Race, Affirmative Action, and the Law

by Randall Kennedy

  Two additional points should be noted. One is that whites innocent of racial wrongdoing remain beneficiaries of it to the extent that they profit, albeit involuntarily, from historically embedded racial inheritances and the many privileges that accrue with the mere status of being white in a society that remains to a large extent a white-oriented pigmentocracy. Vocal about the ways in which they perceive themselves to be victims of reverse discrimination, whites angered by affirmative action rarely concede the advantages they enjoy by dint of their white-skin privilege.

  The second point is that disappointed whites often overestimate the extent to which affirmative action decreases their chances of success and exaggerate the degree to which affirmative action played a role in a particular failure that they suffered. In university admissions, many white rejected applicants believe that they would have been admitted (1) if there had been no pro-minority affirmative action program and/or (2) if they had been non-white. Goodwin Liu demonstrated years ago, however, that that belief is frequently mistaken.66 He calculated that with respect to certain selective schools, half of all rejected white applicants would have been turned down in the absence of affirmative action and would also have been turned down had they been non-white. Another large contingent of rejected whites would have been rejected in the absence of affirmative action but would have gained admission if they were racial-minority candidates.

  Liu confirmed that affirmative action does substantially enhance the chances of racial minorities gaining admission to selective schools. What he also convincingly showed, however, is that often affirmative action does not substantially decrease the chances of any given white applicant, for the simple reason that there are many such applicants for each particular seat in a class that goes to someone helped by affirmative action. He found that “the admission of minority applicants and the rejection of white applicants are largely independent events.”67

  Though it may be comforting to proclaim that one would surely have been admitted had it not been for the minority candidate (or the legacy candidate or the athlete), the odds disagree. Such proclamations, however, will continue to be voiced. While it is fallacious to assert that racial affirmative action causes the displacement of large numbers of rejected white applicants, the claim is nonetheless potent. It focuses resentment against an important vehicle of redistributivist reform and provides as well an all-purpose salve for the hurt feelings of disappointed whites.

  DOES AFFIRMATIVE ACTION HELP OR HURT ITS BENEFICIARIES?

  A damning argument, potentially, against affirmative action is that it hurts its putative beneficiaries more than it helps them. The argument features several claims. One is that affirmative action cripplingly stigmatizes its beneficiaries and, indeed, anyone affiliated with groups that are perceived as eligible for affirmative action assistance. A second is that affirmative action systematically overpromotes beneficiaries, putting them in positions for which they are ill-prepared, setting them up for destructive defeat in competition against better-prepared peers.

  These objections are weighty. Some defenders of affirmative action, fearful of making any concessions, argue as if affirmative action poses no costs, entails no risks, involves no dangers. The reality is far different. Barbara Bergman rightly observes that “just as all potent medications have side effects, affirmative action may [also] have some results that are bad.” The issue “is the balance of good and bad: are the bad effects … so pervasive and harmful that they outweigh whatever good might be accomplished?”68

  THE STIGMA OBJECTION

  The most well-known basis for claiming that affirmative action is more hurtful than helpful to its supposed beneficiaries is that it stigmatizes them.69 Several Supreme Court justices have made allusion to this asserted cost. In his Bakke opinion, Justice Powell declared, “Preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.”70 Echoing Powell, Justice O’Connor averred, in City of Richmond v. J. A. Croson Co., “Classifications based on race carry a danger of stigmatic harm … they may in fact promote notions of racial inferiority.”71 Dissenting in Metro Broadcasting v. FCC, Justice Kennedy maintained that “special preferences can … foster the view that members of the favored group are inherently less able to compete on their own.”72

  It is Justice Clarence Thomas, however, who has voiced this theme most persistently, aggressively, and personally, stating that affirmative action “programs stamp minorities with a badge of inferiority” and complaining that “so-called ‘benign’ discrimination teaches many that … minorities cannot compete with them without their patronizing indulgence.”t 73 His animosity toward affirmative action is wildly ironic in that it is hard to imagine anyone who has benefited more than he has from affirmative action. President George H. W. Bush intimated that race had nothing to do with the decision to select Thomas to fill the seat vacated by the retirement of Justice Thurgood Marshall. But that can be believed only by dint of the most willful and stupid naïveté. Of course Thomas’s race played a role, a major role, in his selection. It is not accidental that he was selected to fill the seat vacated by the first black member of the Court, the great Thurgood Marshall.u 74

