Harvard law professor Randall Kennedy probably deserves his own chapter in the history of black intellectuals and black legal scholars. Over the years he has told us a great deal — some of it intentionally, with scholarship and skill; some inadvertently or unwittingly –about how race is regarded and debated in the academy, especially the legal academy.
In his early writings, delivered with force and skill, he often surprised readers by departing from the analysis of his peers. For this he came under heavy fire, particularly from Derrick Bell, the first tenured black professor at Harvard Law School and one of the founders of critical race theory.
In 1998 Bell, a former mentor to Kennedy, wrote a bitterly critical renunciation of his former protege, “The Strange Career of Randall Kennedy,” in effect calling Kennedy an Uncle Tom for assuming the role of an “impartial black intellectual, … [a] self-appointed monitor of civil rights positions … ever ready to balance even the most heinous racial abuse with criticism of blacks when, in his view, our accusations condemning racism … go too far.” Kennedy, in Bell’s view, by then himself a law professor at Harvard, “forgot whose side he was on,” demonstrated by his willingness to take public positions that “serve to comfort many whites and distress blacks.”
Against the Grain
In his early career Kennedy did indeed perfect the persona of the open-minded, even fair and balanced liberal willing to write and speak against the grain of civil rights orthodoxy. In Race, Crime, and The Law (1998) and other writings he opposed the use of race to balance juries. In Interracial Intimacies: Sex, Marriage, Identity, and Adoption (2003) he defended interracial dating, marriage, and cross-racial adoption. In “My Race Problem — And Ours” (Atlantic Monthly, May 1997), he even came out against racial pride, racial loyalty, and racial identity itself, celebrating the unencumbered individual “freed from the sanctions of custom and tradition and inherited status … installed as sovereign.”
In his early writings Kennedy honored the non-discrimination principle and was often sharply critical of using racial distinctions to implement even good public policies. A few examples:
- “I disapprove of most forms of public affirmative action myself, on the premise that public authorities shouldn’t be permitted to allocate burdens and benefits on racial grounds in the absence of an absolute emergency.” (ReviewingAbigail and Stephan Thernstrom, America in Black and White;
- “… under our law, the drawing of racial distinctions, particularly by government officials, is and should be presumptively illegitimate.” (Opposing the use of race in placing children for adoption);
- “A disturbing feature of the debate over racial profiling is that many people, including judges, are suggesting that decisions distinguishing between persons on a racial basis do not constitute unlawful racial discrimination when race is not the sole consideration prompting the disparate treatment…. This dilution of the meaning of discrimination is troubling not only because it permits racial profiling to continue…. Even worse, this concession will likely seep into other areas of racial controversy, causing mischief along the way.” (“Suspect Policy“).
‘Positive Discrimination’
At the same time, however, Kennedy inexplicably continued to defend racial preferences in hiring and college admissions, for example defending affirmative action (which he called “positive discrimination”) in a 2003 article against “the right’s grotesque attempt to strangle it judicially in the name of equality.” Since he never explained or even attempted to reconcile the glaring discrepancy between his powerful, apparently principled criticism of affirmative action in many articles and his heated defense of it and denunciation of its critics in others, I called him “inscrutable” in a long discussion in 2003 and “still inscrutable” in another in 2010.
With the publication of his new book, For Discrimination: Race, Affirmative Action, and the Law, Randall Kennedy is inscrutable no more. Reading his earlier work was always interesting because you never knew which Kennedy you were going to encounter. Based on his unqualified support here “for discrimination” — his title is commendably descriptive and honest — now you do. The enticing prospect of finding an unexpected argument against the grain is gone. Now he says exactly what you would expect a liberal black Harvard professor to say, with the flat familiarity and none of the possibility of surprise that lurked in his former writing.
Not a Principle, but a Tool
Gone is the argument that racial preferences are “presumptively illegitimate” and should be used only in “an absolute emergency.” On the contrary, he now asserts, affirmative action “is not a necessary evil; it is a positive good” and is even “morally required” because the continuing inferior position of blacks in America presents a permanent emergency that justifies scrapping the principle of non-discrimination altogether. According to the current Kennedy, “nondiscrimination is better understood not as a ‘principle’ but merely a tool.”
