Race, Affirmative Action, and the Law

by Randall Kennedy

  As a result of this redefinition … many of the nation’s laws incorporating the non-discrimination principle of equal treatment have, in Orwellian fashion, been turned on their heads to effectively require the very behavior that they proscribe—the color and gender-conscious treatment of individuals—so that statistically proportionate representation or results for groups might be achieved. In short, through this redefinition of discrimination, the rights of individuals to equal treatment have been subordinated to a new right of proportional representation for groups.p 54

  Despite its sharp criticism of disparate impact, the Report to the Attorney General posited no corrective action to be taken. The critique, however, proved to be an influential force in its own right. Several years later, the Supreme Court cut back on disparate impact, animated by anxieties of the sort expressed by the report. When Congress responded with legislation that essentially codified Griggs, President George H. W. Bush vetoed the legislation, calling it a “quota bill” on the very grounds articulated by the report to Attorney General Meese. President Bush subsequently signed a legislative compromise. But that, of course, did not still the color-blind immediatist attack on disparate impact.q

  The Supreme Court has thus far avoided confronting the constitutionality of disparate impact. But, as Justice Scalia notes, it has “merely postpone[d] the evil day on which the Court will have to confront [that] question.”55 His position is no secret. “Title VII’s disparate impact provisions place a racial thumb on the scales,” he notes,

  often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is … discriminatory.…The government must treat citizens as individuals, not as simply components of a [racial] class.…And, of course, the purportedly benign motive for the disparate-impact provisions cannot save the statute.56

  Color-blind immediatism could end up devouring more than explicitly racial affirmative action and disparate-impact antidiscrimination law. It theoretically threatens old-fashioned disparate-treatment antidiscrimination law as well as programs like Texas’s Top Ten Percent Plan that say nothing about race on their face but were proposed for the purpose of assisting racial minorities. Many observers see traditional antidiscrimination laws as fundamentally different in kind from affirmative action and thus wholly insulated from the objections of immediatist color-blind constitutionalism. Like affirmative action, however, the ban on racial-disparate treatment—intentionally disfavoring a person because of his race—also requires race consciousness. A simple charge of racial-disparate treatment requires a court or other adjudicator to identify the race of the plaintiff, or at least the perceived race of the plaintiff. Furthermore, the aim to redistribute resources along racial lines was the primary legislative purpose behind Title VII and similar statutes. Prior to Title VII, racially unregulated employment markets severely disadvantaged black workers even when they possessed skills and education comparable to white competitors. To assist black workers, within the confines of equal opportunity competition, was the primary aim animating the coalition that ultimately succeeded in passing Title VII. Some in this coalition might have been more interested in other things—economic efficiency, social stability, the international image of the United States, appearing to be enlightened, electoral calculation, paying off a political debt, etc., etc., etc. But the main publicly expressed purpose of the law was specifically to assist black Americans. Yet that aim is illicit according to certain strains of color-blind immediatism. There is little chance that immediatists will challenge, much less dislodge, disparate-treatment antidiscrimination law. Regardless of the collective intent with which it was conceived, disparate-treatment law is widely viewed now as color blind, or at least race neutral, and uncontroversial. It is simply too deeply embedded for anyone to attack without incurring discredit.r 57

  More vulnerable are policies, like the Texas percentage plan, that are race-silent on their face but established primarily for reasons of racial redistribution. Following a court decision barring racial affirmative action at the University of Texas, the Texas legislature enacted a plan under which any student in the top 10 percent of his or her high school graduating class became automatically eligible for admission to any Texas public university. This legislation was proposed and passed for the publicly expressed purpose of recovering at least some of the racial diversity lost on account of the abolition of the more conventional affirmative action program under which race had been explicitly counted as a plus by admissions officials.s

  The Top Ten Percent Plan is widely dubbed “race neutral,” in that race is absent from criteria of eligibility. More whites than Latinos or blacks obtain entry to the university through this program. But is it “race blind”? It is difficult to see how that label can be applied to a program that was established for the purpose of doing in a roundabout way what the invalidated affirmative action plan had done more directly by explicitly counting minority status as a plus in the admissions competition. The Top Ten Percent Plan arose from a keen concern with the racial demographics of admitted students at the University of Texas, not from a race-blind indifference to those demographics. Moreover, if under present conditions the racial shoe were on the other foot, if the Texas legislature passed a law for the purpose of increasing the number of white students admitted to the university system, opponents would rightly label the law an exercise in illicit racial discrimination. Race would be absent from the face of the policy but deeply present right beneath the surface, as intended by the law’s authors. We have seen such laws before: they were a staple of the Jim Crow era. The “grandfather” clauses in disenfranchising voting laws, for example, said nothing expressly about race when they excused from new registration requirements people whose grandfathers had been eligible to vote before the Civil War. Everyone knew, however, the purpose of the grandfather clause: to excuse whites (whose grandfathers could vote prior to the Civil War) while subjecting to new burdens blacks (whose grandfathers were ineligible to vote prior to the Civil War).58

