Race, Affirmative Action, and the Law

by Randall Kennedy

  bThis is not an attempt to preemptively label as racist all opposition to racial affirmative action. Opponents include people who have been demonstrably anti-racist in attitude and action. (See, e.g., Charles Fried, Nat Hentoff, Richard Kahlenberg, Michael Lind, John McWhorter.) I do mean to show, however, that racism has long been among the variety of motivations behind antagonism to policies deemed to constitute “racial favoritism” or “reverse discrimination” on behalf of colored folk. This is a fact that all participants in the debate should face.

  cSimilarly, Senator John C. Calhoun warned that if abolitionists succeeded in emancipating the slaves, “the next step would be to raise the negroes to a social and political equality with whites; and that being effected, we would soon find the present condition of the two races reversed. [Blacks] and their northern allies would be masters, and [white southerners] the slaves.” Speech on the Reception of Abolition Petitions, February 6, 1837.

  d“So bizarre would discrimination against whites in admission to institutions of higher learning have seemed to the framers of the Fourteenth Amendment that we can be confident that they did not consciously seek to erect a constitutional barrier against such discrimination.” Richard Posner, “The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities,” Supreme Court Review (1974): 1, 21–22. “The notion … that ‘[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States’ is simply an anachronism—an attribution to the framers of the amendment of views that did not achieve currency until much later.” Terrence Sandalow, “Racial Preferences in Higher Education: Political Responsibility and the Judicial Role,” University of Chicago Law Review 42 (1974): 653, 664.

  eWilliam Hastie was an attorney, law professor, civil rights advocate, and dean of the Howard University School of Law. In 1937, President Franklin Roosevelt put Hastie on the United States District Court of the Virgin Islands—a black first. In 1949, President Harry Truman put him on the United States Court of Appeals for the Third Circuit—another black first. See Gilbert Ware, William Hastie: Grace Under Pressure (1985).

  fAddressing the issue again, Young declared in words pertinent today, “The basic issue here is one of simply logic and fairness. The scales of justice have been heavily weighted against the Negro for over three hundred years and will not suddenly in 1964 balance themselves by applying equal weights. In this sense, the Negro is educationally and economically malnourished and anemic. It is not ‘preferential treatment’ but simple decency to provide him for a brief period with special vitamins, additional food, and blood transfusions.” To Be Equal (1964), 25.

  gIt is particularly important to quote King on this point since he is constantly cited by opponents of racial affirmative action as if he would have unequivocally backed their position in the debate. During the campaign to pass Proposition 209, the state constitutional initiative that largely prohibits affirmative action in California, supporters broadcast advertisements suggesting that the civil rights icon would have embraced the measure. Those ads were quickly rescinded in the face of furious opposition from Coretta Scott King and other activists. See Edward W. Lempinen and Robert B. Gunnison, “King Ad for Prop 209 on Hold / State GOP Halts TV Campaign after Protest Erupts,” San Francisco Chronicle, October 24, 1996.

  h“Whenever the issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask for nothing more. On the surface this appears reasonable, but it is not realistic. For it is obvious that if a man is entering the starting line in a race three hundred years after another man, the first would have to perform some impossible feat in order to catch up with his fellow runner.” Martin Luther King, Jr., Why We Can’t Wait (1964), 134.

  iBayard Rustin, a lifelong socialist and pacifist, was also a civil rights activist who organized the landmark March on Washington for Jobs and Freedom, in August 1963. See John D’Emilio, Lost Prophet: The Life and Times of Bayard Rustin (2004).

  jRustin, for instance, maintained that “any preferential approach postulated on racial, ethnic, religious or sexual lines will only disrupt a multicultural society and lead to a backlash.” According to him, “special treatment” can suitably be provided only to those who have been exploited or denied opportunities if solutions are predicated on class lines, precisely because all religious, ethnic, and racial groups have a depressed class who would benefit.” Quoted in Richard Kahlenberg, The Remedy: Class, Race, and Affirmative Action 15 (1997).

  kPresident Kennedy’s remark that it would be a mistake “to begin” to assign quotas is noteworthy. It reflects a common misimpression that racial politics “begin” only when those who have been marginalized make demands for equitable treatment. When Kennedy spoke, quotas had long existed that permitted white men to monopolize almost entirely the upper ranks of government, business, academia, the Fourth Estate, and other key domains. When Kennedy spoke, the white male quota for cabinet officials and Supreme Court justices was complete and unbroken. Yet it was only when facing protests against this form of monopolization that Kennedy was moved to deplore quotas in general.

