For Discrimination

Thursday, October 03, 2013

Harvard Law School professor Randall Kennedy, author of For Discrimination: Race, Affirmative Action, and the Law, argues in favor of affirmative action, both personally and academically.  

→EVENT:  Prof. Kennedy will be speaking tonight at 6:30 at a ticketed event at New York Historical Society.

Excerpt: For Discrimination: Race, Affirmative Action, and the Law


Growing Up with Affirmative Action

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 Supreme Court invalidated racial segregation in public schools. I visited frequently but did not live there. Fleeing racism like many millions of other Southern black refugees, my parents raised me and my siblings in Washington, D.C. My father once told me he feared that if he remained in the Deep South, he would kill or be killed in a racial altercation. He was a postal clerk who attended a couple of years of college at two black institutions: Dillard University, in New Orleans, and Southern University, in Baton Rouge. My mother was a schoolteacher who earned an undergraduate degree from South Carolina State College, an institution created for Negroes in order to “protect” the state’s white university. When she sought a higher degree, she learned that that sort of study was unavailable to her in her home state. To fulfill what they perceived as their obligation under “separate but equal,” state authorities subsidized her tuition so that my mother could study “abroad” at some institution that would accept blacks. That is how she wound up as a student at New York University, where she earned a master’s 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 heroines—Martin Luther King, Jr.; Rosa Parks; Fannie Lou Hamer—as 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 (1968–73), Princeton University (1973–77), and Yale Law School (1979–82). 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. Albans—the most formative of the schools I attended—to be especially helpful to me during my days as a student there. The same was true at Prince-ton, where I enjoyed the solicitude of William Bowen, who was then the president of the university, and Neil Rudenstine, the university provost (and later the president of Harvard). Their generosity was due, in part, to the mysterious alchemy of friendship. It was also due to their self-conscious, systematic efforts to lend special aid to promising scholars of color in America and indeed around the world. Throughout their distinguished careers, Bowen and Rudenstine have been highly effective practitioners of the affirmative action ethos.

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 disappointing—low 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 we—aspiring lawyers—to 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 remains 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.

In law school, I earned the respect of professors and served on the editorial board of The Yale Law Journal. My most instructive and inspiring experience during law school was working at the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund (LDF). There I had the good fortune of meeting an array of wonderful attorneys, including Jack Greenberg, who offered me a position at LDF. I would have accepted the offer but for the intervention of James Vorenberg, dean of Harvard Law School. He called me near the end of my final year at Yale to ask whether I had considered a career in legal academia. I told him that I had not but that I was open to thinking about it. Dean Vorenberg invited me to Harvard to talk with him, and I did so on several occasions during the postgraduate years when I served as a law clerk for Judge J. Skelly Wright of the United States Court of Appeals and Justice Thurgood Marshall of the United States Supreme Court. Vorenberg and his colleagues convinced me that a career as a law school professor would be fun and fulfilling.

This recruitment was highly unusual. Rarely does Harvard seek to persuade someone to apply for a faculty position. Dean Vorenberg and his colleagues did so in my case because influential professors at Yale had touted me, because I had written essays that appeared in a number of national publications, and because of the prestige in academic circles of the judges for whom I was clerking. They also took extra steps to recruit me because they wanted to add some color to a faculty that, in the mid-1980s, included only one African American and no Latinos, Native Americans, or Asian Americans. During the two years before my arrival, in 1984, the campus had been beset by highly publicized protests in which a substantial number of students and a small number of faculty members accused the law school administration of discriminating against minority academics of color or failing to reach out sufficiently to recruit them.

Affirmative action played a role not only in eliciting my candidacy; it played a role, too, in the ultimate determination to make me an offer. Was I “qualified”? Sure, I was. Indeed, I was highly qualified. But so, too, were still stronger candidates, probably all of whom were white. Top law schools search not merely for those who are highly qualified; they search for the most outstanding among the best qualified. I doubt that I measured up to that standard. To obtain an offer, I needed and received a boost from affirmative action. A race-sensitive desire to assist a promising black scholar, along with my own hard-earned skills and credentials, helped me gain admission to a faculty that otherwise would probably have been outside my reach.

