Harvard Law’s Randall Kennedy: Still Inscrutable

Back in 2003 I wrote a longish post on The Inscrutable Randall Kennedy. Kennedy, I began that post (noting that I had met him several times and that we share a good mutual friend),

is both a prominent and an impressive law professor at Harvard who has written both widely and deeply about race and the law. He is perhaps best known for his general support of color blindness in such areas as jury selection, where he has argued against insuring racial balance, and adoption, where he defends cross-racial adoption. These views are not common among tenured black law professors at leading law schools, and Kennedy has been roundly denounced by Derrick Bell, among others, who calls him “a critic of blacks,” and worse.

In addition to a big book arguing these themes, Race, Crime, and the Law (Pantheon, 1997), Kennedy has also written a number of controversial articles, such as “My Race Problem — And Ours” (Atlantic Monthly, May 1997), in which he argues against racial pride, racial loyalty, racial kinship, and even racial identity, celebrating instead what the philosopher Michael Sandel criticizes as “the unencumbered self.” Kennedy thus embraces what Sandel rejects as “shallow liberalism.”

Freed from the sanctions of custom and tradition and inherited status [Kennedy is quoting Sandel here], unbound by moral ties antecedent to choice, the self is installed as sovereign, cast as the author of the only obligations that constrain.

I called Kennedy “inscrutable” because I could not understand “how he can be so eloquent in opposing ‘taking race into account’ in so many of his writings, and equally eloquent in defending overt racial preferences in admissions and hiring in other places.”

Examples from some of those writings:

• I disapprove of most forms of public affirmative action myself, on the premise that public authorities shouldn’t be permitted to allocate burdens and benefits on racial grounds in the absence of an absolute emergency. (Reviewing Abigail and Stephan Thernstrom, America in Black and White in SLATE, 10/14/1997).
• Opposing restrictions on cross-racial adoptions… under our law, the drawing of racial distinctions, particularly by government officials, is and should be presumptively illegitimate…. Typically … , our legal system rightly prohibits authorities from making decisions on the basis of racial generalizations, even if the generalizations are accurate. [Opposing the Metzenbaum bill, which expressly permitted adoption agencies to use race in placing children, “Orphans of Separatism“, The American Prospect, December 2001).
• Opposing required racial balance on juriesI’m against the deployment of racial distinctions in the law to create racially mixed juries. I’m for a strong and vigorously enforced anti-discrimination norm so that nobody is excluded on a racial basis. After that, I say, that’s enough. (Interview with Mother Jones, July 1997
• Opposing racial profiling by policeTaking race into account at all means engaging in racial discrimination. [This follows several paragraphs where Kennedy takes issue with those who argue that lack of a bad intent, or the presence of non-discriminatory motives, or even the reasonableness of the action can justify taking race into account.]
  

  A disturbing feature of the debate over racial profiling is that many people, including judges, are suggesting that decisions distinguishing between persons on a racial basis do not constitute unlawful racial discrimination when race is not the sole consideration prompting the disparate treatment…. This dilution of the meaning of discrimination is troubling not only because it permits racial profiling to continue…. Even worse, this concession will likely seep into other areas of racial controversy, causing mischief along the way. [“Will likely seep???? Hellloooo. Looked at admission policy lately? — jsr] … individuals should be judged by public authority on the basis of their own conduct and not on the basis —not even partly on the basis — of racial generalization.

  [Politicians must do more than end bigotry.] They must be willing to demand equal treatment before the law even under circumstances in which unequal treatment is plausibly defensible in the name of nonracist goals. (“Suspect Policy,” The New Republic, Sept. 20, 1999).