Kennedy’s rejection of any right to be free from racial discrimination (he would say from bad discrimination, but that merely reveals the absence of any principle of non-discrimination) has also led him to discard his former celebration of the “unencumbered self” so eloquently endorsed in his “My Race Problem — And Ours” essay linked above. “I eschew racial pride,” he wrote there, “because of my conception of what should properly be the object of pride for an individual: something that he or she has accomplished.” Now, perhaps consciously echoing Barack Obama’s “you didn’t build that” attack on individual achievement, the current Kennedy writes that “many Americans misconceive achievement, attributing it entirely to individual achievement and effort.”
Kennedy’s response to Richard Sander’s “mismatch” argument is a striking example of his current view that the interests and rights of individual blacks should be subordinated to the good of “the black community as a whole.” After feebly quibbling with Sander’s evidence (though ignoring Sander’s devastating reply to critics Kennedy cites), Kennedy concludes that preferential admissions are justified even if “mismatch” results in fewer black lawyers because “the cadre of black attorneys trained at the top-tier schools are more valuable to the black community than those trained at the lower-tier schools, and hence that, if necessary, maintaining the numbers at the higher-tier schools would be worth sacrificing marginal members or potential members of the black bar.” This elitism is W.E.B. DuBois’s “talented tenth” with a vengeance.
What About Hubert Humphrey?
Kennedy’s response to Sander is typical of his approach throughout For Discrimination. Emulating the former Kennedy and attempting to maintain at least the veneer of open-mindedness, he is perfectly willing to acknowledge the costs (or at least some of the costs) of racial preference policies, and he urges critics not to dismiss Sander and other critics of affirmative action out of hand. Proof that this veneer is only skin deep, however, is that for him no costs are ever too great, the benefits always compelling. Although he claims to support only “sensibly designed” preference policies, he provides no examples that are not sensible, including hard quotas.
One of the unappreciated ironies of current arguments defending racial preference is the degree to which they stand on the shoulders of dead racists and reject the principles of formerly revered liberals. True to form, Kennedy rather gleefully reminds anyone who needs reminding that the former abolitionists led by Wendell Phillips and Thaddeus Stevens failed in their attempt to have a colorblind standard embedded in the 14th Amendment, that Justice John Marshall Harlan’s eloquent assertion “our Constitution is colorblind” was and is wrong. What, then, does he make of the emphatic, repeated assertions of Hubert Humphrey and other liberals that the 1964 Civil Rights Act prohibited any preferential treatment based on race? “The words of Senator Humphrey and his allies forswearing affirmative action should be understood as mere strategic feints,” he explains, at best a reflection of the limitations “of early 1960s white racial liberalism … that regrettably underestimated the barriers” of continued racial discrimination. An inevitable accompanying irony, of course, is that the racist opponents of the Civil Rights Act were correct in their predictions that it would lead inexorably to racial preferences.
Kennedy’s only “principle” at present is “racial justice,” which in practice requires a rejection of rights in order to promote a redistribution of resources. “Racial justice” invariably finds that the benefits of racial discrimination in favor of minorities always outweighs the costs, however high those costs are. He does not think we should be bound by the principles of dead liberals or the texts, however clear, in which those principles are embedded. “Racial affirmative action,” he argues, should not be held hostage to the “thin formalism” of a non-discrimination principle but should be left to the discretion of “regular majoritarian politics.”
Never made clear, however, is how a cost-benefit approach to racial discrimination — or any right, for that matter — can provide a workable legal standard. Legislators make cost-benefit judgments all the time, as they must and should, but shouldn’t judges evaluate those judgments by measuring them against rights found in the Constitution and laws and notsimply against their own preferences for how to balance the costs and benefits? By what standard can Kennedy’s or anyone’s cost-benefit ever be said to be wrong?
Kennedy implicitly answers that question by sounding very much like a born-again critical race theorist, concluding that “the supposed separateness of ‘law’ and ‘politics'” is nothing more than a “widely believed myth.”
If Derrick Bell were alive today, he would applaud For Discrimination, but no applause will come from those who believe that treating people without regard to race is a principle worth defending.