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 organizations 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 organizations. 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, favored treatment on the basis of our race and gender.” 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 penalized and sometimes been preferred. I do my best and hope that my work meets high standards. I realize, though, that judgment is social, contingent, and subject to forces beyond my control.


From the book For Discrimination. Copyright (c) 2013 by Randall Kennedy. Reprinted by permission of Pantheon, a division of Random House LLC. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.


Randall Kennedy

Comments [24]

kikakiki26 from Harlem/Wall Street

Fuva - I repeat you don't know me so keep your assumptions about my indoctrination and education to yourself read this with bass in my white sounding voice. This will be my last reply to you because one of the things I dislike on forums such as this is the takeover by a couple of people engaged in private conversation.

Oct. 04 2013 02:28 PM
fuva from harlemworld

(EDWARD, seriously, how many times are you going to mispell the name? Gimme a break. You probably don't even know you're mispelling it, given how much is clearly lost on you...)

So, what are the foundations of the negative phenomena you point to? Genetics?

Have blacks, Asians, Indians had the same experience? Do you know that the most credentialed immigrant group in America are blacks from the Motherland?

Look, there's clearly so much you don't know. But it's not the ignorance I can't deal with; it's the ignorance with an attitude...

For real, stop addressing me.

Oct. 04 2013 10:56 AM
Edward from Washington Heights AKA pretentious Hudson Heights

fubaf from "harlemworld",

Please stop playing the race card all the time.

The success of Asians from China and India (non-white people) prove that skin color is not holding people back.

It's dysfunctional home life, poor community values, misogynist "hip-hop", "gangsta" culture, teenage mothers, absent fathers and absent proper male role models in "harlemworld" which are the foundations of failure.

Oct. 04 2013 01:12 AM
fuva from harlemworld


Do you think that because Kunta was tortured into Toby, we are obliged to perpetuate slave names in the black community?

Also, you are equating articulation with sounding white; conflating the ability to communicate effectively with speaking with a white tone...What's worse is that, you probably don't even realize this -- your indoctrination (and don't confuse this with education) has been so thorough...I'm wrong for being mad; I should just be sad.

Meanwhile, there's a black man named Barack in the white house, and his Princeton/Harvard-educated-lawyer wife STILL has the bass in her voice.

And EDWARD, from whence come these assumptions about my acheivements and home life? You're a simplistic idiot. Please, keep my name off your keyboard.

Oct. 03 2013 05:31 PM
kikakiki26 from harlem/wall street

Fuva - you don't know me, I don't deny my heritage in any way, yes my name sounds white and my speech sounds white, the former I was born with the latter is because I was properly educated, my parents did not allow me to say "ain't" in their home. Which brings me to my real point education and cultural heritage play a large part in why blacks do not do well in elementary school, college or in the workplace. While we take our kids "down south" on vacation they take their kids to the Hamptons were they mix and mingle with other children and make life long networks, where they learn the value of a dollar and where they are away from the TV, DVD, X-Box and other mind numbing junk. It is common knowledge children of doctors become doctors, children of maids become blue collar workers, don't get me started on children of teenagers. We can and we must do better reach back folks if not to your own family to someone else's but if you are there bring somebody on board with you

Oct. 03 2013 05:10 PM
Robin from Westport, CT

I'm mixed-race: white, black, red, yellow, Anglo, Hispanic. I earned my degree in biology and biochemistry from Harvard. The most compelling research on relative success of whites and blacks on SAT's, in grades, on IQ tests, in college, and after college, offers this telling conclusion: white and black children of families of equal equity (property, savings, stocks, etc.) perform exactly the same. Nuff said on that. Affirmative action seeks to allow more blacks and Hispanics to enjoy the fruits of success in college. Making community colleges free will permit more children of color to ease into college, to see if college works for them personally, instead of a handful being thrown into Ivy League-style maelstroms without a life jacket.

