Harvard Law Prof Defends Affirmative Action
Harvard Law Professor Randall L. Kennedy spoke in Philadelphia yesterday to support the use of affirmative action in American public life, particularly in regard to increasing opportunities for black Americans.
“It’s a good thing for public authorities to do what they can to redress the ongoing scars of past discrimination,” Kennedy said to an audience at the city’s central library.
The professor recently published a book titled “For Discrimination: The Persistence of the Color Line: Racial Politics and the Obama Presidency.” The topic is particularly timely with the U.S. Supreme Court slated to hear arguments Tuesday in Schuette v. Coalition to Defend Affirmative Action over Michigan’s constitutional amendment banning consideration of race in admissions for public institutions of higher education.
The high court already took a step toward curtailing race-based university admissions last summer in Fisher v. Texas when it ruled that strict scrutiny must be applied when deciding affirmative action cases, stopping short of banning the practice altogether.
In an era when support for racial preference policies appears to be waning, Kennedy asserted that there is still a place for them. “In America when you talk about discrimination it usually has a negative connotation,” he said in a nod to the controversial title of his book. “I think we can distinguish between malign discrimination and benign discrimination.”
Costs and Benefits
Kennedy readily acknowledged the boost he got from affirmative action in his own life, pointing to a high school scholarship, admission to Yale Law School and recruitment to join the faculty at Harvard as opportunities that he believes his skin color helped open up.
He also took a shot at Supreme Court Justice Clarence Thomas, who is black and claims that he never in his life benefited from affirmative action. Laughing, Kennedy pointed out “there is nobody in the United States of America who has been more of a beneficiary of affirmative action than Clarence Thomas.”
Thomas, perhaps the most outspoken opponent of race-based selection in nearly every facet of public life, was appointed to the court by George H.W. Bush in 1991 to fill the spot vacated by Thurgood Marshall, replacing the first black justice in history with the second. “Does anyone think that was accidental?” the professor asked.
Kennedy did address some of the negative effects of affirmative action, including the imposition of a stigmatic cost on beneficiaries, and the generation of resentment in the hearts and minds of people who don’t benefit from it. “I’m thinking of white people who think they are the victims of reverse discrimination,” he said, citing Abigail Fisher, the plaintiff who sued the University of Texas after she was denied admission, claiming she was not given a spot because she is white. “Whether she’s right or if she’s wrong,” the professor said, “the fact of the resentment itself is a cost.”
Kennedy said he was proud of the strides the country has made in the last 50 years, dismissing old discriminatory laws and putting new civil rights protections in their place. The inclusion of African Americans on the Supreme Court, in government cabinets, and in the oval office itself, he noted, reflected a consciousness that recognizes diversity in and of itself as being worthwhile, while at the same time opening doors to a broader range of qualified individuals.
Nevertheless, he concludes, we still have a long way to go. “We live in a society that has been infused in the deepest, deepest way with racism from the get go,” Kennedy said. “It is still the case that we live in a pigmentocracy. People of color get the short end of the stick.”