  Policies that are silent as to race but initiated for the purpose of establishing or maintaining a racial advantage for whites are invalidated nowadays on the grounds that they violate the constitutional prohibition against government action motivated by race that cannot meet the standard of judicial strict scrutiny.59 Why, then, are policies like the Texas Top Ten Percent Plan allowed to stand? The reason is that rigorous immediatist color-blind constitutionalism is not yet fully ascendant. Even some immediatists are willing to countenance racially motivated percentage plans so long as in form they are silent as to race. President George W. Bush’s solicitor general objected to the affirmative action programs at the University of Michigan that explicitly used racial selectivity to achieve diversity but welcomed “race neutral” programs designed to accomplish the same goal.60 Justice O’Connor condemned the racially explicit set-aside program that was invalidated in City of Richmond v. Croson, complaining of, among other things, the absence of “any consideration of the use of race-neutral means to increase minority business participation in city contracting.”61 Returning to this point in Grutter, O’Connor, on behalf of the Court, declared that narrow tailoring of affirmative action programs requires “serious, good faith consideration of race-neutral alternatives that will achieve [diversity].”t 62 The Court voiced the same belief in Parents Involved v. Seattle School District No. 1. Invalidating the racial classification in dispute, the Court noted disapprovingly that the defendants had “failed to show that they considered methods other than explicit racial classifications to achieve their stated goals.”63 Clearly, in other words, the Court, including even its most conservative members, has suggested that there are no equal protection problems raised by policies that aim to assist racial minorities but deploy no express racial classifications in doing so.

  On the other hand, some color-blind immediatists are already laying siege to policies such as the Texas perc
entage plan—policies they see as racially motivated affirmative action that is merely disguised. Hence, Professor Brian T. Fitzpatrick contends that “when government actors attempt to gerrymander racial results by race-neutral means … these efforts are often no more legal than the explicit racial discrimination that they are trying to avoid.”64 Ward Connerly objects as well. “It is not the legitimate business of government in America,” he writes, “to promote ‘diversity.’ ”

  When the government uses “race-neutral” means to achieve a desired racial outcome instead of explicit race preferences, the two approaches become a distinction without a difference. The deliberate pursuit of racial diversity by either race-neutral means or “quotas’ ” is the antithesis of ensuring that individuals are guaranteed freedom from government discrimination and then letting the chips fall where they may.65

  Similarly opposed is Roger Clegg, an immediatist activist who is general counsel of the Center for Equal Opportunity, a leading proponent of color-blind constitutionalism. Most percent plans, he complains, are discriminatorily motivated ruses featuring “jiggled admissions criteria with an eye on racial outcomes.” That attentiveness to racial outcomes, he maintains, is their flaw, because “decisions should be made without regard to racial and ethnic winners and losers.” In his view, “the benign neglect of race is long overdue.”66

  The espousal of racial laissez-faire expressed by Gregg and Connerly highlights the biggest drawback of immediatist color blindness: its equanimity in the face of a social structure still terribly disfigured by past and ongoing racial wrongs. In every aspect of American life, racial differentials in well-being don’t just exist—they erupt, showering the social landscape with stark, familiar patterns: average white life spans that are four to six years longer than those of blacks, black infant mortality rates that are twice those of whites, black poverty rates that are double those of whites; a black-white ratio of incarceration that is eight-to-one; a situation in which, for every dollar of wealth held by a typical white family, the typical black family holds a dime.67

  Ward Connerly says, “Let the chips fall where they may,” as if where they will fall is a mystery unconnected to the past and dependent only upon individuals’ pluck and luck. Clarence Thomas says much the same thing. At the beginning of his dissent in the University of Michigan Law School affirmative action case, Justice Thomas espouses a social Darwinist message that he fashions in words spoken in 1865 by Frederick Douglass:

  What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us.…I have had but one answer from the beginning. Do nothing with us! … If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! [Y]our interference is doing him positive injury.u 68

  We know, however, where the chips will fall in a laissez-faire regime governed by benign neglect of racial inequity: they will fall in favor of whites who continue to benefit in innumerable ways from a long train of beliefs, habits, practices, and institutions that systematically privilege Euro-Americans and that systematically disfavor “others,” especially blacks, Latinos, and Native Americans. In the face of that daunting reality, more is required than adherence to a merely procedural color blindness. What is required is a commitment to racial justice that unavoidably entails the racial redistribution of scarce resources.