Oct. 03 2013 03:44 PM

What about Chinese students?
They have a different skin tone, facial features and sometimes have
difficulty with English pronunciation, yet they generally score
high on the IQ, SAT test and do not need Affirmative Action to access
the top schools, universities.

Is it fair to keep the Asians out of top schools, because they
outscore other groups and there would be too many of them as a result?

Sometimes, having the right connections that pave the way for a person
to enter a universities like Harvard, Yale, Princeton doesn't always
pay off.

Just look at Bush II, he went to Yale/ Harvard University
and that was a big waste of money, it didn't do him any good.

Yet President Barack Hussein Obama II, raised by a single mother,
and his grandparents, comes across as someone that benefited
from his Harvard University education. He had the intelligence to
take advantage of it and Bush II did not.

Oct. 03 2013 12:55 PM
Edward from Washington Heights AKA pretentious Hudson Heights

Fools like fuba from harlemworld blame skin color for his failures.

Unfortunately for fuba, Asians, whether from China or India, prove that skin color is not a limiting factor.

fubas poor home life, a community that does not value education, denigrates being smart as acting white, is what is holding him back.

Oct. 03 2013 12:47 PM
Amy from Manhattan

I knew I had 1 more for that list! Thanks for reminding me, kikakiki26:

Of course anyone who thinks black people can't be qualified for certain types of jobs will also think any black person who has such a job must have gotten it only because of affirmative action. Both stem from the same racist assumption.

Oct. 03 2013 12:16 PM
fuva from harlemworld

Oh, Bonnie: So on point you are. The connection between the current economic and political dysfunction and racism is THE untold story. Hopefully it will one day be told. Probably after O leaves office.

Oct. 03 2013 11:58 AM
Amy from Manhattan

To the 1st caller: Over & over, studies have sent black & white job candidates for interviews w/the same qualifications, & the white applicants are overwhelmingly the ones hired. Job discrimination still happens, so affirmative action is still necessary.

It's not race *or* class--too many people talk as though only 1 or the other were a factor. Both need to be addressed.

Yes, many (maybe most) people just think of race when they hear "affirmative action," but it's not just because of the kinds of preferences Prof. Kennedy mentioned--most of the people who've benefited from legally mandated affirmative action have been women. (Some people say this as if there were something unfair about it, but it's only because there are more of us.)

Oct. 03 2013 11:55 AM
fuva from harlemworld


Slave names and code switching
are not only futile
they are immoral

ongoing pressure for black folks to
conform to the arbitrary standards of white folks
is not only absurd
(given the history)
it is immoral
in its
unjust invalidation of black folk
and its
perpetuation of white supremacism
(which also hurts white folks)

so stop

Oct. 03 2013 11:53 AM
Bonnie from queens

Racism allows us to have our great income inequality.

You can tell a poor white person down south that he isn't black look how hard we make black persons life compared to yours.

Oct. 03 2013 11:52 AM
Sheldon from Brooklyn

Should Randall Kennedy's kids, who I'm sure, have a great advantage over others, to get into the Ivy League schools, due to their dad's connections, be considered for affirmative action slots because they are black?

Oct. 03 2013 11:50 AM
Truth & Beauty from Brooklyn

How about using academic proficiency as a standard?

I don't care what a person's ethnicity, color, religion, sexual orientation may be, but I do want someone competent. Would you want your surgeon to have graduated in the lower 50% of his/her class? Or the attorney who is representing you in front of the Supreme Court to have failed English?

I have worked in law offices with college level interns who can't write a simple business letter - which, believe it or not, we learned in the third grade. When I see all the articles about people entering college who have to start out by taking pre-college level classes to get up to college level, it just makes me angry. Teach high school level classes in high school and no one who has not gotten a good enough high school education should be admitted to ANY college or university. Period. Elementary and high school education are supposed to prepare students for the work they are going to do on the college level, and college level education is supposed to prepare students for the post-graduate work they are going to be doing. If a person, no matter what color, shape, size, religion, sexual orientation, is not prepared for college level work, they shouldn't be in college!