• Ubiquitous inconsistency
  

  Vocal supporters of racial profiling who trumpet the urgency of communal needs when discussing law enforcement all of a sudden become fanatical individualists when condemning affirmative action in college admissions and the labor market. Supporters of profiling, who are willing to impose what amounts to a racial tax on profiled groups, denounce as betrayals of “color blindness” programs that require racial diversity. A similar turnabout can be seen on the part of many of those who support affirmative action. Impatient with talk of communal needs in assessing racial profiling, they very often have no difficulty with subordinating the interests of individual white candidates to the purported good of the whole. Opposed to race consciousness in policing, they demand race consciousness in deciding whom to admit to college or select for a job. [“Racial Profiling,” Atlantic Monthly, April 2002]

The occasion for my former post was the then-latest exhibit of Kennedy’s confusing inscrutability, an article on “Affirmative Reaction” in the March 2003 American Prospect in which he blasted “right-wing enemies of affirmative action” and concluded with a ringing defense of “positive discrimination on behalf of racial minorities in higher education” because discrimination in favor of minorities is

an important, albeit merely partial, way in which our society is attempting to repair the gaping wounds caused by innumerable racist actions and inactions that have fundamentally betrayed America’s most noble aspirations. Hopefully the policy will survive the right’s grotesque attempt to strangle it judicially in the name of equality.

Go, in effect I urged readers, figure. What, I wondered, is the principle that rejects racial preference, seemingly on principle, there and there and there while vigorously defending it here and here.

I still wonder because Kennedy is still inscrutable. So far as I know he has never rejected his eloquent objections to many racial preference policies while continuing strenuously to defend others, such as in his article a week ago in The American Prospect, “The Enduring Relevance of Affirmative Action,” where he argues that affirmative action was on the ropes until it was rescued by the brilliant “diversity rationale.”

The rise of the diversity rationale for affirmative action has not been costless, but it has ensured that appreciable numbers of racial minorities are in strategic positions, while dampening certain side effects that attend any regime of racial selectivity. Unlike affirmative action based on grounds of compensatory justice, the diversity rationale is non-accusatory. It doesn’t depend on an assumption of culpability for some past or present wrong, and it minimizes the anger ignited when whites are accused of being beneficiaries of racial privilege. Everyone can be a part of diversity.

Since what the “diversity rationale” rationalizes is the same old ramshackle multi-room mansion of racial preference policies with a fresh coat of paint (or worse, a Potemkin Village false front), Kennedy’s defense of “diversity” skirts very close to — if it does not in fact amount to — a glorification of clever deception.

Many are drawn to the diversity rationale because it frames affirmative action not as special aid for designated groups but as a way of producing better services and products….

The diversity rationale also facilitates the evasion of prickly subjects — for instance, the fact that racial minorities selected for valued positions sometimes have records that, according to certain criteria such as standardized tests, are inferior to those of white competitors.

First, note well Kennedy’s argument that the diversity rationale frames affirmative action. As I’ve argued too many times to cite, liberals are certain that whenever they lose an argument it is not because the substance of their argument is poor but because they have “framed” it poorly. (See, for a few examples, “Framed” Again, Is This ‘Frame/ Slanted?, “Framing” Redux, “Framing” Redux Redux.)

Next, note that Kennedy actually acknowledges that the diversity rationale doesn’t respond to the objections to affirmative action, which he helpfully summarized earlier in his article:

Conservatives charged that affirmative action amounts to “reverse racism”; discriminates against “innocent whites”; stigmatizes its putative beneficiaries; erodes the incentives that prompt individuals to put forth their best efforts; lowers standards; produces inefficiencies; goes to those racial minorities who need it least; and generates racial resentments.

Aside from the scare quoted terms, this is not a bad summary of some objections, and how does the “diversity rationale” meet them? By facilitating their “evasion.”

Kennedy does attempt, lamely I think, to look on the bright side of “diversity,” but I believe it falls flat.

The diversity rationale moves the spotlight from the perceived deficiencies of racial minorities to their perceived strengths. Unlike other justifications for affirmative action that seek to make exceptions to meritocracy, the diversity rationale is consistent with meritocratic premises. This is the most striking and historically significant aspect of affirmative action: It enables racial-minority status for the first time in American history to be seen as a valuable credential. Instead of the presence of blacks and other racial minorities constituting an expiation of past sins, the diversity rationale makes their presence a welcome and positive good.

At least Kennedy says perceived strengths rather than strengths, but he doesn’t say what those perceptions perceive.

