* * *
aAppiah was echoing Justice Thurgood Marshall, who had previously insisted that “it is necessary in twentieth-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.” Regents of the University of California v. Bakke, 438 U.S. 265, 400 (opinion of Marshall, J.)
bThe federal government and the states were not acting in blatant violation of the United States Constitution when they permitted, encouraged, and participated in Negro slavery. By contrast, the federal government and the states did act in blatant violation of the United States Constitution when, even after the Reconstruction Amendments, they joined with private parties in imposing upon blacks and other racial minorities a cruel and all-encompassing pigmentocracy in which colored skin became the target for humiliation, calumny, ostracism, insult, deprivation, and violence.
cIn 1972, more than half of blacks entering elite colleges came from families in the bottom half of the socioeconomic distribution. By 1982 the proportion was down to a quarter. By 1992 the proportion was down to 8 percent. Two-thirds of the blacks at elite colleges in 1992 came from the top elite of the American socioeconomic distribution. Richard Sander and Stuart Taylor, Jr., Mismatch (2012), 248.
dIn South Africa, legislation provides that the absence alone of certain qualifications is an insufficient reason for declining to hire a person eligible for affirmative action. The employer “may not unfairly discriminate against a person solely on the basis of that person’s lack of relevant experience.” The employer must determine the candidate’s “capacity to acquire, within a reasonable time, the ability to do the job.” See South African Employment Equity Act, No. 55 of 1998. See also Daniel Sabbagh, “Affirmative Action,” in Michel Rosenfeld and Andras Sajo, eds., The Oxford Handbook of Comparative Constitutional Law (2012), 1131.
e“The most important purpose that can be served by ethnicity-based [positive discrimination] in admissions to [higher educational institutions] is not to redistribute educational opportunities from the rich to the poor. Instead it is to reduce identity-based differentials in access to the upper strata of a society, that is, to integrate the societal elite.” Thomas E. Weisskopf, “Rethinking Affirmative Action in Admissions to Higher Educational Institutions” in Zoya Hasan and Martha C. Nussbaum, eds., Equalizing Access: Affirmative Action in Higher Education in India, United States, and South Africa (2012), 48.
fSee Richard Kahlenberg, The Remedy: Class, Race, and Affirmative Action (1996). See also William Julius Wilson, The Bridge Over the Racial Divide: Rising Inequality and Coalition Politics (2001); Michael Lind, The Next American Nation: The New Nationalism & the Fourth American Revolution (1995); Robert L. Allen, Black Awakening in Capitalist America: An Analytic History (1969).
gSince the early 1970s, some progressive critics of affirmative action have muted their complaints. Dismissive of affirmative action when more radical alternatives seemed possible, they have become more sympathetic toward affirmative action as it has come under increasingly hostile pressure from the Right. See Jennifer Hochschild, “Affirmative Action as Culture War,” in Robert Post and Michael Rogin, eds., Race and Representation: Affirmative Action (1998), 348: “In the 1960s some on the left saw affirmative action as an individualistic sell-out, encouraging personal mobility … at the expense of structural transformation that would benefit the whole group. What happened to that view?”
hAmong commentators discussing the relationship of class to race in affirmative action policy, the one from whom I have learned the most is Professor Deborah Malamud. See “Class Privilege in Legal Education: A Response to Sender,” Denver University Law Review 88 (2011): 729; “Affirmative Action, Diversity, and the Black Middle Class,” University of Colorado Law Review 68 (1997): 939; “Class Based Affirmative Action: Lesson and Caveats,” Texas Law Review 74 (1996): 1847.
iShouldn’t one wonder about the efficacy of publicly announcing “a hidden agenda”?
jFor a fuller discussion of Bakke, see this page.
kThe management of Coca-Cola has said that it regards “diversity in the background of talent of [its] associates as a competitive advantage.” Similarly, the management of the Chrysler Corporation remarked that “workforce diversity” was its “competitive advantage,” cautioning that its “success as a global community [was] as dependent on utilizing the wealth of backgrounds, skills and opinions that a diverse workforce offers as it [was dependent] on raw materials, technology, and processes.” Quoted in Sanford Levinson, Wrestling with Diversity (2003), 22.
l“The diversity model offers a non-stigmatizing account of why members of targeted racial groups are preferred: they bring valuable features to the institution—epistemic diversity—that advance the institution’s mission. This is a meritocratic rationale, which represents the targets of affirmative action as contributing, deserving agents rather than pitiful subjects of an institution’s beneficence. It gives other participants positive reasons to value the presence of affirmative action’s beneficiaries.” Terry H. Anderson, The Pursuit of Fairness: A History of Affirmative Action (2004), 142.
mUnder the diversity rationale, the preferred applicant “does the institution a favor, enriches the institution, brings to it the positive asset of new perspectives. The diversity rationale thus frees affirmative action from its ‘necessary evil’ label.…When diversity is the rationale, the institution needs the applicant more than the applicant needs the institution.” Rodney A. Smolla, “Affirmative Action in the Marketplace of Ideas,” Arkansas Law Review 44 (1991): 935–36.