  Social scientists have performed experiments that have produced results that are consistent with the stigma hypothesis. In one array of studies, experimenters asked volunteers to evaluate the qualifications of individuals selected for employment or for admission to higher education. Researchers informed one set of evaluators that the selecting institution had an affirmative action program but made no mention of affirmative action to a second set of evaluators. When affirmative action was mentioned, evaluators consistently gave lower grades to minorities and women than when no mention was made of affirmative action—even though the files for all of the purported candidates were identical.75 In another investigation, volunteers paired five résumés with five newly “hired” employees. When told that affirmative action had affected the selection, the volunteers paired the one African American among the candidates with the weakest résumé at a rate that was significantly higher than when no mention was made about affirmative action.76 These and similar research findings suggest, according to Professor Linda Hamilton Krieger, “that in many contexts, members of majority groups will assume that individual women and minorities selected in connection with preferential forms of affirmative action are less qualified and less capable than others.”77

  Commentators, too, have referred to stigma as a cost of affirmative action—in the eyes of some, a prohibitively expensive cost. The conservative polemicist Midge Decter asserted this proposition decades ago, charging that “affirmative action itself is creating a new wave of racism and sexism that is no longer based on fear, or hatred, or on guilt, but rather on contempt.” According to Decter, “whatever people think about the justice or injustice of making special allowances for blacks and women, what they feel is that the objects of these allowances are somehow inferior.…By means of a policy intended to shortcut past discriminatory practice, the American populace will have been encouraged to a kind of prejudice that, if more subtle, will also for that reason be infinitely more difficult to overcome.”78

  I have seen affirmative action leave a stigma on its beneficiaries and anyone in the class of potential beneficiaries (whether or not they were actually assisted) by prompting a depreciation of their credentials. The concern, of course, is that credentials gained with an affirmative action boost are somewhat unreliable as signals of expertise. This leads to a certain dimming of the halo created by a prestigious appointment, promotion, or award. I offer two autobiographical examples. When I won a Rhodes Scholarship in 1977, a cousin asked whether I had won a “real” or merely “an affirmative action scholarship.” He was joking. But, as with many jokes, this one delivered a sting. My other example is drawn from my experience as a professor at Harvard Law School. I have often received calls from
partners in law firms inquiring about certain student candidates. They have been duly impressed by the students’ credentials but have wanted to know whether the students were “really” good. The students for whom I have received such calls have invariably been black students. The partners calling (who have also been black) have said nothing about affirmative action expressly. But my strong impression is that apprehension over affirmative action inflation is what prompted their calls. They seemed to have wanted to peek beneath what to them were depreciated paper credentials in order to get a closer, more assuring, more “real” assessment of the candidates’ abilities.v

  A number of beneficiaries or potential beneficiaries have noted their sense of being diminished, underestimated, devalued, or condescended to at least in part because of the shadow cast by affirmative action. Consider the case of Stephen L. Carter, the distinguished professor-novelist-pundit at Yale Law School. A central feature of his Reflections of an Affirmative Action Baby (1991) is his agonized grappling with the collateral damage inflicted by efforts to promote high-achieving African Americans, like himself, who are locked in competition with high-achieving peers of all backgrounds. “Affirmative action has been with me always,” he observed. “No matter what my accomplishments, I have had trouble escaping an assumption that often seems to underlie the worst forms of affirmative action: that black people cannot compete intellectually with white people.”79 What Carter decried as particularly debilitating is “the ‘best black’ syndrome.” He complained that high-achieving blacks who are assumed to be beneficiaries of affirmative action

  are measured by a different yardstick: first black, only black, best black. The best black syndrome is cut from the same cloth as the implicit and demeaning tokenism that often accompanies racial preferences: “Oh, we’ll tolerate so-and-so at our hospital or in our firm or on our faculty, because she’s the best black.” Not because she’s the best-qualified candidate, but because she’s the best-qualified black candidate.80

  According to Carter, the best black syndrome generates within affirmative action beneficiaries “a peculiar contradiction.” They are flattered in that those who praise them mean to bestow a compliment. At the same time, “flattery of this kind carries an unsubtle insult, for we yearn to be called what our achievements often deserve: simply the best—no qualifiers needed!”81

  Perhaps the most poignant reflection of the affirmative action stigma is the indignation with which some beneficiaries (or merely perceived beneficiaries) respond when identified as recipients, or even potential recipients, of affirmative action assistance.82 A black student at the University of California in the early 1990s complained: “I feel like I have AFFIRMATIVE ACTION stamped on my forehead.”83 Richard Robinson was a black musician hired by the Detroit Symphony Orchestra pursuant to a highly public episode of racial selectivity in auditions. His response afterwards was hardly joyful: “I would have rather auditioned like everybody else. Somehow this devalues the audition and worth of every other player.” A bit later, when another black musician was offered the job of conducting the Detroit Symphony, he rejected the offer, citing the controversy over affirmative action. “You fight for years to make race irrelevant, and now they are making race an issue.”w 84

  Negative reaction upon being identified as a beneficiary stems largely from the derogatory meaning placed upon affirmative action by its enemies. But it is due as well to the inescapable inference that those needing the boost of affirmative action are inferior, at least temporarily, in some relevant way to those without need of the boost.

