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Four Takes

Taking a closer look at the powder keg of affirmative action

A sign in favor of affirmative action held outside the Supreme Court in 2015.Jacquelyn Martin/AP/file

“[A]ffirmative action is like an injured bear,” writes Randall Kennedy. It’s “too strong to succumb to its wounds but too hurt to attain full vitality.” The renowned Harvard Law School professor wrote that four years ago, but it’s sure germane now in light of the Justice Department’s apparent renewed interest in anti-affirmative-action complaints against colleges.

Harvard, in particular, is in the legal crosshairs. Jeff Sessions’s team says it wants a closer look at allegations filed on behalf of a group of Asian-Americans who say they face a higher bar for admission at Harvard than other racial and ethnic groups, including whites.


This is, of course, only the latest turn in a decades-long battle that has been waged mostly by white conservatives. They argue that it’s unfair to give special treatment in college admissions to underrepresented minorities, who historically faced institutional bias. What’s fair to some, however, is error to others — as my readings today reveal.

On to Kennedy’s no-holds-barred book title: “For Discrimination: Race, Affirmative Action, and the Law” (Pantheon, 2013). It begins when he is 9, watching “The Nutty Professor” from the balcony of a segregated theater in the Jim Crow South. Then years later, he declares that it’s not nutty that he, now a professor, belongs to academic organizations that “are using blacks like me to make amends.” He is neither “belittled” nor “wracked by angst” over this. No: “I applaud the effort to rectify wrongs.”

We’re more likely to use the word diversity now, rather than the loaded term “affirmative action,” says Kennedy. But he worries that the true crisis of black marginalization has gotten lost in the process. Because affirmative action calls to mind a past Americans want to put behind them, the issue is not so much an academic, occupational, or judicial issue — it’s an emotional one.


Kennedy notes that the heat rises whenever compensatory strategies are invoked (it’s human nature) and goes on to offer a lively analysis and history of affirmative action. (Apparently, John F. Kennedy first used the term at the federal level.) “The Pursuit of Fairness: A History of Affirmative Action” (Oxford, 2004) further peels back this background. Author Terry H. Anderson, a history professor at Texas A&M, cites how Secretary of the Interior Harold Ickes wrote a nondiscrimination clause in Public Works Administration projects in 1933. In 1940, civil rights leader A. Philip Randolph pressed Franklin D. Roosevelt to issue an executive order to make it mandatory to hire blacks to work in defense plants. When FDR demurred, Randolph said he would mobilize 100,000 to march on Washington. The president feared violence — most of the district’s policemen were white southerners. Thus Executive Order 8802: Randolph called off the march.

The injured bear recovered nicely in the decade before Reagan came on the scene. Writes Kennedy: “Whether civil rights leaders realized it or not, during the 1970s they were winning their final demand, compensation, and the next questions then became ‘how much?’ and for ‘how long?’ ” This anthology lively covers those questions and more: “Debating Affirmative Action: Race, Gender, Ethnicity, and the Politics of Inclusion” (Delta, 1994) is both prescient and dated. (“Few issues so divide America in the 1990s,” as editor Nicolaus Mills writes). It features 28 contributors, including Clarence Thomas, Chang-Lin Tien, Dinesh D’Souza, Cornel West, and Ellen Goodman. Shelby Steele considers affirmative action a “Faustian bargain” while John Larew, then of the Harvard Crimson, nails “the real profiteer” of educational affirmative action: legacy children (then twice to three times as likely to get in, even with inferior grades).


“Race to the Flop.” So went the headline for the New Republic’s review of “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It” (Basic, 2012). Authors Richard H. Sander, a UCLA law professor, and Stuart Taylor Jr. a legal journalist, hold that many minority students would do better at less elite schools, where their incoming academic credentials wouldn’t put them at the bottom of their incoming classes. The mismatch, in other words, is the fault of an admissions department overdoing its quest for diversity. The reckoning shows up in lower graduation rates.

Sander and Taylor don’t want to ditch affirmative action altogether, but they do roll out a number of reforms. Change the criteria, for one, from racial diversity to socioeconomic diversity. Therein lies a charged argument, as current history — and these illuminating books — bear out.

Katharine Whittemore is senior writer at Amherst College. She can be reached at Katharine.whittemore