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A Refreshingly Honest Book About Affirmative Action

Randall Kennedy admits it helped him—and proves why we need it

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After a decade hiatus, affirmative action in higher education has come back before the U.S. Supreme Court not once but twice. The court decided Fisher v. University of Texas in June, making it more difficult for colleges to justify racial preferences. And this fall, the court will hear a case challenging a voter referendum banning affirmative action in Michigan. Unfortunately, much of the discussion is marred by tendentious argument and obfuscation. On the right, Justice Clarence Thomas draws deeply ahistorical comparisons between segregation and affirmative action, while on the left, supporters routinely deny the actual way in which racial preferences are administered by universities.

Into this debate steps the highly thoughtful Harvard Law professor, Randall Kennedy, whose new book candidly assesses affirmative action’s costs and benefits. Beginning with its provocative title, For Discrimination is a profoundly honest work on a topic frequently marked by mendacity. Kennedy is frank about how racial preferences work in practice, including in his own career advancement as an African American academic. He is forthright about the drawbacks of affirmative action, too, which makes the positive case he outlines all the more credible. Ultimately, though, he gives short shrift to an emerging third way—affirmative action for economically disadvantaged students of all races—that achieves most of the benefits, while avoiding the costs, of traditional racial programs.

The book’s candor stands in deep contrast to many affirmative action advocates, who minimize the practice by talking about race as a small “plus factor” in a “holistic review” process in higher education admissions. Barack Obama goes so far as to say “affirmative action programs, when properly structured, can open up opportunities otherwise closed to qualified minorities without diminishing opportunities for white students.”

Kennedy will have none of this. “But how can this be?” Kennedy asks of Obama’s formulation. “If a campus or work site is at all constrained by scarcity, as all selective ones are, special efforts made on behalf of racial minorities will necessarily diminish opportunities for whites, even if only minimally.” Careful research by Princeton University’s Thomas Espenshade finds that African American students at selective colleges receive the equivalent of a 310 SAT point boost (on a 400-1600 point scale) over white students. “Racial affirmative action does distinguish between people on a racial basis. It does discriminate,” Kennedy writes. “Wrongly denying that there is any element of ‘preference’ or ‘discrimination’” in affirmative action hurts the cause, he suggests.

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A march for affirmative action in Washington, DC.

Even more impressively, Kennedy candidly acknowledges the positive role of race in in his own career. The son of a postal clerk and school teacher, Kennedy’s resume sparkles in a manner which seems difficult to improve upon. A graduate of Princeton College and Yale Law School, a Rhodes Scholar at Oxford, a law clerk to Justice Thurgood Marshall, and now a Harvard Law professor, Kennedy openly acknowledges that “an affirmative action ethos played a role” in his admittance to elite schools. He had a poor LSAT score, yet was admitted to all the law schools to which he applied. And he won a job as a Harvard Law professor (indeed, was invited to apply) even though, he says, there were “stronger candidates, probably all of whom were white.”

Taking affirmative action out of the closet, as Kennedy does, is a brilliant move, because he and others put human faces on affirmative action’s successes. Only a wingnut would say, in retrospect, that Princeton, Yale and Harvard were wrong to take a risk on Kennedy—or that similar institutions were wrong to help advance the young Barack Obama or Sonya Sotomayor. Identifying individual beneficiaries of affirmative action is especially important because in Supreme Court litigation, it is the white plaintiffs—students like Abigail Fisher and Allan Bakke—who get to tell their individual stories of being passed over because race counted against them in their applications.

Refreshingly, Kennedy also openly acknowledges the drawbacks of affirmative action. The policy “risks instilling excessive race-mindedness, stoking resentment, and [siphoning] attention from those whose needs are even greater than those typically benefitted by positive discrimination,” he writes. He discloses that he often receives calls from black law partners wanting to know if black law students of Kennedy’s are highly qualified, calls Kennedy attributes to “apprehension over affirmative action inflation.” Kennedy also concedes that while the original beneficiaries of the 1970s program of affirmative action were supposed to be economically disadvantaged, today, the most privileged students often benefit. In 1972, more than half of black students entering elite colleges came from families in the bottom half by socioeconomic status, but by 1982, the proportion was one quarter, and by 1992, 8 percent.

Despite the costs, Kennedy argues, the benefits of racial programs justify the practice on balance. The single most compelling argument, Kennedy says, is the need to redress our history of discrimination. Following slavery, he writes, the U.S. “continued to permit peoples of color to be routinely stigmatized, exploited, intimidated, disenfranchised, and terrorized by private parties and public authorities.” Failure to redress that history will perpetuate a caste system in future generations, he says. While today’s black students are only “indirect” victims of slavery and segregation, they have nevertheless “lost out in terms of inherited financial wealth, access to education, and access to human capital.”

While Kennedy is less enthusiastic about the pedagogical benefits that come from having a racially diverse student body, he embraces Justice Sandra Day O’Connor's emphasis on the related value of integrated institutions. “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,” she wrote. Kennedy underlines this rationale with a poignant anecdote from his youth in Jim Crow South Carolina, when he watched movies from a segregated balcony and took from the scheme the message “that Americans were divided into teams designated by complexion.” Affirmative action, by contrast, can “knit together a deeply divided society,” he contends.