nSee, e.g., Brief of Abigail Thernstrom, Stephen Thernstrom, Althea K. Nagai, and Russell Nieli as Amici Curiae in Support of Petitioners, Fisher et al v. University of Texas at Austin, Supreme Court of the United States (2012); Brian N. Lizotte, “The Diversity Rationale: Unprovable, Uncompelling,” Michigan Journal of Race and Law 11 (2005): 625.
oChief Justice Warren informed his colleagues that he planned to write an opinion that was “short, readable, unemotional and, above all, non-accusatory.” Quoted in Dennis J. Hutchinson, “Unanimity and Desegregation: Decision-making in the Supreme Court, 1948–1958,” Georgetown Law Journal 68 (1979): 1, 42.
pThe Court’s misleading handling of history is even more pronounced in its famous ruling in Loving v. Commonwealth of Virginia, 388 U.S. 1 (1967) invalidating state laws that prohibited interracial marriage. See Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity and Adoption (2003), 249–54.
qObjecting to the Kennedy administration’s decision to base constitutional authority for the Civil Rights Act on the Commerce Clause rather than the Fourteenth Amendment, Professor Gerald Gunther complained that the “proposed end-run … suggests an inclination toward disingenuousness, cynicism, and trickery as to constitutional principles [by the] Law Department of the United States.” Quoted in Christopher W. Schmidt, “The Sit-Ins and the State Action Doctrine,” William & Mary Bill of Rights Journal 18 (2010): 767, 811.
rSee the excellent exploration of this subject by David L. Shapiro, “In Defense of Judicial Candor,” Harvard Law Review 100 (1987): 731.
sI have contributed to the “excessively self-congratulatory individualism” to which I refer. See Randall Kennedy, “My Race Problem—and Ours,” The Atlantic Monthly, May 1977, and “Racial Critiques of Legal Academia,” Harvard Law Review 102 (1989): 1745.
tInveighing against an affirmative action plan at the University of Michigan Law School, Justice Thomas wrote: “It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination [by which Thomas means affirmative action]. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving.” Generalizing his point, Thomas asserted that when blacks t
ake positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma. Grutter v. Bollinger, 539 U.S. 306, 373 (2003) (Thomas, J., dissenting).
uRace also played a part in President Lyndon B. Johnson’s decision to nominate Marshall. Publicly, Johnson refrained from saying expressly that race mattered in the selection, maintaining simply that Marshall was “the right man at the right time.” In private, Johnson was more candid. Responding to an aide’s suggestion that he consider another black jurist, Judge A. Leon Higginbotham, Johnson reportedly declared: “The only two people who have ever heard of Judge Higginbotham are you and his momma. When I appoint a nigger to the [Supreme Court] I want everyone to know he’s a nigger.” Quoted in Robert Dallek, Flawed Giant: Lyndon Johnson and His Times, 1961–1973 (1998), 44.
vOne might retort that the exploratory phone call, though reflective of skepticism exacerbated by affirmative action, still constitutes real progress. The candidates I recommended did get the jobs. But for the halos put over their heads with the help of affirmative action, they might not have received any serious consideration. After William T. Coleman, Jr., graduated from Harvard Law School at the top of his class and worked as a clerk to Supreme Court Justice Felix Frankfurter, he still found it difficult to secure employment, notwithstanding his outstanding record, because of the stigma attached to his status as a Negro. The stigmatization of blacks competing for highly valued positions far predates the modern affirmative action controversy. See William T. Coleman, Jr., Counsel for the Situation: Shaping the Law to Realize America’s Promise (2012): 73–74.
wPerhaps there should be an opt-out mechanism available for those who would prefer to forgo the benefits and burdens of being an affirmative action beneficiary. The extent to which such an opt-out is invoked would provide useful information about calculations of potential beneficiaries.
x“It is somewhat ironic to have us so deeply disturbed over a program where race is an element of consciousness, and yet to be aware of the fact, as we are, that institutions of higher learning … have given conceded preferences … to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largesse on the institutions, and to those having connections with celebrities, the famous, and the powerful.” Justice Harry Blackmun, concurring and dissenting in Bakke, 438 U.S. 265, 404 (1978).
yThings could be worse. In Malaysia, criticizing that country’s analogue of affirmative action is a criminal offense punishable by up to three years in prison. See Daniel Sabbagh, “Affirmative Action,” in Michel Rosenfeld and Andra Saja, eds., The Oxford Handbook of Comparative Constitutional Law (2012), 1130.
zThis position is suggested by, and consistent with, the riposte to Sander written by Professor David B. Wilkins, “A Systematic Response to Systemic Disadvantage: A Response to Sander,” Stanford Law Review 57 (2005), 1915.
