Kennedy - For discrimination: race, affirmative action, and the law

Copyright 2013 by Randall Kennedy

All rights reserved. Published in the United States by Pantheon Books, a division of Random House LLC, New York, and in Canada by Random House of Canada Limited, Toronto.

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Library of Congress Cataloging-in-Publication Data
Kennedy, Randall, [date]
For discrimination : race, affirmative action, and the law / Randall Kennedy.
pages cm
Includes bibliographical references and index.
ISBN 978-0-307-90737-0
eBook ISBN: 978-0-307-90738-7
1. Affirmative action programsLaw and legislationUnited States. 2. Race discriminationUnited States. I. Title.
KF 4755.5. K 46 2013 342.730873dc23 2013001471

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In Praise of Eric Foner and Sanford Levinson

I have been blessed to know wonderful teachers. This book is dedicated to two who stand out as extraordinary models, mentors, and friends. Professor Eric Foner is the preeminent interpreter of the history of the United States. Professor Sanford Levinson is the most adventurous, independent, and wide-ranging intellectual in the American legal academy. For more than three decades they have encouraged me unstintingly. I thank them for the tremendous positive difference they have made in my life.

I can clearly recall watching the Jerry Lewis version of the film The Nutty Professor from a balcony set aside for African Americans in a theater in Columbia, South Carolina, in the summer of 1963. Ironically, as a nine-year-old, I perceived that Jim Crow arrangement as favoring blacks; it was far easier for us to throw candy down on the whites seated below than for them to throw things up at us. Back then, I thought that Americans were divided into teams designated by complexion. State authorities fed this perception with a chain in the middle of the road that separated whites and blacks in the area where my aunt lived, the choice to close rather than desegregate public parks, and ordinances requiring racially separate bathrooms (especially memorable for me were the signs differentiating white ladies from black women).

I was born in Columbia in 1954, the year the That is how she wound up as a student at New York University, where she earned a masters degree.

Throughout the late 1950s and early 1960s, I enjoyed a happy childhood in a loving household. By moving north, my family did not wholly escape racism; anti-black attitudes and practices were (and are) a national phenomenon. But what we encountered in D.C. paled in comparison with what my extended family faced in South Carolina; one of my cousins was at the civil rights protest at South Carolina State College in which three undergraduates were murdered by state police in an episode of racially motivated violence that, while the subject of a fine book, has never received the attention it warranted.

In my house, discussion about the civil rights movement was constant. From my parents I learned to revere well-known heroes and heroinesMartin Luther King, Jr.; Rosa Parks; Fannie Lou Hameras well as lesser-known figures like James Hinton, Modjeska Simkins, and Matthew Perry. Subsequently, I have come to appreciate with ever-deepening gratitude the benefits they pried open and that I have enjoyed as a matter of course. For one thing, I have had the privilege of attending an extraordinary array of schools that became accessible to more than a negligible number of black students only after the late 1960s: St. Albans School for Boys (196873), Princeton University (197377), and Yale Law School (197982). An affirmative action ethos played a role in my admittance and flourishing at each of these selective, expensive, and powerful institutions. This ethos consists of a desire to make amends for past injustices, a commitment to counter present but hidden prejudices, a wish to forestall social disruption, and an intuition that racial integration will enrich institutions from which marginalized groups have largely been absent.

Of course, I encountered invidious racial discrimination in these schools periodically, but, luckily for me, the balance of my encounters along the race line were positive. I have often been shown special attention in competitive settings in which my blackness was perceived as a plus. I am quite certain that my race played a role in prompting teachers at St. Albansthe most formative of the schools I attendedto be especially helpful to me during my days as a student there. The same was true at Princeton, where I enjoyed the solicitude of

When I was a senior in college, considering law school, I attended a gathering that featured the Yale Law School dean of admissions. He distributed a document that included a chart noting the range of Law School Admission Test (LSAT) scores of the students in the most recent entering class. I had just received my LSAT results. My score was disappointinglow enough that it did not even appear on the chart. I waited until the dean had fielded all of the other students questions before I bashfully approached him and asked whether, given my score, I should still apply. He asked what sort of grades I had earned. When I told him that I had an A-minus average, he urged me to proceed. I won admission to Yale, Harvard, and every other school to which I applied. I had the profile of a hard worker, and I also had a halo over me, having just won a Rhodes Scholarship. In other words, without affirmative action I would surely have gained admission to a fine law school. But in its absence, and in the face of that spectacularly mediocre LSAT score, would I have gained admission to Yale and Harvard? Maybe not.

I attended Yale Law School (YLS) in the aftermath of Regents of the University of California v. Bakke (1978). In that landmark ruling, the Supreme Court invalidated a particular affirmative action program but upheld affirmative action in university admissions in general, if structured in a certain way and pursued for the sake of diversity. At YLS, virtually all black students supported affirmative action. Doing so was seen as a sacred communal obligation. A memorable dinnertime discussion with black peers in my first year involved the question of what to do when Bakke became the subject of inquiry in class. One upperclassman (who has subsequently distinguished himself in government service and business) argued passionately that the case allowed for only one defensible outcome: he maintained that we ought not allow Bakke to be debated, because our presence at the school should not be subject to debate. He recommended that we walk out of class if opposition to affirmative action was voiced. I recall thinking at the time that that advice was silly. How else were weaspiring lawyersto master the arguments and counterarguments regarding affirmative action other than by engaging antagonists? But I also remember biting my tongue; as a newcomer, I thought it prudent to be quiet until I got a better sense of my surroundings.

Affirmative action figured, too, in another episode that re- mains vivid for me decades later. In my second year, in the introductory course on taxation, a black student was the first person called on. There were only two or three other black students in that class, and I made it a point to speak with them afterwards. I wanted to know whether they had felt as anxious as I had when our black classmate was called upon and whether they had felt as relieved as I had when she displayed mastery of the relevant material. They told me that they, too, had felt personally implicated by her performance and that they, too, had cheered silently when she answered commendably, putting the race in a good light. The perception of linked fate and that feeling of being always on the spot as a representative of the race, at least in mixed company, are features of African American life that predate affirmative action and arise outside of its presence. They are accentuated, however, in settings in which affirmative action is salient.