I’m drawn to Kennedy’s analysis, because, like him—and many Americans—I’m torn by racial affirmative action, seeing considerable costs as well as considerable benefits. But I’m puzzled that he blithely dismisses an available third path—economic affirmative action—that achieves most of the benefits of racial preferences and more, without incurring the considerable drawbacks.  

In the 1960s, Dr. Martin Luther King Jr. advocated this approach as a way of addressing our history of discrimination. As Kennedy points out, King wrote in his 1964 book, Why We Can’t Wait, of the need for “compensatory or preferential treatment,” noting, “it is obvious that if a man is entering the starting line in a race three hundred years after another man, the first would have to perform some impossible feat in order to catch up with his fellow runner.” But Kennedy fails to reference King’s actually policy proposal outlined in Why We Can’t Wait: a Bill of Rights for the Disadvantaged. King wrote, “While Negroes form the vast majority of America’s disadvantaged, there are millions of white poor who would also benefit … It is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness, should also be rescuing a large stratum of the forgotten white poor.”

Fifty years later, several states educating roughly one quarter of the U.S population, have banned racial preferences at public universities, but in virtually all cases, these states and universities have not simply given up on racial integration but have instead taken King’s path—providing a leg up in admissions to economically disadvantaged students of all races, and expanding financial aid programs. Some have also admitted students in the top portion of every high school class, whether rich or poor, irrespective of standardized test scores. The enactment of these new policies suggests while racial preferences are unpopular, so is resegregation. As Kennedy notes, “Most Americans want to escape the gravitational pull of the country’s ugly racial past.”

In seven of 10 leading universities, according to a study I conducted with Halley Potter, these alternative strategies have produced as much black and Latino representation as racial preferences had in the past. And along the way, they created considerably more socioeconomic diversity than racial plans. The Texas Top Ten Percent plan, for example, produced slightly higher levels of black and Latino representation than using race had in the past, and more than twice as many low-income students as those admitted through a discretionary program (including affirmative action.)

Kennedy objects to these programs, suggesting, “there is little or no substantive difference between racially selective policies that openly seek to enlarge the number of racial minorities in sought-after institutions and policies that seek to accomplish that purpose surreptitiously with no open reference to race.”

But that view seems wrong for two reasons. Although consideration of wealth and economic status has a positive racial dividend, it will not, like racial preferences, help all minorities (Sasha and Malia Obama have wealthy parents) and it will help some poor whites and Asians, who deserve a leg up. Race-neutral strategies that target actual economic disadvantage get universities to address an inequality they have long sought to avoid but which is now more predictive of life chances than race.  

Moreover, class-based affirmative action programs would appear to avoid many of the costs of programs that explicitly employ skin color in decision-making—costs Kennedy himself ably articulates. A student admitted through a top 10 percent plan or having overcome economic obstacles will surely face less stigma than one admitted by race. As a political matter, class-based preferences remind working-class whites, blacks, and Latinos what they have in common rather than emphasizing, as racial preferences do, what divides them. And if one’s goal is to “knit together a deeply divided society” then achieving racial integration without categorizing students into different racial “teams” with different chances of admission is surely to be preferred.

Kennedy worries that low-income black and Latino students admitted through class-based preferences might perform poorly at elite colleges and “reinforce stereotypes.” He also worries that class-based programs will inspire as much political backlash as welfare programs that became racialized in the minds of white Americans and are deeply unpopular. But in fact black and Hispanic students admitted to UT Austin ended up performing well, according to research by Marta Tienda and Sunny Niu of Princeton. Likewise, Stanford’s Caroline Hoxby recently found that there is a large talent pool of high-scoring low-income students, many of them black and Latino, who are not now attending selective colleges and universities. And polls suggest that while racial preferences are very unpopular, about two-thirds of Americans support preferences in college admissions for economically disadvantaged students of all races.

Kennedy raises the obvious question: Rather than substitute class for race, why not get behind the “race and class” banner? I agree with him that universities should pursue the twin goals of racial integration and socioeconomic mobility as part of a larger equal opportunity agenda, but, paradoxically, experience shows the best way to achieve a mix of economic and racial diversity is to eliminate or severely curtail the ability of universities to employ race. While in theory, universities could pursue the race-plus-class agenda independently, research by William Bowen and others finds selective universities heavily weight race in admissions but provide no boost for economically disadvantaged students. The main exception to this rule comes at public universities where race is banned from admissions and officials switch to class, not because they are suddenly interested in socioeconomic diversity, but because it becomes the next best proxy for race.

Kennedy concludes that ending affirmative action by race would constitute “a major calamity,” but the best evidence suggests that when race is dropped from admissions decisions, states, to their credit, come up with something even better. They stop using race as a proxy for disadvantage and actually grapple with the much more powerful issue of economic disadvantage itself.

Richard D. Kahlenberg, a senior fellow at the Century Foundation, is author of The Remedy: Class, Race and Affirmative Action (1996) and the coauthor of A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences (2012).