Race, Affirmative Action, and the Law

by Randall Kennedy

  “The most fundamental thing to understand about [racial] affirmative action in Britain,” Professor Steven M. Teles observes, “is that there is none,” or at least none of the “hard” variety—racial preferences at the point of actually choosing someone for a job or a place in a university.9 “In Britain, using differential standards to benefit minority groups [subsequent to the stage of recruitment or training] is called positive discrimination and is forbidden by the Race Relations Act of 1976 (RRA).”10 British law does permit targeted recruitment and training for racial minorities. Hence, the British RRA expressly permits employers to encourage racial minorities to apply for job openings. For the most part, though, the RRA requires that persons be accorded the same treatment regardless of race. Under the RRA, “a person “discriminates” against another “if on racial grounds he treats [that person] less favorably than he treats or would treat other persons.”g

  The administration of the British RRA is consonant with its original intentions and legislative language. Courts, regulatory agencies, and the ascendant sectors of British public opinion have provided little encouragement for American-style affirmative action. A paucity of racial-minority, particularly black, faces at leading universities in the United States generates major repercussions as we have seen. In Britain the conspicuous scarcity of racial minorities at Oxford and Cambridge has, thus far, caused little sustained controversy.

  France, too, has pursued a course very different from the American model of affirmative action, though recently changes in both countries suggest the possibility of convergence.11 The French constitution ensures “the equality of all citizens before the law, without distinction of origin, race, or religion.”12 This language has been interpreted as prohibiting all official racial boundary-making and thus all official race consciousness. Propounding something close to the color-blindness ideology that Ward Connerly sought to institute in California, administrators of the French census decline to elicit racial data, concerned that doing so will somehow undercut French transracial solidarity. Certain prominent figures have tentatively suggested taking race or national origin into account in selecting government officials and allocating opportunities for jobs and higher education. In 2004 President Jacques Chirac admitted that he had told his ministers to appoint someone of “immigrant origins” to head one of the country’s regions. At the same time, Nicolas Sarkozy, then the minister of the interior, allowed as to how it might be necessary, given structural inequities, to take special steps to open up opportunities to France’s immigrants. These moves, however, are outliers; for the most part, the French establishment has rejected affirmative action that is explicitly racial.

  French authorities, however, have established programs that are silent as to race on their face (in that the criteria for eligibility say nothing explicitly about race) but race conscious in motivation and design (in that the criteria are chosen with the intention of assisting racial minorities). In allocating educational opportunities, for example, French authorities have quietly sought to influence the racial demographics of college admissions without saying so openly by using as criteria of eligibility for benefits the residential location and socio-economic class position of candidates—in other words “race neutral” affirmative action. French policy seems to be headed away from a determined indifference to racial outcomes toward an uneasy desire to assist racial minorities through means that are silent as to race albeit race conscious. American policy seems to be moving toward a similar destination but from a locus that, albeit conflicted, was previously more accepting of openly acknowledged racial affirmative action.

  Other comparisons that usefully highlight important facets of the American experience with racial affirmative action involve Brazil and the Republic of South Africa.13 Brazil received many times the number of African slaves that were shipped to British North America. Brazilian slavery, moreover, outlasted the American regime of human bondage. Whereas slavery in the United States was abolished in 1865, it was not abolished in Brazil until 1888. Slavery in the United States was followed by a long period during which blacks in the South were subjected to a dense array of segregation laws and officially sponsored (or required) discriminatory practices. Post-slavery Brazil, by contrast, was free of de jure segregation but pervaded by beliefs, customs, conditions, and practices that systematically subordinated blacks while favoring whites. The upshot was a Brazilian pigmentocracy in which light skin entailed opportunity and elevation while dark skin entailed deprivation and subordination. Notwithstanding this sobering reality, Brazilian intellectuals and policy makers created a concept of “racial democracy” that celebrated Brazil’s supposed freedom from American-style bigotry. Proponents of racial democracy frowned on attempts to understand Brazilian social stratification in racial terms or to organize racially to advance Afro-Brazilians. Hence, when activists first broached the idea of racial affirmative action in Brazil’s colleges and universities, racial democracy was deployed in opposition from a wide range of ideological vantages from right to left.

  For a while, the status of racial affirmative action in Brazil was stuck, as in the United States, in a stalemate. On the one hand, local authorities intermittently generated affirmative action initiatives. In 1999, for example, the city of Porto Alegre required that firms doing business with the municipality have workforces in which blacks constituted at least 5 percent of the employees.14 That same year, the state of Bahia required that in official publicity releases at least one-third of all models or actors must be black.15 On the other hand, opposition delayed or otherwise stymied all sorts of proposed affirmative action plans.