aaThe federal government, states, and municipalities have established programs designed to boost the fortunes of firms owned by racial minorities and women. Some of these programs have been beset by fraud. Instead of claiming falsely that they are minorities or women, malefactors in this area fabricate minority or women fronts. See James Traub, Too Good to Be True: The Outlandish Story of Wedtech (1990).
abSee, e.g., Sean Sullivan, “The Fight over Elizabeth Warren’s Heritage Explained,” Washington Post, September 27, 2012; Noah Bierman, “Scott Brown Launches Ad About Elizabeth Warren’s Native American Controversy,” Boston Globe, September 24, 2012; Gerance Franke-Ruta, “Is Elizabeth Warren Native American or What?” The Atlantic, May 20, 2012.
acIn 1990 opponents and proponents of a contested program of “compensatory discrimination” in India immolated themselves, massacred adversaries, rioted, boycotted classes, blocked traffic, and engaged in many other sorts of disruptive behavior. The protests and counter-protests played a large role in bringing down the government of Prime Minister V. P. Singh. See E. J. Prior, “Constitutional Fairness or Fraud on the Constitution? Compensatory Discrimination in India,” Case Western Reserve Journal of International Law 64 (1996): 63–69.
Violence has bedeviled programs of positive discrimination in other countries as well including Malaysia, Sri Lanka, and Nigeria. See Thomas Sowell, Affirmative Action Around the World: An Empirical Study (2004). That is not to say that positive discrimination caused the violence. A response to racial and ethnic division, affirmative action in some places likely lessened violence that would have been worse in its absence.
adIt bears noting that in this case, Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), the Mexican American Legal Defense and Educational Fund (MALDEF) submitted an amicus curiae brief supporting the defendant scholarship program.
aeSee Deborah C. Malamud, “The Jew Taboo: Jewish Difference and the Affirmative Action Debate,” Ohio State Law Journal 59 (1998): 915; Daniel A. Farber and Suzanna Sherry, “Is the Radical Critique of Merit Anti-Semitic?” California Law Review 83 (1995): 853.
af“It is easy to get sidetracked by the problem of identity posed by the rich contemporary theoretical literature on the construction of identity and the amazing proliferation of mixed-race and mixed-identity families. However, one should not lose sight of the fact that there are many minority candidates—especially African Americans—whose cultural identity is not a matter of real dispute.” Paul Brest and Miranda Oshige, “Affirmative Action for Whom?” Stanford Law Review 47 (1995): 855, 876–77.
ag“Supporters of affirmative action … would surely favor more extensive programs if they were politically feasible. The problem is that they are not politically feasible. At the moment affirmative action happens to be the best we can get.” James P. Sterba, “Completing Thomas Sowell’s Study of Affirmative Action and Then Drawing Different Conclusions,” Stanford Law Review 547 (2004): 657. Throughout this book I have leaned on the work of Professor Sterba, particularly his contribution (alongside Carl Cohen) to the outstanding volume Affirmative Action and Racial Preference: A Debate.
3.
The Color-Blind Challenge to Affirmative Action
“Color blindness” is a key idea in American life. It is probably the most popular conception of what is thought to be commendable racial thought and conduct. It stands for the proposition that race ought to play no role in assessing individuals—that race ought to be absent from any calculation determining whether a person is detained by police or sent to prison, tapped for a promotion or picked for an orchestra, chosen for jury service or selected by a university. Some see color blindness as a long-range aspiration that should not be demanded immediately. They say that they yearn for the day when race has sunk into utter irrelevancy but contend that comprehensive color blindness immediately is premature. They associate themselves with Justice Harry Blackmun’s statement that “in order to get beyond racism, we must first take account of race.”1 This is the camp of the color-blind gradualists. Other proponents of color blindness are immediatists. They insist that in order to make race irrelevant, one must make it irrelevant now. Chief Justice John Roberts reflected the sentiments of that camp when he and a majority of the justices voted to strike down a racially selective student assignment plan instituted to retain racial balance. “The way to stop discrimination on the basis of race,” Roberts insisted, “is to stop discriminating on the basis of race.”2 Another color-blind immediatist, Professor William Van Alstyne, put it this way: “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one’s government—the differential treatment of other human beings by race.” That, according to Van Alstyne, “is the great lesson for government itself to teach: in all we do in life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong.”a 3
Immediatists come in at least two var
ieties. One views all forms of racial discrimination, including affirmative action, as having always been illicit. A second views affirmative action as having been useful as a needed expedient in the late 1960s and early 1970s, but also as an intervention that became disastrously entrenched, requiring uprooting.b There is a consensus among immediatists, however, that whatever the proper status of affirmative action in the past, it should have no place in American life today.
To take the measure of color blindness, especially as it relates to affirmative action, I chart its history, note its attractions, and posit its weaknesses. I conclude that, as an aspiration and strategy, color blindness is misconceived.c
Race, Affirmative Action, and the Law Page 15