  lAs early as 1964, an investigation by the Association of American Law Schools (AALS) was reporting, “Several institutions have either made efforts to recruit well qualified Negro students or have given consideration to the possibility of adjusting admission standards to accommodate the few Negro applicants whose records approach acceptability.” (Benjamin F. Boyer, et al., “Report of the Committee on Racial Discrimination: Problems of Negro Applicants,” 1964 Association of American Law Schools Proc. Part One 195, 160–161.) In 1965, the Emory University School of Law offered a summer program for black students under which any participant completing the program won a seat in the first-year class. (Richard A. Sanders, “A Systematic Analysis of Affirmative Action in American Law Schools,” Stanford Law Review 57 [2004]: 367, 378 n. 29). These episodes, however, were mere straws in the wind, precursors of an affirmative action regime that had yet to emerge.

  m“We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, ‘Wait.’ But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society … when you are forever fighting a degenerating sense of ‘nobodiness’—then you will understand why we find it difficult to wait.” Martin Luther King, Jr., “Letter from a Birmingham Jail” (1963).

  nAt another point in its report, the commission declared, “The vital needs of the nation must be met; hard choices must be made, and, if necessary, new taxes enacted.” For programs of reconstruction “will require unprecedented levels of funding and performance.…There can be no higher priority for national action and no higher claim on the nation’s conscience.”

  o“The Realpolitik argument is that preferential treatment of blacks and other militant minorities is the price the white majority must pay for avoiding the sort of unrest and violence of which the race riots of the 1960s were arguably just the portents.…Although university administrators publicly justify their preferential admissions policies in terms of increasing diversity, rectifying historical injustice and the like, in private they often will admit that appeasing student militancy was the dominant factor in the adoption of the policies.” Richard Posner, “The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities,” Supreme Court Review (1974): 1, 21.


  pIn 1976, the Republican Party platform stated that while “there must be vigorous enforcement of laws to assure equal treatment … the way to end discrimination … is not by resurrecting the much discredited quota system and attempting to cloak it in an aura of new respectability.” (By contrast, the Democratic Party platform reaffirmed a “commitment to … affirmative action.”) In 1996, the Republican platform announced its endorsement of the Dole-Canady Equal Opportunity Act, “to end discrimination [i.e., affirmative action] by the federal government,” and Proposition 209, the California Civil Rights Initiative, “to restore to law the original meaning of civil rights.” (The Democratic platform, on the other hand, asserted that “when it comes to affirmative action, we should mend it, not end it.”) In 2008, the Republican platform declared that “precisely because we oppose discrimination, we reject preferences, quotas, and set-asides.” (By contrast, the Democratic platform stated: “We support affirmative action … to make sure that those locked out of the doors of opportunity will be able to walk through those doors in the future.”) In its 2012 platform, the Republican Party stated: “We reject preferences, quotas, and set-asides as the best or sole methods through which fairness can be achieved.” (By contrast, the Democratic platform declared: “We support affirmative action to redress discrimination and to achieve the diversity from which all Americans benefit.”)

  qPowell’s description of the role model theory is tendentious. The theory’s champions were not saying that black pupils “are better off with black teachers.” Rather, they were saying that black pupils are better off in schools in which there are at least a nontrivial number of black teachers. Furthermore, there was no good reason to limit the discussion of the pedagogical usefulness of minority teachers only to minority students; many people sensibly contend that nonminority students also benefit from minority teachers as role models. “In the context of public education,” Justice Stevens observed, “it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty. For one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural, and national backgrounds that have been brought together in our famous ‘melting pot’ do not identify essentially differences among the human beings that inhabit our land. It is one thing for a white child to be taught by a white teacher that color, like beauty, is only ‘skin deep’; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.” Wygant v. Jackson Board of Education, 476 U.S. 267, 315 (1986) (Stevens, J., dissenting).

  rThese statements, of course, are potentially reconcilable, depending on what one means by “discrimination.” They conflict if “racial discrimination” is taken to mean a situation in which a decision maker, for racial reasons, selects one competitor over another. The statements are consistent, however, if “discrimination” is defined more broadly to embrace the circumstances that facilitate or stunt the growth of competitors. Councilman Marsh could have been saying that racial discrimination in Richmond and elsewhere had been so pervasive and effective that it had thwarted the rise of black construction entrepreneurs, making them unavailable. They had been so marginalized that they did not even make it to the bidding.

  sThe justices appointed by Reagan were joined by Justices Byron White (nominated by President John F. Kennedy) and John Paul Stevens (nominated by President Gerald R. Ford.)

  tLater, in Advanced Constructors v. Pena, 515 U.S. 200 (1995), the Supreme Court abandoned this dual standard, implicitly eschewing Fullilove.

  u“We hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand Constructors v. Peña, 515 U.S. 200, 227 (1995).

  vAccording to one account, between 1977 and 1985, only fifteen employers lost federal contracts on account of violating Executive Order 11246. See Raymond Wolters, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights (1996), 269.

  wSee Veto S. 2104: Message from the President of the United States, S. Doc. No. 35, 101st Cong., 2d Sess. 2 (1990). The Senate failed by one vote to override the veto. See 136 Cong. Rec. S16, 589 (daily ed. October 24, 1990).

