past, but we can make every effort to make the future a different place.

See also Craig Lambert’s article “Black, White, and Many Shades of Gray”, Harvard Magazine, May-June 2013.

For Discrimination: Race, Affirmative Action, and the Law


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