  Recently, however, the stalemate in Brazil seems to have been decisively breached by affirmative action measures undertaken or approved by authorities at all levels of Brazilian politics and law. The Brazilian Supreme Court upheld a 2004 law that requires the University of Brasília to reserve 20 percent of its seats for black Brazilians. Still more recently, the president of Brazil signed the Law of Social Quotas that mandates that public universities allocate admissions in accordance with the racial make-up of the state in which a college or university is located. Explaining his support for the new quotas, Brazil’s former president Luis Inácio Lula da Silva remarked: “Try finding a black doctor, a black dentist, a black bank manager, and you will encounter great difficulty. It’s important, at least for a span of time, to guarantee that blacks in Brazilian society can make up for lost time.”16

  Another racially divided country that has used affirmative action as a means of addressing multiple pressing problems is the Republic of South Africa. Its post-apartheid constitution echoes India’s. The South African constitution declares that “everyone is equal before the law and has the right to equal protection of the law.” It then asserts that “[t]o promote the achievement of equality, legislative, and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” Political authorities have made use of this constitutional authorization, enacting legislation such as the Higher Education Act that commands all South African universities to generate “appropriate measures for the redress of past inequalities.” A consequence is university admission policies that openly favor colored, Indian, and black applicants, admitting them with test scores and other indicia of achievement that are lower than those of white competitors.

  The dominant political force in the Republic of South Africa, the African National Congress (ANC), enthusiastically and unequivocally supports affirmative action. Hence, for the foreseeable future, legally authorized racial selectivity in the distribution of scarce and valued resources, including seats in institutions of higher education, will be an important feature of South African life. Behind the support is a sense, on the part of leading figures, that in the South African context, affirmative action is not merely permissible but morally and legally obligatory. In the words of Nelson Mandela, the founding father of post-apartheid South Africa,

  Affir
mative action is a principal means of dealing in as just and realistic a manner as possible with the progressive eradication of the guilt created by the past discrimination. It must be seen as an alternative … to waiting for centuries for the market on its own to eliminate the massive inequalities left by apartheid.17

  South Africa offers a setting for affirmative action that is less problematic in important respects than that which obtains in the United States. For one thing, South African affirmative action followed right on the heels of apartheid. Its racial beneficiaries were categorically oppressed within recent memory and those whom it collaterally disadvantages are obviously the beneficiaries of the old white supremacist regime. Remarkably, though, virtually all of the anti–affirmative action arguments that surface in America also surface in South Africa. Professor R. W. Johnson asserts, for example, that “[t]he decision to press ahead … with affirmative action … was the greatest single disaster to overtake the new South Africa.”18 In his view, affirmative action amounted to a replication of apartheid, albeit with different racial winners and losers. It lowered economic efficiency. It redistributed resources “away from the poor towards the middle classes.” It mocked meritocracy since “whether a person or an institution has been ‘historically disadvantaged’ … now determined who got which job, contract, or grant.” Affirmative action, Johnson writes, “offered nothing to the black majority other than worse services.” Johnson is a centrist liberal. But his disdain for racial affirmative action is shared by others, including some far to his left. Hence the Marxist sociologist Neville Alexander portrays racial affirmative action in South Africa as a disappointing compromise that is a betrayal of socialist and nonracialist aspirations. “The real beneficiaries of the deal,” Alexander complains, “have been the bourgeoisie and the rising black and established white middle and professional classes.”19

  I do not propound a universal assessment of racial affirmative action. Whether it is good or bad depends on local conditions—the character of the society’s needs, the relative strength of those benefited and disadvantaged, the plausibility of alternative vehicles for reform. One thing clarified, though, by comparative study of affirmative action internationally is that virtually everywhere, no matter what the design of the program at issue, opposition will arise against efforts to redistribute resources regardless of the privations endured by marginalized groups or the lineage of the injustices sought to be remedied. I draw attention to the ubiquity of opposition to reform not to damn criticism of affirmative action. Criticism is essential. Specific affirmative action programs can be stupid, corrupt, counterproductive, exploitative. The ubiquity of opposition, however, should counsel against undue squeamishness in the face of criticism or an excessive concern with crafting a program free of shortcomings. Racial affirmative action in contemporary America is by no means perfect. It is riddled with problems. But it is a better response to daunting challenges than available alternatives.

  As affirmative action enters a fourth decade of controversial existence in the United States, an important issue shadowing it is the matter of an endpoint. Color-blind immediatists contend that it should end now. Many who support the continuation of affirmative action contend that it should end at some point in the foreseeable future. In Grutter, Justice O’Connor voiced a hope for a quarter-century sunset. Writing in 2003 she averred:

  It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further [the compelling interest identified by the Court].20

  While there is nothing wrong with expressing a hope that one day special measures on behalf of marginalized groups will no longer be essential, anxiety about an endpoint should not be allowed to stymie the continued deployment of affirmative action for as long as it is needed to accomplish the wide variety of important missions that it serves.