Oct. 03 2013 11:50 AM
jgarbuz from Queens

Growing up in Brownsville as the only white and Jewish kid in the Van Dyke Housing Projects, I too had the pleasure popcorn being thrown at the back of my head sitting in the movie theater alone as an 8 year old. I stopped going. But gee they had great two-fers then. Two movies plus lots of cartoons all Saturday afternoon for 25 cents plus 1 cent tax. OF course my dad was making $5 dollars a day in 1954.

Oct. 03 2013 11:48 AM
blacksocialist from BKbaby

i love you white people pontificating about the "blacks"

Oct. 03 2013 11:46 AM
Jen from Westchester

Affirmative action is tough for many people to see the need in this "post-racial" America. However, there are still lots of opportunities available to certain people just through the relationships that have been developed for more "socially-priviledged" people developed over the history of this country. Just this last summer I overheard a coworker state that her son (white) was being employed in a position because he knew the person in charge of hiring (county job) and he really wasn't technically qualified. A knew of a kid (black) who would have been perfect for the job, but never even got a chance to apply because this "public" job was never advertised. Until there is some more balance between class and race, it is needed.

Oct. 03 2013 11:46 AM
fuva from harlemworld

Scott on 500+ and ongoing years of white affirmative action is ON POINT. This white man's race awareness is a breath of fresh air and an example. This is the only way forward...

The economics, class, etc. of blacks was born in race terror; they are the ongoing, unchecked effects of centuries of race terror.
The socioeconomic experience of rich and middle class blacks is STILL substantially different than their white counterparts due to this history.
People, stop deluding yourself. This 'race neutral' nonsense is the racism denial that IS the new racism. AA is still needed, and more.

Oct. 03 2013 11:45 AM
kikakiki26 from harlem/wall street

A caller said people will think the Black person got there due to affirmative action. the sad truth is most people believe that when they see a person of color in a certain position anyway. It is an assumption, so that is not a good reason not do away with affirmative action. Also I have a rather white name and a white sounding voice, but when people see me there is a perceptive disconnect which sets up a minus, may be or may not be conscious but neverthe less it appears. So the caller who said white people have always had affirmative action was very correct.

Oct. 03 2013 11:45 AM
Sheldon from Brooklyn

Many minority students may struggle at so called, "elite" colleges - due to the fact that they were short-changed by their k-12 education.

Asian and immigrant (many black African) students do better, not because they are smarter but because many of their working class parents make up for average k-12 by paying for relentless extra prep, compounded by higher expectations.

Oct. 03 2013 11:43 AM
James from nyc

Brand name schools let you buy elite style things.

thats my mado.

Oct. 03 2013 11:40 AM

yet no one talks about how those uplifted by affirmative action do not respect people like Randall. Instead, sports figures, hip hoppers and thugs are what the demographic supposedly helped by affirmative action worship. its time for a cultural revolution in the black community. More MLK less Jay Z

Oct. 03 2013 11:34 AM
Sheldon from Brooklyn

Affirmative action is fine. Race based affirmative action, as well meaning as it is, is no longer appropriate and is not effective in achieving its stated goals.

Considering blacks needed armed national guard troops, just to enter a college campus less than a life time ago, race based A.A was probably needed at one point - as an acute stop gap to decades of hostility towards blacks seeking to educate themselves. (Slaves were routinely beaten, even killed, if their masters found out they were learning to, or can read.)

The crisis with minorities and higher education today, is more related to economics, class, connections, geography, and dare I say it - culture, in some cases with k-12 education.

Cherry picking a few candidates for college slots does not solve the terrible k-12 options many poor and working class kids, some who may happen to be minorities have, compared to their more affluent counterparts.

Oct. 03 2013 09:00 AM

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