Race, Affirmative Action, and the Law

by Randall Kennedy

  Some proponents of affirmative action have reached the same conclusion. “I am increasingly dismayed,” Professor Sanford Levinson reports, by “the costs to intellectual honesty of the felt need to shoehorn one’s arguments into the language of ‘diversity.’ ”44 Professor Samuel Issacharoff remarks facetiously that “in the endless discussions of diversity, I have never heard the term seriously engaged on behalf of a Republican, a fundamentalist Christian, or a Muslim.”45 In an article entitled “Why No Preferences for Fundamentalist Christians or for Neo-Nazis?” Professor Jed Rubenfeld argues that the diversity rationale is mainly a ruse used to justify decisions that are actually made—and better made—on alternative grounds. “Everyone knows,” Rubenfeld writes, “that in most cases a true diversity of perspectives and backgrounds is not really being pursued.”46

  I conclude this section with three observations about the debate over racial affirmative action for purposes of diversity. First, while there are some who invoke this rationale insincerely—I will turn to them in a moment—others genuinely believe what they say about diversity’s virtues. Among these are people who initially embraced diversity only strategically but then, eventually, with the benefit of observation, came to realize that, in at least certain settings, diversity does indeed enhance teaching, learning, and decision making. I include myself in this group. I remain doubtful about social scientific “proof” of diversity’s value; much of that seems exaggerated and pre-determined with litigation in mind. I am convinced, however, based on my own experience and the testimony of observers in whom I have confidence, that in at least certain settings learning is enriched by racial diversity. I have seen firsthand the intellectual deprivation suffered by white law students consigned to racially homogeneous classes. In the absence of black and Latino students, discussions regarding large swaths of law were obviously and painfully impoverished. Diversity, then, is a suitable justification for affirmative action so long as the demands and expectations imposed upon it are not too onerous. The diversity rationale is not as strong a justification as others that are propounded. But it is a valid justification nonetheless.

  Second, with respect to insincerity, a candid word needs to be said about the limits of candor. “We would be dishonest,” Guido Calabresi sagely declares, “if we failed to recognize that at times total candor is not desirable or desired by society.”47 No decision rendered by the United States Supreme Court is more honored than Brown v. Board of Education. The Brown decision, however, is far from candid. Its author, Chief Justice Earl Warren, carefully avoided identifying forthrightly the evil that de jure segregation represented.o Moreover, the decision was positively misleading to the extent that it suggested that the historical record is unclear regarding whether the overwhelming majority of those who designed and ratified the Fourteenth Amendment intended to prohibit de jure racial segregation.48 The Court found the historical record “inconclusive” not as a matter of scholarly accuracy but rather as a strategy aimed at easing the way to a ruling that would go far toward undermining a monstrous injustice.p A decade later, proponents of what became the Civil Rights Act of 1964 had to make a choice. On one hand they could state that the legislation they supported was primarily based on the Fourteenth Amendment’s grant of Congressional authority to enforce the Equal Protection Clause. On the other hand, they could assert that the legislation they supported was primarily based on the Interstate Commerce Clause. The former explanation was truer but riskier. The latter was evasive but safe. The principal backers of the legislation chose the latter route, which won acceptance when tested by litigation.q 49

  All of those episodes should be saddening to some extent in that they show well-intentioned people engaging in subterfuge out of a felt need to skirt volatile issues that are the legacy of racist misconduct. But one ought not denounce them. One ought, instead, denounce the circumstances that made candor unduly costly in terms of jeopardizing reforms that advance social justice.r The most regrettable feature of the diversity controversy is not the dissimulation of certain proponents but the profoundly mistaken Supreme Court jurisprudence that pushed outside the pale of legitimacy rationales for affirmative action that are at least as sound as the diversity rationale.

  Third, one ought be careful about charges of insincerity given the ambiguous and changing character of the diversity rationale itself. Although Justice Powell posited a definition of “diversity” that appeared to distinguish it from other, more familiar rationales, perhaps that distinction was more apparent than real. Perhaps Powellian “diversity” in some of its facets always implicitly included ideas that it otherwise seemed to abjure. If that is so, then some who have been tagged as dishonest were not really being duplicitous but simply seizing upon a new rhetoric that continued to allow them to pursue aims consonant with those validated by Justice Powell in Bakke and then the Supreme Court as a whole in Grutter. If Justice Powell truly “invited” disingenuousness as some detractors of his diversity rationale charge, then perhaps the response received should be seen not as fraud but complicity in a subtle diplomatic choreography in which the Court itself is playing a leading part. A notable feature of Powell’s Bakke opinion was its unspoken message. What it seemed to be saying to universities, Calabresi observed, was that “if you are not blatant, if you cause no scandal, if you let us reconcile what you are doing with grounds that can be acceptable to most, we will let you work out your own quiet compromise between our deeply held but irreconcilable ideals.”50 All that is lost by such an approach, Calabresi ventured, is candor.