  xGovernor Pete Wilson named Ward Connerly to the University of California Board of Regents in 1993. It was from that platform that Connerly began his crusade against affirmative action. Wilson likely named Connerly for several reasons. They were friends. Wilson liked Connerly’s political views, especially his detestation of affirmative action. Appointing Connerly also enabled Wilson, ironically, to blunt the criticisms of those who complained that the board lacked diversity. A 1974 revision of the state constitution required the Board of Regents to reflect the state’s “economic, cultural, and societal diversity … including minorities and women.” See Andrea Guerrero, Silence at Boalt Hall: The Dismantling of Affirmative Action (2002), 70.

  yYet another wrinkle involves the legal status of anti–affirmative action voter initiatives. The validity of some of these initiatives has been challenged under the federal Constitution. Opponents contend that they violate the Equal Protection Clause of the Fourteenth Amendment by changing the rules of governance in a fashion that places an unfair burden on the ability of minority groups to win beneficial legislation. The United States Court of Appeals for the Ninth Circuit rebuffed this objection to Proposition 209 in California. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (CA 9 1997). On the other hand, the United States Court of Appeals for the Sixth Circuit sided with opponents in striking down the anti–affirmative action amendment to the Michigan constitution. See Coalition to Defend Affirmative Action, et al. v. Regents of the University of Michigan, et al. (CA 6 2012). On March 13, 2013, the Supreme Court announced that it would review the Sixth Circuit’s handling of this issue. See Schuette v. Coalition to Defend Affirmative Action.

  zFor discussion of these cases—Grutter v. Bollinger and Gratz v. Bollinger—see this page.

  2.

  The Affirmative Action Policy Debate

  The Key Arguments Pro and Con

  The case for racial affirmative action consists of a body of arguments in which the whole is greater than the sum of its parts. The most important of these arguments are that affirmative action is justified as a means of (1) seeking reparatory justice, (2) creating “diversity,” (3) facilitating “integration,” and (4) countering ongoing racial prejudice. In this chapter, I unpack these arguments, set forth the best criticisms of them, and offer responses to those objections. I then discuss additional arguments against affirmative action, most notably claims that it hurts its intended beneficiaries. I conclude that, on balance, racial affirmative action as typically designed and administered does indeed help racial minorities—those assisted directly and those benefited indirectly—and that it helps America as a whole with its ongoing struggle to redress long-standing injustices and to knit together a deeply divided society.

  AFFIRMATIVE ACTION FOR REPARATIONS

  Making amends for the cruel, debilitating, racially motivated wrongs imposed upon racial minorities, particularly blacks, over a long period is the single most compelling justification for racial affirmative action. This rationale is often obscured now for strategic reasons; the Supreme Court has responded to it with skepticism and hostility. But however labeled, and whether acknowledged or not, the quest for reparations was and remains an important aim of many who champion affirmative action.1

  The predicate for affirmative action as reparations is a history of racial wrongdoing in which people of color have been singled out for mistreatment on a racial basis. The paradigmatic case is the mistreatment of blacks. Before the Civil War, the United States of Ame
rica permitted its constituent states to legalize racial slavery, protected slave trading and slaveholding, allowed local governments to discriminate invidiously against people of color, and contributed to creating a thoroughgoing racial hierarchy in which whiteness was privileged and coloredness subordinated. After the Civil War—despite the statutory and constitutional enactments of Reconstruction—the United States continued to permit peoples of color to be routinely stigmatized, exploited, intimidated, disenfranchised, and terrorized by private parties and public authorities.

  Why attempt to redress past wrongs? Justice demands such an effort. An essential element of justice is righting wrongs to the extent reasonable under the circumstances obtaining. Moreover, as Professor Kim Forde-Mazrui declares, “failures to redress adequately conditions that predictably perpetuate, and often worsen, the effects of past racial injustices, are recurring wrongs that create new remedial obligations.”2

  The reparations theory of affirmative action is known by various labels, including rectification, restitution, remediation, correction, and compensation. Key to this theory is the idea of making amends for past wrongs that, so long as they are unaddressed, become, sadly, refreshed wrongs. This theory goes beyond claiming that compensation is due for discrete acts of mistreatment as determined by authoritative organs of state power. Compensation for what courts call “identified discrimination” is relatively uncontroversial. By contrast, reparatory affirmative action for “societal discrimination”—the condition of racial subordination—is intensely controversial. Indeed, that justification for affirmative action has largely been rejected by courts.

  Some proponents of affirmative action as reparations prefer it to other models because the reparations model is a claim to simple justice, an argument that beneficiaries are entitled to their recovery. They see this theory as morally superior, less amenable to compromise, and more focused on the fate of colored beneficiaries than competing models.3