Against For Discrimination

by Roger Clegg
A review of Randall Kennedy’s For Discrimination: Race, Affirmative Action, and the Law.

The title, “For Discrimination,” is honest at least — especially compared with most defenses of racial preferences, that being a low bar indeed. And, to be sure, the author, Randall Kennedy, is honest in many ways, particularly in using a cost/benefit framework to assess affirmative action’s justifiability, listing the purported benefits and weighing them against (most of) the undeniable costs. But he is completely incomprehensible in deciding that the purported benefits could possibly outweigh the costs. And I should add that the book is not always fair. Kennedy obviously has a special dislike for Justice Clarence Thomas, the unseemly expression of which detracts from the book’s attempt to strike an evenhanded tone.

Kennedy suggests four possible justifications for racial preferences.

The first one, the only justification available today in university admissions, which is the focus of the book, is diversity. Kennedy doesn’t think much of it. More points to him for honesty. While he no longer quite holds this argument in “disdain,” he “remain[s] doubtful about social scientific ‘proof’ of diversity’s [teaching, learning, and decision-making] value; much of that seems exaggerated and pre-determined with litigation in mind.” Later he criticizes Justice Sandra Day O’Connor for accepting such studies without the appropriate skepticism. He can hardly believe that the diversity justification can meet the constitutional requirement of being “compelling” if it can be accepted only “so long as the demands and expectations imposed on it are not too onerous.”

This is, for me, the key takeaway from this book: A high-profile liberal apologia for racial preferences has little use for their only justification that has any legal viability.

A second justification for racial preferences, their possible prophylactic effect against discrimination, has conceivable but dwindling plausibility in some areas, and none whatsoever in the university-admissions context, where for decades now university officials have been all too happy to engage in politically correct racial discrimination.

The third justification, the integrative effect of racial preferences, is what Justice Lewis Powell called “discrimination for its own sake” in his seminal Bakke opinion. It has never been adopted by the Court as a compelling interest (O’Connor only adverts to something like it in her Grutter opinion).

The fourth justification is clearly Kennedy’s favorite: racial preferences as a kind of reparations for the lingering effects of historical societal discrimination. It, too, has been rejected by the Court, as Kennedy acknowledges. And rightly so — as he denies.

No doubt some of the racial disparities we see now can be traced to slavery and Jim Crow, but there is likewise no doubt (a) that some of the causes of the disparities are self-inflicted (Kennedy says precious little about those causes — and nothing in particular about illegitimacy, the underlying and principal ongoing cause) and (b) that with every tick of the clock, the effect of slavery and Jim Crow recedes.

To his credit, Kennedy admits that many of those receiving preferences today are not among those who suffer most from racial disparities. He fails to acknowledge, however, that pointing to past discrimination does not provide much justification for giving Latinos a preference over Asian Americans — an increasingly common result of preferences, as these two groups are growing much faster than blacks and whites. Indeed, Kennedy generally ignores the problem of discrimination against Asian Americans in university admissions.

In all events, it makes no sense to use race as a proxy for disadvantage. The reparations argument anthropomorphizes different racial groups when in fact many children of all colors are poor for all kinds of reasons. Why pick out one color of children who are (or might be) poor, and whose poverty is (or might be) caused by a particular reason, and give them special treatment?

To elaborate: The government (or a university) has before it a group of socioeconomically disadvantaged 18-year-olds. Some are black and can plausibly trace their poverty to slavery and Jim Crow. Others cannot — maybe they are recent immigrants, for example, or maybe their parents just made bad lifestyle decisions. Some are Hispanic and, with greater difficulty, might be able to trace their poverty to discrimination; more are poor simply because their parents came recently from poor countries. Some are Asian and, in the aggregate, their reasons for poverty mirror those of Hispanics. Some are non-Hispanic whites and can trace their poverty to a variety of reasons — some of which might cause us to feel sympathy for their parents, some not. And there are Arab Americans, Native Americans, and Americans of a variety of mixed ancestries.

Why should the government (or a university) choose some of these kids for special, favorable treatment rather than just treating them all as disadvantaged, as they all are? And in particular, why should it use skin color as a proxy for having ancestors who experienced a particular kind of misfortune — and, indeed, use it to justify special, favorable treatment of children who are not disadvantaged at all?

Some other problems: As noted, some of Kennedy’s justifications don’t work at all in some of the areas where racial preferences are used — for example, the “diversity” rationale in contracting, or the “prophylactic” rationale in university admissions — so you can’t simply add them up and say that cumulatively they justify all the current uses of preferences.

Kennedy doesn’t deal at length or very well with the Constitution (“I am not an originalist”), and he manages not to quote Title VI of the 1964 Civil Rights Act at all, which is quite a feat when several times, at length, he discusses the Bakke decision, where it played a central role. The statute reads: “No person in the United States shall, on the ground of race, color, or national origin . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.” Hard to wiggle out of that one — or it ought to be.

Mindful of the failures and high costs of racial preferences (“Perhaps there does need to be a recalibration of affirmative action programs to minimize avoidable costs”), Kennedy says again and again that he wants “sensibly designed” affirmative-action programs. This calls to mind a question Milton Friedman asked years ago: “What would you think of someone who said, ‘I would like to have a cat, provided it barked’?” He was referring to a call for “sensible” government regulations; his point was that the nature of government regulation is that it will always fall short. Likewise, as long as racial-preference programs are administered by politically correct university officials, they will not be sensible in design or execution. The only way to ensure that they are used sensibly is to ban them, so that they are either not used or, if a school cheats, more likely to be used only in the drastically limited way that Justice Powell envisioned.

Kennedy acknowledges some, though not all, of the costs of using racial preferences in university admissions. Here’s my list: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it involves states and schools in deciding which racial and ethnic minorities will be favored and which ones won’t, and in how much blood is needed to establish group membership — an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).

But even if we limit ourselves to just the costs that Kennedy acknowledges, it is astonishing that he finds them to be outweighed by the four dubious justifications for racial preferences he lists — of which, again, two have been rejected by the Court, one doesn’t apply to university admissions, and one Kennedy himself finds shaky.

— Roger Clegg is president and general counsel of the Center for Equal Opportunity.