  One response is to repudiate “established” criteria of performance, deny that test scores, grade point averages, or kindred traditional means of sorting are indicative of merit, and resist the claim that those with better test scores and grade point averages are superior in any way that ought to bear significantly on who should be selected for scarce openings or positions. Those embracing this position see established criteria as illegitimate means of sorting that do not so much identify “merit” as reinforce illicit hierarchies designed by elites to perpetuate the ascendancy of people like them.85 Hence, Professors Lani Guinier and Susan Sturm maintain that

  affirmative action, as it is currently practiced, supports an underlying framework of selection that is implicitly arbitrary and exclusionary. It does not challenge the overall operation of a conventional and static selection process; instead, it creates exceptions to that process. Those exceptions play into existing racial stereotypes, predictably generating backlash. By implicitly legitimizing a selection process that operates in the name of merit, affirmative action programs reinforce that backlash.86

  Guinier and Sturm see affirmative action, as conventionally understood and practiced, as a validation of deeply misleading established criteria.

  This response, to a large extent, is tantamount to shooting the messenger of bad news. The bad news is that racial minorities typically eligible for affirmative action—i.e., Latinos and blacks—consistently perform less ably than others across a wide range of standardized tests and other widely accepted markers of knowledge and skill. This is true at elementary, intermediate, and higher levels of schooling. It is also true in a wide range of occupational settings.

  Guinier, Sturm, and like-minded observers—I call them testing deniers—assert that these gaps reveal only an apparent or artificial difference in performance—not a real difference. Sometimes they are correct. The disparate-impact prong of antidiscrimination law has revealed scores of tests and other sorting devices that are only tenuously related to the knowledge or skills needed for a particular job. Often, though, testing and other mechanisms of sorting do reveal something real, pertinent, and significant. They reveal that those who have inherited less in the way of human capital—education, skills, valuable social networks—often perform less ably in relevant respects than their advantaged peers. This ought not be surprising. Oppression hurts. Injuries have consequences. The glaring and persistent gap between whites and racial minorities eligible for affirmative action is a manifestation of the manifold injuries inflicted by racial mistreatment.

  Deniers acknowledge that racial minorities have been victimized by racial injustice. They refuse to concede, however, that that victimization has actually diminished the performance levels of those who have been directly or indirectly victimized. They refuse that concession because they insist that the testing gap is a reflection of the arbitrariness or unfairness of the tests and other sorting devices—not a reflection of the lesser achievement, skill, or knowledge of minority candidates. My sense is that they are afraid that any acknowledgment of a real gap in performance levels will be seized upon by partisans of the status quo to justify the existing order. The deniers want to challenge what they see as the “myth of meritocracy” and seem to believe that essential to their case is a denial of the utility of virtually any traditional sorting mechanism.

  I support investigating sorting mechanisms to make sure that they are testing for pertinent attributes. When examinations impose a disparate impact and fail to identify sufficiently the qualities supposedly being sought, they ought to be scrapped, as is required under the disparate-impact prong of federal antidiscrimination law. But some criteria are useful indicators of skill or achievement even when they do have the effect of excluding disproportionately larger numbers of racial-minority candidates. When that is so, reformers should aim not to abolish the test but to abolish the conditions that create the stark, predictable racial gaps that have become all too familiar. Proponents of affirmative action should avoid denying the obvious—that many racial-minority beneficiaries of affirmative action are behind their white peers in terms of the knowledge and skills rightly expected by schools, firms, or other institutions. Rather, proponents of affirmative action should see racialized gaps in performance as signs of a difficulty to be overcome—the ongoing effect of insufficiently remedied racial injustice. That is the problem—not the criteria that expose that problem.

  Some proponents
of affirmative action fear that onlookers will repudiate my definition of the problem and will instead see racialized gaps as manifestations of innate racial inferiority or virtually irremediable cultural deficiencies. That is the fear that, in part, prompts them to deny that, in certain settings, whites do in fact outperform racial minorities. They want by all means to avoid conceding that, at least at the moment of testing, white competitors for valued positions do tend to outdo their racial-minority peers, and often by wide margins.

  Their fear is understandable. Rumors, insinuations, assertions, and purported demonstrations of colored people’s alleged cognitive inferiority have a long lineage in American culture. In 1994, a modern version of the myth of blacks’ intellectual inferiority was published to considerable acclaim. The Bell Curve, by Richard J. Herrnstein and Charles Murray, was not only a best seller; it received a respectful hearing among leading arbiters of elite opinion.87 Entrenched as well is the notion that racial gaps stem not so much from past or present racial mistreatment as the collective character defects of colored people, especially blacks—improvidence, impulsiveness, laziness, concupiscence—abetted by government largesse, lowered expectations, and coddling.88 In this view, the proper reaction to racial gaps in performance is patient resignation or exhortations that racial minorities exercise more personal responsibility—not the initiation or continuation of programs like affirmative action.