One can only hope that Randall Kennedy gets to discuss “For Discrimination” with Stephen Colbert. The Comedy Central host claims adamantly to be “colorblind.” He does not see race. In his comedy persona, Colbert dramatizes all the obfuscations and hypocrisies of the colorblind stance.
Likewise, in this meticulously argued book, Kennedy implores us to forget the idea of the “colorblind” Constitution, which he maintains is a historically inaccurate interpretation. Kennedy sees such terms as “colorblind” and even “diversity” as misleading sops to a conservative anti-affirmative action bias. Affirmative action is, at its core, says Kennedy, about race. It is discrimination, he says — “positive” discrimination, meant to correct a long history of racial inequity. Affirmative action needs to be seen for what it is, he says, and as a social program it needs to be maintained.
The discussion of the US Constitution’s supposed color-blindness is but a fraction of Kennedy’s illuminating, detailed argument in favor of affirmative action and its application via race-based methods. Kennedy, the Harvard Law School professor who is also the author of “Nigger: The Strange Career of a Troublesome Word” and “The Persistence of the Color Line: Racial Politics and the Obama Presidency,” walks readers through the history of affirmative action in the United States and tries to look forward into its future.
Kennedy examines the concept in the context of American race relations and government policy debates. But his primary focus, understandably, is how affirmative action has evolved through case law and Supreme Court decisions, going back to the landmark 1954 Brown v. Board of Education anti-segregation decision, through the watershed 1978 affirmative-action case Regents of the University of California v. Bakke, and, most recently, Fisher v. University of Texas, which the court ruled on last June.
FOR DISCRIMINATION: Race, Affirmative Action, and the Law
Part of what is so effective about Kennedy’s argument is that he is quick to acknowledge the many flaws of affirmative action — including the fact that those benefiting by programs often are stigmatized.
Moreover, particulars of affirmative-action programs vary from case to case. While he finds some objections valid and allows that being anti-affirmative action does not automatically make one a racist, he nonetheless upholds its use. The reason, he says, is that the effects of 300 years of oppression as well as post-Reconstruction and post-civil rights “negative” discrimination are still being felt.
The most prevalent argument against affirmative action is that it promotes — through quotas and color-based preferences — reverse discrimination. To this Kennedy cites not only the long-lasting effects of discrimination, but also points out, in effect, that it’s difficult to “oppress” a majority that already has all the advantages.
One of the most illuminating aspects of “For Discrimination” is the way in which Kennedy vividly portrays Supreme Court decisions as malleable, subject to reinterpretation, and even reversal not only because of the makeup of the court but because of the changing tide of political circumstances and public opinion.
Near the end of the book, he ponders the future of affirmative action and “the unfinished business of rectification,’’ particularly given the makeup of the Roberts court. “Things change. The composition of the Supreme Court evolves. Arguments that were once thought implausible become persuasive if backed with sufficient force.” By such a formulation, no single win or loss before the Supreme Court is necessarily permanent, no argument finished, including the case for affirmative action.