The Critical Critic

Thanks to reader-researcher “W” for the sendalong, especially considering that the review is behind a pay wall.

Apparently, Kennedy doesn’t say “forever,” but since he requires that the blacks be made whites absolute equal, and that is never going to happen, he is demanding, sotto voce, that black supremacism be maintained for all time.

Blacks in America have an average IQ of 15-22 points below that of whites. Even well-to-do blacks are anti-intellectual, and even poor whites, who get treated like dirt, academically beat well-to-do blacks like a drum. Blacks’ proclivity for crime is many times that of whites. Again, well-to-do blacks commit more crime than poor whites. American blacks’ work ethic is virtually non-existent. And the more freebies and privileges you give them, the worse they get.  

For Discrimination: Race, Affirmative Action, and the Law
By Randall Kennedy
Pantheon Books, 2013
304 pp., $25.95

Reviewed by Noliwe M. Rooks
October 14, 2013
Chronicle of Higher Education

Noliwe M. Rooks is an associate professor of Africana studies and of feminist, gender, and sexuality studies at Cornell University. Among her books is White Money/Black Power: The Surprising History of African-American Studies and the Crisis of Race in Higher Education (Beacon Press, 2006).

In the past few months, we have celebrated significant anniversaries from the civil-rights era's fight for racial equality and against white supremacy. Most recently we commemorated the 50th anniversary of the March on Washington, where Martin Luther King Jr. gave his "dream speech" and, on a more somber note, the bombing of the 16th Street Baptist Church in Birmingham, Ala., where four little girls were murdered by members of the Ku Klux Klan.

Though we hold those commemorations dear, we are less inclined to do the same with the landmark pieces of civil-rights legislation also nearing their half-century anniversaries: The Civil Rights Act (1964), the Voting Rights Act (1965), the Fair Housing Act (1968), and Executive Order 11256, creating affirmative action (1965). That order is the subject of an insightful new book that should lead us to ask many questions about race and discrimination today.

For Discrimination: Race, Affirmative Action, and the Law (Pantheon Books), the sixth book by the Harvard Law School professor Randall Kennedy, traces the twists and turns that have shaped the legal thinking, cultural arguments, and societal understanding of the role of law in the pursuit of racial justice in America.

Though not organized in a strictly chronological fashion, the book begins with the Civil Rights Act of 1866 (enacted primarily to protect the newly won freedom and rights of African-Americans) and continues through to contemporary struggles over affirmative action, most recently in the U.S. Supreme Court case Fisher v. University of Texas at Austin (although the book was written before Fisher was decided). This narrative arc provides Kennedy the opportunity to ask readers to consider how each legislative battle, legal ruling, and presidential veto both shaped and shifted conceptions of racial justice and equity.

We have, he concludes, moved from a period when the concept of racial justice under the law was most often invoked to protect the rights of African-Americans to a time today, when the legal justification for racial redress is often debated and decided on the basis of the case's impact on the civil rights of whites.

Explaining that complicated reality leads Kennedy to one of his more provocative ideas: It is time for supporters of affirmative-action programs to stop arguing that the policy does not discriminate against whites and only affirmatively helps black and Latino-Americans gain entry to college and professional programs. Affirmative action does discriminate----but it is justified, Kennedy writes, because its goal is to level a playing field that does not treat all players equally. (In Britain they call such policies "positive discrimination.")

Clearly the playing field is unequal when, for example, the stubborn persistence of residential segregation damages the educational, economic, and health outcomes of blacks and Latinos; and when the unemployment rate for blacks is almost double that for whites, and yet (according to Marked: Race, Crime and Finding Work in the Era of Mass Incarceration, a 2007 book by the sociologist Devah Pager), white men with criminal records are as likely to be awarded jobs as are black men with no such records. If from time to time correcting such imbalances requires that whites lose out, Kennedy believes that the ends, as they say, justify the means.

In short, he says, we need to ask ourselves a question: Is there any way to undo the impact of centuries of legally permitted discrimination against certain racial groups without leveling the playing field by discriminating against whites for a short while? In today's climate, such a challenge to the idea of a colorblind Constitution should attract more than a little attention.

Kennedy engages the arguments most commonly marshaled against affirmative action, often offering provocatively honest responses. The book begins with his sharing how he has benefited personally from affirmative action (at St. Albans School, Princeton University, Yale Law School), but denies that his self-concept has been crippled by a "scarlet letter" that marks black students as intellectually inferior, as some African-American critics, like Supreme Court Justice Clarence Thomas, have claimed.

Although Kennedy acknowledges that some members of minority groups might feel that way, he argues that for long periods of our nation's history, whites benefited from employment and educational opportunities that gave them preference because of their skin color. That, he points out, does not seem to have caused them undue psychological distress.

Kennedy also provides a much-needed counterpoint to some of the contemporary calls for swapping raced-based affirmative-action policies in higher education for a version focusing more specifically on class or economic status. He argues persuasively that, given demographics, such a policy would lead to fewer black and Latino students on college campuses. Because of the realities of inner-city education, there are simply more students who are white, poor, and academically prepared than who are black or Latino, poor, and ready for college. Kennedy does not want us to focus on increasing the presence of poor whites in college at the expense of racial diversity and integration.