  My remarks thus far have mainly addressed immediatist color blindness, the version that would abolish affirmative action now. What about the version that grudgingly tolerates affirmative action for now but views it distastefully as morally and legally tainted? That is the version of color blindness that Justice O’Connor expressed in her Grutter opinion, asserting that “race-conscious admissions policies must be limited in time” because, after all, “a core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” That version of color blindness ought also to be rejected. What should be recalled—though it is difficult to do so, given the salience, popularity, and prestige of the color-blindness mantra—is a point made by Professor Paul Freund years ago: that the constitutional mission of the Fourteenth Amendment is the establishment of equal protection, not of color blindness.69

  The strategy of disregarding race—color blindness—is a methodology that can, in appropriate circumstances, serve as a tool helpful for attaining equal protection. It should not, however, be elevated to the rank of a purpose, a principle, a goal in and of itself. The strategy of disregarding race can be used for good. But it can also be used for bad, to cover up injustice. Recall that, textually, the United States Constitution of 1787–1864 said nothing expressly about race. It was thus, in an important sense, race blind—even while it countenanced racial slavery and all manner of other forms of racial mistreatment. Only when race was expressly mentioned in the revolutionary legislation and constitutional provisions of Reconstruction did the U.S. legal order challenge American pigmentocracy.

  Finally, I note that it is odd that so many have staked so much on a figure of speech that celebrates a disability.v Some people are truly color blind: they cannot distinguish colors. But they ought not be happy about this; their incapacity is a bane. It is past time to come up with a new metaphor that will better serve our desire to create within our multiracial society a more perfect union—one decidedly more fair than what we have today.

  * * *

  aVan Alstyne does not explicitly say that he would favor prohibiting private affirmative action. I am making the inference that he would, given the militancy with which he denounces all racial discrimination, positive as well as negative.

  b“As we pull the plug on preferential policies, we should remind ourselves that such policies have done more to change the culture of employee recruitment practices and to change the composition of the workforce in a relatively short period than any other approach imaginable.” Ward Connerly, “Affirmative Action Programs, Race Relations, and the CCRI,” Nexus 1 (1996): 10.

  cWritings on this subject I found to be especially instructive include Ian Haney-Lopez, “ ‘A Nation of Minorities’: Race, Ethnicity, and Reactionary Colorblindness,” Stanford Law Review 59 (2007): 985; Barbara J. Flagg, “ ‘Was Blind, But Now I See’: White Race Consciousness and the Requirement of Discriminatory Intent,” Michigan Law Review 91 (1993): 953; Neil Gotanda, “A Critique of ‘Our Constitution is Color-Blind,’ ” Stanford Law Review 44 (1991): 1; David A. Strauss, “The Myth of Colorblindness,” Supreme Court Review 1986 (1986): 99; Laurence H. Tribe, “In What Vision of the Constitution Must the Law Be Color-Blind?” John Marshall Law Review 20 (1986): 201.

  dAlbion Winegar Tourgée was a remarkable figure who helped establish Bennett College, an historically black women’s institution, wrote novels dramatizing the tribulations of Reconstruction, and initiated the National Citizen’s Rights Association, which supported the challenge to segregation in Plessy v. Ferguson. See Mark Elliott, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (2006); Otto Olsen, Carpetbagger’s Crusade: The Life of Albion Winegar Tourgée (1965).

  eAlthough Tourgée’s color blindness trope is the most influential aspect of his brief, the most cogent (and, unfortunately, overlooked) is the part in which he urges the justices to trade places with blacks for purposes of assessing the real meaning of the “equal but separate” requirement for railway accommodations: “Suppose a member of this court, nay, suppose every member of it, by some mysterious dispensation of providence should wake up tomorrow with a black skin and curly hair … and in traveling through the part of the country where the ‘Jim Crow Car’ abounds should be ordered into it by the conductor. It is easy to imagine what would be the result, the indignation, the protes
ts, the assertion of pure Caucasian ancestry. But the conductor, the autocrat of Caste, armed with the power of the State conferred by this statute, will listen neither to denial or protest.…What humiliation, what rage would then fill the judicial mind!” Brief for Plaintiff in Error, Plessy v. Ferguson (1896), Supreme Court of the United States, Philip B. Kurland, Gerhard Coasper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, volume 13 (1975), 62–63.

  fAccording to Professor Neil Gotanda, Harlan “was arguing that the white race was clearly superior to the black race in civil society … and did not need the government support of Jim Crow segregation laws to maintain white racial hegemony.…He was content to allow racial privilege to continue, so long as basic civil rights were maintained on a nonracial basis.” “Failure of the Color Blind Vision: Race, Ethnicity, and the California Civil Rights Initiative,” Hastings Constitutional Law Quarterly 23 (1996): 1135, 1150. See also Gotanda, “A Critique of ‘Our Constitution Is Color Blind,’ ” Stanford Law Review 44 (1991): 1. Laurence H. Tribe, “In What Vision of the Constitution Must the Law Be Color-Blind?” John Marshall Law Review 20 (1986) (“Perhaps it is anachronistic and even unfair to stress too heavily the manifest racism in Justice Harlan’s full statement”).