FOR DISCRIMINATION: Why I Still Believe In Affirmative Action

Editor’s note: This year, the U.S. Supreme Court will hear another case involving affirmative action, the practice of using race-based preferences in college admissions to counteract past discrimination. Harvard Law School professor Randall Kennedy’s new book presents an argument for why he thinks affirmative action is still necessary. We have excerpted it with the publisher’s permission.

Affirmative action has also buoyed my professional career. In 1998, I was inducted into the American Academy of Arts and Sciences and the American Philosophical Society, two of the country’s most prestigious honorific academic societies.

By that point I had built a record of which I could justly be proud, including articles in leading law reviews and an award-winning book. Still, racial considerations explain in part why I was honored ahead of others, senior to me, who had deeper, more distinguished records than mine.

Having snubbed outstanding black scholars in previous eras,† the American Academy and similar organisations are using blacks like me to make amends and to serve other functions. I do not feel belittled by this. Nor am I wracked by angst or
guilt or self-doubt. I applaud the effort to rectify wrongs and extend and deepen desegregation in every aspect of American life.

There will be those, I suspect, who will put a mental asterisk next to my name upon learning that my race (almost certainly) counted as a plus in the process of selecting me for induction into these organisations. If they do, then they should also insist upon putting a mental asterisk next to the name of any white person who prevailed in any competition from which racial minorities were excluded.*

The distinguished historian Eric Foner highlights this point nicely, noting that when he graduated from Columbia College at Columbia University in 1963, his class was all male and virtually all white. “Most of us,” he writes, “were young men of ability, yet had we been forced to compete for admission with women and racial minorities, fewer than half of us would have been at Columbia.” Still, he observes, “none of us . . . suffered debilitating self-doubt because we were the beneficiaries of affirmative action — that is, favoured treatment on the basis of our race and gender.”3

Many Americans misconceive achievement, attributing it entirely to individual effort and talent.† In reality, though, achievement stems from many sources: individual effort, to be sure, but also luck (the good fortune to have a healthy body and mind) and social support (family, schools, parks, libraries, laboratories). In assessing my own record, I try to maintain equanimity, knowing that on account of race I have sometimes been penalised and sometimes been preferred. I do my best and hope that my work meets high standards. I realise, though, that judgment is social, contingent, and subject to forces beyond my control.

Does my status as a beneficiary of affirmative action oblige me to support it? Absolutely not. Mere benefit from a policy imposes no obligation to favour or defend it. Warren Buffett should not be precluded from condemning an unwise tax provision that favours the wealthy simply because he was assisted by it. If a policy is wrong, one should speak out against it. Reasonable affirmative action, however, is not wrong.

I champion sensibly designed racial affirmative action not because I have benefited from it personally — though I have. I support it because, on balance, it is conducive to the public good. It is a continuation and intensification of an egalitarian and democratic impulse in American race relations that has been gathering momentum, albeit fitfully and with dramatic reversals, since at least the Civil War. Racial affirmative action partially redresses debilitating social wrongs. Racial minorities, and blacks in particular, have long suffered from racist mistreatment at the hands of the federal government, state governments, local governments, and private parties.

This oppression has produced a cycle of self-perpetuating problems that will not resolve themselves without interventions that go beyond prospective prohibitions on intentional racial mistreatment. Past wrongs have diminished the educational, financial, and other resources that marginalized groups can call upon, and have thus disadvantaged them in competition with whites.

Hence, it is not enough simply to end racist mistreatment. Reasonable efforts to rectify the negative legacy of past wrongs are also morally required.

* They should be willing, for instance, to put an asterisk next to baseball great Babe Ruth, whose home run record was produced in the absence of black pitchers. See Larry Tye, Satchel: The Life and Times of an American Legend (2009).

† A vivid illustration of this misconception emerged in the presidential election of 2012, when Mitt Romney and his supporters took umbrage with President Barack Obama’s observation that collective investments such as public schooling and road building play a role in every successful business enterprise. See, e.g., “You Didn’t Build That,” Wall Street Journal, July 17, 2012; James Taranto, “You Didn’t Sweat, He Did,” Wall Street Journal, July 18, 2012.

From FOR DISCRIMINATION by Randall Kennedy. Copyright © 2013 by Randall Kennedy. Reprinted with the permission of Pantheon Books, an imprint of the Knopf Doubleday Publishing Group, a division of Random House, Inc.

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