In the past few months, we have celebrated significant anniversaries from the civil-rights era’s fight for racial equality and against white supremacy. Most recently we commemorated the 50th anniversary of the March on Washington, where Martin Luther King Jr. gave his “dream speech” and, on a more somber note, the bombing of the 16th Street Baptist Church in Birmingham, Ala., where four little girls were murdered by members of the Ku Klux Klan.
Though we hold those commemorations dear, we are less inclined to do the same with the landmark pieces of civil-rights legislation also nearing their half-century anniversaries: The Civil Rights Act (1964), the Voting Rights Act (1965), the Fair Housing Act (1968), and Executive Order 11256, creating affirmative action (1965). That order is the subject of an insightful new book that should lead us to ask many questions about race and discrimination today.
For Discrimination: Race, Affirmative Action, and the Law (Pantheon Books), the sixth book by the Harvard Law School professor Randall Kennedy, traces the twists and turns that have shaped the legal thinking, cultural arguments, and societal understanding of the role of law in the pursuit of racial justice in America.
Though not organized in a strictly chronological fashion, the book begins with the Civil Rights Act of 1866 (enacted primarily to protect the newly won freedom and rights of African-Americans) and continues through to contemporary struggles over affirmative action, most recently in the U.S. Supreme Court case Fisher v. University of Texas at Austin (although the book was written before Fisher was decided). This narrative arc provides Kennedy the opportunity to ask readers to consider how each legislative battle, legal ruling, and presidential veto both shaped and shifted conceptions of racial justice and equity.
We have, he concludes, moved from a period when the concept of racial justice under the law was most often invoked to protect the rights of African-Americans to a time today, when the legal justification for racial redress is often debated and decided on the basis of the case’s impact on the civil rights of whites.
Explaining that complicated reality leads Kennedy to one of his more provocative ideas: It is time for supporters of affirmative-action programs to stop arguing that the policy does not discriminate against whites and only affirmatively helps black and Latino-Americans gain entry to college and professional programs. Affirmative action does discriminate—but it is justified, Kennedy writes, because its goal is to level a playing field that does not treat all players equally. (In Britain they call such policies “positive discrimination.”)
Clearly the playing field is unequal when, for example, the stubborn persistence of residential segregation damages the educational, economic, and health outcomes of blacks and Latinos; and when the unemployment rate for blacks is almost double that for whites, and yet (according to Marked: Race, Crime and Finding Work in the Era of Mass Incarceration, a 2007 book by the sociologist Devah Pager), white men with criminal records are as likely to be awarded jobs as are black men with no such records. If from time to time correcting such imbalances requires that whites lose out, Kennedy believes that the ends, as they say, justify the means.
In short, he says, we need to ask ourselves a question: Is there any way to undo the impact of centuries of legally permitted discrimination against certain racial groups without leveling the playing field by discriminating against whites for a short while? In today’s climate, such a challenge to the idea of a colorblind Constitution should attract more than a little attention.
Kennedy engages the arguments most commonly marshaled against affirmative action, often offering provocatively honest responses. The book begins with his sharing how he has benefited personally from affirmative action (at St. Albans School, Princeton University, Yale Law School), but denies that his self-concept has been crippled by a “scarlet letter” that marks black students as intellectually inferior, as some African-American critics, like Supreme Court Justice Clarence Thomas, have claimed.
Although Kennedy acknowledges that some members of minority groups might feel that way, he argues that for long periods of our nation’s history, whites benefited from employment and educational opportunities that gave them preference because of their skin color. That, he points out, does not seem to have caused them undue psychological distress.
Kennedy also provides a much-needed counterpoint to some of the contemporary calls for swapping raced-based affirmative-action policies in higher education for a version focusing more specifically on class or economic status. He argues persuasively that, given demographics, such a policy would lead to fewer black and Latino students on college campuses. Because of the realities of inner-city education, there are simply more students who are white, poor, and academically prepared than who are black or Latino, poor, and ready for college. Kennedy does not want us to focus on increasing the presence of poor whites in college at the expense of racial diversity and integration.
The one somewhat surprising absence in the book lies in the fact that, because it was written after the oral arguments were presented in Fisher, but before the Supreme Court ruled on the latest challenge to affirmative action in higher education, there is no analysis of what the decision might mean for the future of such programs in the United States. In a narrow decision, the court vacated a lower-court ruling that had upheld race-conscious admissions but left the policy intact.
Kennedy made a number of predictions about what he thought the result would be and why (like many, he believed the court might well strike down affirmative action altogether), with no acknowledgment that we actually do know what happened. Had this book come out earlier, it might have had more impact on the discussion surrounding Fisher and affirmative action in general.
For Discrimination shows where we have come from in our conceptions of race and justice in the law, and where we are now. Kennedy acknowledges that race is a hard topic to discuss, and that the idea of race-conscious legal redress for discrimination is a difficult subject in the best of times. If there were some way to guarantee that all American citizens, regardless of race, ZIP code, income, or status, could receive a guarantee of a world-class K-12 education, he says, the racial playing field might become level on its own. If so, we would no longer need programs and policies that offer broad solutions for racial inequality. In the clear absence of such a guarantee, however, we must continue to look to the law as an assurance that racial justice is still possible.
Noliwe M. Rooks is an associate professor of Africana studies and of feminist, gender, and sexuality studies at Cornell University. Among her books is White Money/Black Power: The Surprising History of African-American Studies and the Crisis of Race in Higher Education (Beacon Press, 2006).