The one somewhat surprising absence in the book lies in the fact that, because it was written after the oral arguments were presented in Fisher, but before the Supreme Court ruled on the latest challenge to affirmative action in higher education, there is no analysis of what the decision might mean for the future of such programs in the United States. In a narrow decision, the court vacated a lower-court ruling that had upheld race-conscious admissions but left the policy intact.

Kennedy made a number of predictions about what he thought the result would be and why (like many, he believed the court might well strike down affirmative action altogether), with no acknowledgment that we actually do know what happened. Had this book come out earlier, it might have had more impact on the discussion surrounding Fisher and affirmative action in general.

For Discrimination shows where we have come from in our conceptions of race and justice in the law, and where we are now. Kennedy acknowledges that race is a hard topic to discuss, and that the idea of race-conscious legal redress for discrimination is a difficult subject in the best of times. If there were some way to guarantee that all American citizens, irregardless [sic] of race, ZIP code, income, or status, could receive a guarantee of a world-class K-12 education, he says, the racial playing field might become level on its own. If so, we would no longer need programs and policies that offer broad solutions for racial inequality. In the clear absence of such a guarantee, however, we must continue to look to the law as an assurance that racial justice is still possible.

COMMENTS

aloofbooks
n 18 hours ago

The fact is that affirmative action is needed in both higher education as well as in the larger society. Period. The fact is that many groups, children alumni, athletes, the disabled etc... have and continue to benefit from preferences. In fact, the group that benefits the most from affirmative action is White women.

The While adding a class based component to affirmative action should be welcomed, the undeniable fact is that all evidence demonstrates the fact that we have not reached anywhere near a level playing field. To quote former President Bill Clinton in a national speech he delivered to the nation in 1995 defending affirmative action "the evidence shows, in fact, it screams that we have not reached equality." Almost twenty years later, the situation still remains largely the same.

S.Williamson aloofbooks
n 2 hours ago

mbelvadi
n 10 hours ago

"Is there any way to undo the impact of centuries of legally permitted discrimination against certain racial groups without leveling the playing field by discriminating against whites for a short while?" I know many Americans believe so strongly in their Exceptionalism that they aren't willing to consider other countries' experiences as relevant, but on this topic, a close look at India is really appropriate. India had not centuries but literally millennia of extreme discrimination against what are now called the "scheduled castes" (e.g. "untouchables"), and enough people there understood that reverse discrimination would be needed to "level the playing field" that they were able to make quotas explicit national policy. While things are by no means level now, India has made social and economic progress with these policies far faster than the US has. And it had an untouchable President long before the US had a black one.

gerard_harbison
n 10 hours ago

I have watched as this liberal scheme has evolved over forty years. I have seen preferences given to my peers, and my children's peers. While I have never liked it, I have more-or-less accepted it.

Now, forty years on, we have achieved what? Some beneficiaries have developed popular subcultures that scorn the academic achievement to which they were given a fast track, and the liberal (old fashioned meaning) values that underpins the very idea of equality before the law. Others have enshrined Miley Cyrus as the embodiment of young womanhood. And when we observe the benefits of these preference programs are negligible, and they accrue largely to the already-privileged, we're told we need 'moar time' to make it all work.

I'm sorry, I'm not willing to subordinate the future of my grandchildren and my greatgrandchildren to the continuance of this folly.

Marc DePree
n 9 hours ago

"Kennedy does not want us to focus on increasing the presence of poor whites in college at the expense of racial diversity and integration." Motivated poor white kids will find their own way and it will make them stronger for it.

My boy and I watched John Huston’s The Red Badge of Courage again Sunday night. We’d first seen it three years ago, when he was 10. The occasion for watching it again was that he had had to read it for his class in communism, er, humanities/social studies, and write a paper on “courage” in Crane’s novel and another Civil War novel I’d never heard of, Shades of Grey.

By the way, the studio supposedly butchered Badge, but you could’ve fooled me. It’s a minor masterpiece, and features the best performance I’ve ever seen from Audie Murphy. Since the picture only runs 69 minutes, despite having been made by Oscar-winner John Huston, the studio must have cut it, but it must have cut entire scenes, because the scenes that are there, all make powerful sense.

Arthur Hunnicutt plays an older Union soldier, but it was a variation on the same rustic type he always played, as the successor to Gabby Hayes. At one point, Hunnicutt’s character, Bill Porter, says he’s never gone anywhere without his dog before.

Watch “The Hunt” just below, and then tell me that it’s a mere coincidence that Earl Hamner Jr. would write a script about a man who wouldn’t go anywhere without his dog, starring Hunnicutt. Even if you mistakenly disagree with me, it’s a beautiful story. I'd only seen it once, a good 40 years ago, and yet I almost perfectly remembered the second half.

[In “The Hunt,” the superstitious wife, as played by Jeanette Nolan, reminded me of someone. My boy showed the video to The Boss earlier today, and she loved it, exclaiming of the wife’s superstitions, “Dat’s real!”]

Oh, and keep some Kleenex handy, just in case.  

“The Hunt” first aired on January 26, 1962.  

Full credits.