  Furthermore, it bears noting that Justice Powell’s diversity rationale has been considerably broadened by the interpretation put upon it by Justice O’Connor in Grutter. To the extent that there was a difference between Powellian diversity and the actual (but muted) aims of administrators in the field, that difference has been substantially lessened by O’Connor’s capacious reformulation of diversity’s aims and justifications.

  AFFIRMATIVE ACTION FOR INTEGRATION

  Some proponents of affirmative action justify it primarily as a means of facilitating the racial integration of American society.51 They posit integration as a condition in which people of various races participate together equitably and harmoniously in all of the society’s major activities. They are willing to use race-conscious measures to effectuate that condition. They aim to ensure that the multiracial character of the population is reflected in all key institutions. They approve of using race-conscious measures to bring into play people affiliated with groups that have long been excluded. But they also approve of using race-conscious measures to bring into play people affiliated with groups that have not faced historical exclusion but find themselves marginalized nonetheless—e.g., recent immigrants.

  The sentiments animating champions of integrative affirmative action vary. Some are moved by a belief that fairness in a multiracial democracy requires the representative presence of all or at least many of the groups that make up society. This appears to be what President Clinton had in mind when he insisted that he wanted to appoint a cabinet that “looked like America.” The goal was not to mirror the demographics of the country according to some precise formula of proportionality; that would be impossible, given the number of available cabinet positions (twelve) and the number of racial and ethnic groupings in America (hundreds). Rather, the goal was largely symbolic: to make the cabinet sufficiently multiracial to signal to the public that the president was concerned about and open to the counsel of all Americans, including those affiliated with minority groups that have for various reasons found themselves isolated or marginalized. Attentiveness to this expressive function of integration and its hoped-for dividend—enhanced legitimation in the eyes of potentially disaffected onlookers—also showed up in the Supreme Court’s Grutter decision. While Justice O’Connor’s opinion for the Court is primarily a paean to diversity, it is secondarily an ode to integration, though she never uses the term. Elaborating on why racial affirmative action at the University of
Michigan Law School is constitutionally permissible, notwithstanding the Court’s heavy presumption against racial selectivity, O’Connor insisted that “effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”52

  AFFIRMATIVE ACTION AS A SUPPLEMENT TO ANTIDISCRIMINATION EFFORTS

  Affirmative action has been justified in some quarters as a supplement to antidiscrimination efforts. Local, state, and federal laws prohibit invidious racial discrimination in contracting, the workplace, housing, public accommodations, education, and other contexts. All such laws, however, suffer from under-enforcement. To invoke an antidiscrimination law, one must first sense mistreatment—a perception that many victims do not have in light of their inability to compare their treatment with that of others. Seeking to protect one’s rights through litigation, moreover, is expensive emotionally, financially, and in terms of time and effort. The ordeal of litigation is enough to dissuade even hardy individuals.

  An argument for affirmative action is that it can usefully serve as a prophylactic device in service against illicit discrimination, preemptively addressing blockages that antidiscrimination law alone is unable to dislodge. The argument recognizes “the difficulty of avoiding discrimination in contexts organized around discriminatory habits and pervaded by group stigmatization.” It supposes that “to do the right thing in the face of a contrary inclination, we must drag ourselves in the opposite direction, as an archer must aim against the wind to hit the bull’s-eye.”53

  The antidiscrimination model of affirmative action has received some scholarly backing and a dollop of presidential and judicial encouragement.54 “If there is evidence that discrimination still exists on a wide scale in ways that are conscious and unconscious,” President Clinton asked rhetorically in 1995, “then why should we get rid of [affirmative action]?”55 Later in that same speech (his famous “Mend it, don’t end it” address), Clinton remarked: “Affirmative action should not go on forever.…But the evidence [of continuing] discrimination suggests, indeed screams” that the moment for cessation has not come. “The job of ending discrimination in this country is not over.” Justice Ginsburg has also stressed the importance of affirmative action in the campaign against invidious discrimination. Concurring in the Supreme Court’s decision to uphold the affirmative action plan at issue in Grutter, Justice Ginsburg observed that “[i]t is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land …”56 To a large extent, however, the idea of affirmative action as prophylactic has played only a marginal role in the debate.

  THE PROBLEM OF THE DISAPPOINTED WHITE CANDIDATE WHO FEELS MISTREATED BY RACIAL AFFIRMATIVE ACTION

  Whites who are disappointed by their failure to win coveted positions that they see Latinos and blacks attain often complain that they are victims of “reverse discrimination.” They are, they say, innocent of complicity in racial wrongdoings that have harmed people of color. They also say that they are entitled to competitions in which people are judged on the basis of individual merit, by which they mean skills and accomplishments attributable to themselves and independent of race. In their view, considerations of race should have no place in the assessment of merit. They assert that it is profoundly wrong for them to be disadvantaged by arrangements in which racial minority status is counted as a “plus” while whiteness receives no such preference.