  Throughout American history there has surfaced repeatedly a regrettable tendency to underestimate the power of racism’s influence and to bring to an end too soon promising interventions. From differing ideological vantage points both Justices Ginsburg and Thomas offer support to my cautionary point in their responses to Justice O’Connor’s invocation of a quarter-century timeline. Justice Thomas observes that O’Connor

  cannot rest [her] time limitations on evidence that the gap in credentials between black and white students is shrinking or will be gone in that timeframe.…No one can seriously contend … that the racial gap in academic credentials will disappear in 25 years.21

  Justice Ginsburg also offered sobering reflections, stressing the stubborn persistence of racism. “It is well documented,” she related, “that conscious and unconscious race bias, even rank discrimination based on race, remain alive and well in our land.…” Largely because of the consequences wrought by biases “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”22 Ending it prematurely would be a calamity.

  * * *

  aA percentage plan is not necessarily race conscious. State authorities could establish such a program with the authentic intention of preferring students on a geographical or class basis with changes in racial demographics an acknowledged but unsought collateral consequence. In fact, though, the most consequential percentage plans, those in Texas, Florida, and California, have been established primarily for racial reasons. See Michelle Adams, “Isn’t It Ironic? The Central Paradox at the Heart of ‘Percentage Plans,’ ” Ohio State Law Journal, 62 (2001): 1729.

  bPreviously I noted how opponents of racial affirmative action frequently, albeit inaccurately, invoke King for moral authority. See this page. That misappropriation should cease.

  cI am aware of the delicious irony that this rhetoric was used by defenders of slavery in the nineteenth century to rehabilitate themselves.

  dThe Indian constitution provides that “[t]he state shall not deny to any person equality before the law or the equal protection of the laws.…” It also provides that nothing in the constitution “shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.” See Constitution of India, Right to Equality, 14, 15(4).

  eThe convention includes as “discrimination” any “distinction, exclusion, restriction or preference based on race … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in … public life.”

  fAccording to the convention these “special measures” shall not be continued “after the objectives for which they were taken have been achieved.” International Convention on the Elimination of All Forms of Racial Discrimination, Art. I, Para. 4.

  gThe British RRA, however, does feature a racial bona fide occupational qualification provision which permits race to be valued as a credential when it can be shown to be useful to the performance of a particular job. There is no such exception formally recognized in American antidiscrimination law.

  Acknowledgments

  Many people have assisted me with this book. The following read early drafts and offered useful corrections and suggestions: Michelle Adams; Gary Bell; Thaddeus Bell; Betsey Boutelle; Scott Brewer; Jonathan Bruno; Sherry Colb; Jared English; Brian Fitzpatrick; Eric Foner; Matthew Giffin; Anne Hudson-Price, Samuel Issacharoff; Henry H. Kennedy Jr.; Laura King; Michael Klarman; Amanda Korber; Sherilyn Ifill; Sanford Levinson; Patrick Llewellyn; Anthony W. Mariano; Frank Michelman; Angela Onwuachi-Willig; Richard Primus; Ronni Sadovsky; Tommie Shelby; Girardeau Spann; Marc Spindleman and Julie K. Suk. Professor Ilya Somin ventured way beyond collegial courtesy to provid
e a close reading of the manuscript. I am deeply grateful.

  I developed many of my ideas in a seminar I taught at the University of Pennsylvania Law School as the Raymond Pace and Sadie Tanner Mossell Alexander Visiting Professor of Civil Rights. My thanks go to Dean Michael Fitts and his colleagues and students for their exemplary hospitality. I also had an opportunity to try out portions of the book at a symposium on affirmative action at the Pontifical Catholic University of Rio de Janeiro (under the auspices of Professor Angela Randolpho Paiva), at a Constitution Day lecture at Northeastern University (under the auspices of Professor Michael Tolley), at the James Fraser Smith Lecture at the University of Iowa College of Law (under the auspices of Dean Gail B. Agrawal), and at the Robert L. Levine Lecture at the Fordham Law School (under the auspices of Dean Michael B. Martin).

  People who gave me a good push when I needed it include my editor, Erroll McDonald; my other friends at Pantheon Books, especially Altie Karper and Michiko Clark; my agent, Andrew Wylie; and my assistant, Benjamin Sears.

  The dean of Harvard Law School, Martha Minow, has been unreservedly helpful, as have been other colleagues, particularly a remarkable cadre of people in the Harvard Law Library: Jennifer Allison, Aslihan Bulut, Claire DeMarco, Lisa Junghahn, Josh Kantor, Janet Katz, Mindy Kent, Meg Kribble, Karen Storin Linitz, Michelle Pearse, Terri Saint-Amour, Craig Smith, Carli Spina, George Taoultsides, Anne-Marie Taylor, Stephen Wiles, Selina Ahad, Route Asefa, Margery Brothers, Kristin Bruner, June Casey, Kyle K. Courtney, Tanya Flink, Larry McCarthy, Shahrzad Mirshamsy, Ashley Pierce, Heather Pierce, Louise Ragno, Jessica Rios, Samantha Sullivan.