Affirmative action is a “positive” form of discrimination, according to a new book written by University Trustee Randall Kennedy ’77 that was released by Pantheon Books this month. In “For Discrimination: Race, Affirmative Action and the Law,” Kennedy, a Harvard Law School professor, suggests that reverse discrimination — or discrimination in favor of minorities — could be an effective way to rectify past injustices against marginalized groups.
With the book, Kennedy joins the controversial public discourse surrounding the legal status of affirmative action. The topic was made even more contentious after the Department of Justice and Department of Education released guidelines on Sept. 27 supporting voluntary use of race in admissions decisions to ensure diversity in higher education. The guidelines were developed in response to the Supreme Court’s decision in its most recent affirmative action in education case, Fisher v. University of Texas (2008).
Kennedy could not be reached for comment by press time.
“The children, grandchildren and great-grandchildren of the immediate victims of segregation are indirect victims in that they have been demonstrably injured by the racial injustices visited upon their ancestors,” Kennedy writes in the book, explaining that the past wrongs committed by whites have had far-reaching and harmful consequences for the social status of the descendants of minority groups who were formerly subject to legal segregation.
He argues that affirmative action is the continuation of a democratic impulse in race relations that has been gaining in scope and momentum since the Civil War. Referring to proposed drafts of the 14th Amendment, he notes that its framers did not intend to create a color-blind Constitution; instead, they aimed at justice for newly-freed slaves.
Kennedy also writes critically about several court decisions against affirmative action, arguing that the justices in each case had not taken into account the historical mistreatment of minorities. He cites Regents of the University of California v. Bakke (1978), in which the Supreme Court decided that the use of racial quotas in admission decisions was unconstitutional, and the more recent Fisher case, in which a white female student sued the University of Texas at Austin, alleging that the university discriminated against her by rejecting her on the basis of her race.
Although the Fisher decision did not declare affirmative action unconstitutional, it explained that affirmative action programs need to pass “strict scrutiny” tests proving that race is truly the only means through which a given school can diversify its student body.
“For Discrimination” also acknowledges the arguments against affirmative action. Kennedy notes that although the initial beneficiaries of affirmative action were economically disadvantaged, the current beneficiaries of affirmative action are more privileged than their predecessors. Kennedy also explains that affirmative action sometimes causes people to view admissions decisions in terms of race, noting that he sometimes receives calls from law partners asking if his African-American students are highly qualified.
Furthermore, Kennedy writes about how affirmative action affected his own life, acknowledging that “racial considerations explain in part why I was honored ahead of others,” but adding, “I do not feel belittled by this. Nor am I wracked by angst or guilt or self-doubt.” Kennedy adds that he tries to maintain equanimity in assessing his record, knowing that his race has both helped him and hindered him. Kennedy notes, for example, that he believes affirmative action played a role in his admission to Princeton and other elite institutions that he attended.
Richard Kahlenberg, a senior fellow at the think tank The Century Foundation, said he was impressed by Kennedy’s honesty in writing about the affirmative action issue. “Many supporters of affirmative action tend to downplay the way that it works in practice,” Kahlenberg said. “He confronts directly the weaknesses of affirmative action, acknowledges them and nevertheless argues in support.”
However, Kahlenberg added that he was less impressed by Kennedy’s dismissal of class-based affirmative action, which, in Kahlenberg’s view, achieves the benefits of affirmative action without incurring the drawbacks.
Peter F. Lake, a professor at the Stetson University College of Law who researches issues of affirmative action, explained that he enjoyed reading “For Discrimination” because he was interested by the fact that the book was written by someone who came of age during the civil rights movement.
“So much civil rights writing has been oriented toward people who were part of the Freedom Riders movement,” Lake said. “I think there’s actually a unique perspective from someone who was relatively young at the time when separate-but-equal laws were still being enforced.”
Kennedy has been a professor at Harvard Law School since 1984 and in 1998 was inducted into both the American Academy of Arts and Sciences and the American Philosophical Society. After graduating from Princeton in 1977, he attended Yale Law School and won a Rhodes Scholarship before working as a law clerk for Thurgood Marshall.
Lake explained that the issue of affirmative action and Kennedy’s particular views will become even more relevant in light of the DOJ and DOE guidelines published in response to the Fisher decision.
“Randall Kennedy and Richard Kahlenberg have surely now staked out significant territory in the modern discussion of affirmative action,” he said.