  This perception of mistreatment and the anger and bitterness that flows from it are significant social costs that should be taken into account in calibrating the social utility of affirmative action. The precise extent of those costs are difficult to gauge. But that they are substantial is clear, given the force of the backlash against racial affirmative action.57

  Though deep feelings of aggrievement may be beyond the reach of argument for some, it is possible that for others negative sentiments may be amenable to change, especially if the arguments made to them are based on appeals to norms of justice. For what stokes the outrage of some opponents of affirmative action is not only their sense of personal loss, but also their sense that they have been victimized. They often see themselves as innocent victims who have been robbed to benefit undeserving competitors who are false victims of long extinguished wrongs in which contemporary whites had no role.58

  The first and most important thing to be said to them is that, as characteristically practiced, racial affirmative action is not unjust or violative of political morality because the “discrimination” that differentiates between whites and other races in this context is not invidious. Though affirmative action entails a modest narrowing of opportunities for whites in competitions for scarce, highly valued positions, this is in no way the result of an effort to humiliate, ostracize, or stigmatize whites. No one can plausibly believe that an affirmative action program signals that whites are thought to belong to an inferior race and must be kept “in their place.” The disappointed white candidate should be told that racial affirmative action—unlike segregation—is not a policy aimed at expressing racial contempt, fear, or any other negative prejudice toward her race. Rather, it is a collective effort to address a major social problem: the continuing trauma of racial division in America. It is not unfair to enlist, to some extent, all Americans in that large, complex, and costly effort, including those who have had no hand in perpetrating racial wrongs. Membership in a polity entails contributing to the alleviation of its woes, just as it means sharing in the riches of its benefits. Americans who had nothing to do with the terrible injustice the United States government imposed on people of Japanese ancestry during World War II were required nonetheless, and rightly so, to contribute toward paying reparations to rectify the wrong done by the society in which they enjoy membership.59

  All persons, including whites, have a right to freedom from racial subordination. But it strains credulity to contend that affirmative action (as characteristically practiced) is a form of racial subordination. As a practical matter, affirmative action could not have been instituted and cannot survive without at least the passive permission of a large sector of politically engaged whites. The story of affirmative action is largely the story of whites choosing to enlarge the number of Latinos and blacks in key institutions, with the consequence of decreasing the number of whites.60 This has been done for a wide variety of purposes—diversity, integration, rectification, the purchase of social peace, legitimation—none of which involve putting whites down because of their race.

  In terms of political morality, affirmative action for the purpose of assisting racial minorities disadvantages whites in a fashion similar to the way in which preferences for veterans disadvantage non-veterans, the way in which preferences for alumni disadvantage candidates whose parents are not alumni, the way in which preferences for athletes disadvantage non-athletes, the way in which preferences for in-state students disadvantage out-of-staters, the way in which preferences for those who are scientifically inclined disadvantages those who dislike science but love literature. Those who are disadvantaged in each of these cases and countless kindred examples can dispute the wisdom of the institutional preference that favors competitors. But they cannot, as the late professor Ronald Dworkin memorably and persuasively argued, claim a right to be judged absent consideration of the traits or circumstances that the preferences noted take into account.61 They have a right to be judged according to the publicized criteria that advance the permissible goals determined by a given institution. But they do not have a right to set those goals unilaterally and thus determine for themselves what should count as “merit” for purposes of selecting the persons deemed to be most apt to further institutional goals.62

  Disappointed opponents of affirmative action often tout their test scores and grade point averages as if those indicia of merit exhaust the spectrum of considerations that a school might properly take into account. If a college or university determines, however, that its
institutional mission includes contributing to the task of racial rectification, inculcating within students a sense of multiracial solidarity, or facilitating transracial learning, then the race of a candidate would correctly be deemed to count as a feature relevant to assessing the comparative value of his or her likely contribution to a given student body.

  Disappointed candidates sometimes evince an especially venomous antipathy for affirmative action because they see it as depriving them not only of valuable opportunities but also cheating them of their just deserts on behalf of those less deserving. They believe that if they have done better than a competitor in terms of conventional meritocratic criteria, fairness mandates that they prevail in the allocation of valued positions. They voice what the distinguished philosopher Michael Sandel describes as “the smug assumption … that success is the crown of virtue,” that those on top are on top because they are more deserving than those below.63 As another leading philosopher, John Rawls, observed, “no one deserves his greater natural capacity nor merits a more favorable starting place in society.”64 Many of the traits we most admire—intelligence, knowledge, creativity, insight—are not solely, often not even mainly, the fruit of our own effort but are instead offshoots of circumstances beyond one’s control: inborn genius, health, caring parents, attentive teachers, a decent neighborhood. That is why discussions of university admissions and similar mechanisms of allocation need to be scrubbed clean of the excessively self-congratulatory individualism in which they tend to be steeped.s Affirmative action can assist with that task by making clear that “admission is not about an honor bestowed to reward superior merit or virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Her admission is justified insofar as it contributes to the social purpose the university serves, not because it rewards the student for her merit or virtue, independently defined.”65