The best thing that I can think of to say about Kennedy’s argument here is that most of Kennedy’s other writings demolish it and the principle-less puff it rides on. About Kennedy himself something better can be said: the slippery way the argument is stated suggests the possibility that even he doesn’t believe it. First, his defense is always of “the diversity rationale,” not diversity itself, which might require a substantive definition and argument. Next, it “moves the spotlight” to perceived strengths, not actual strengths that again would have to be identified. Finally — and this is its “most striking and historically significant aspect” — the diversity rationale enables minority status to be seen as a “meritocratic” credential.

The fact that the intellectual core of American liberalism has become so degraded that its leading lights can with a straight face point to “minority status,” i.e., pigmentation and nothing more, as a “meritocratic” credential is depressing enough, but that Kennedy himself, who has so powerfully criticized the racializing of merit and even of identity itself, can do so is truly astounding.

This whole argument, in short, is devoid not only of principle — why is this racial profiling just but other racial profiling not? — but even of any actual substance. Forget about “the diversity rationale” frame; what about diversity itself? What is it that justifies the racial discrimination done in its name? What exactly are the “strengths” that it allows to be perceived, the meritocratic credentials that it allows to be seen?

Not only do I still find Kennedy inscrutable, but this tepid defense of “the diversity rationale” makes him even more inscrutable than he was before. That’s because, as I read his long list of trenchant, perceptive criticisms of taking race into account in criminal law, in juries, in adoptions, on the highways and in airports, and especially, in “My Race Problem — And Ours” (linked above), I think both “diversity” and its “rationale” not only contradict but actually violate the deepest concerns that I saw in those critiques.

Consider the Kennedy who shines forth from that noteworthy article:

Neither racial pride nor racial kinship offers guidance that is intellectually, morally, or politically satisfactory….

I ESCHEW racial pride because of my conception of what should properly be the object of pride for an individual: something that he or she has accomplished. I can feel pride in a good deed I have done or a good effort I have made. I cannot feel pride in some state of affairs that is independent of my contribution to it. The color of my skin, the width of my nose, the texture of my hair, and the various other signs that prompt people to label me black constitute such a state of affairs. I did not achieve my racial designation. It was something I inherited — like my nationality and socio-economic starting place and sex — and therefore something I should not feel proud of or be credited with….

I REJECT the notion of racial kinship. I do so in order to avoid its burdens and to be free to claim what the distinguished political theorist Michael Sandel labels “the unencumbered self.” The unencumbered self is free and independent, “unencumbered by aims and attachments it does not choose for itself,” Sandel writes…. [Kennedy embraces what Sandel rejects.]

One defense of racial kinship takes the shape of an analogy between race and family….

…. I want to accept the race-family analogy in order to strengthen my attack on assumptions that privilege status-driven loyalties (the loyalties of blood) over chosen loyalties (the loyalties of will)….

Am I saying that, morally, blood ties are an insufficient, indeed bad, basis for preferring one’s genetic relatives to others? Yes….

SOME contend … that the reason one should feel morally compelled by virtue of one’s blackness to have and show racial solidarity toward other blacks is that preceding generations of black people did things animated by racial loyalty which now benefit all black people…. I agree that one should be grateful to those who have waged struggles for racial justice, sometimes at tremendous sacrifice. But why should my gratitude be racially bounded?

THUS far I have mainly argued that a black person should not feel morally bound to experience and show racial kinship with other blacks. But what do I say to a person who is considering whether to choose to embrace racial kinship . . . ?

I contend that in the mind, heart, and soul of a teacher there should be no stratification of students such that a teacher feels closer to certain pupils than to others on grounds of racial kinship. No teacher should view certain students as his racial “brothers and sisters” while viewing others as, well, mere students. Every student should be free of the worry that because of race, he or she will have less opportunity to benefit from what a teacher has to offer. [Query: Shouldn’t all applicants also be free of this worry? — jsr]….

…. [I]t is said with increasing urgency by increasing numbers of people that the various social difficulties confronting black Americans are, for reasons of racial kinship, the moral responsibility of blacks, particularly those who have obtained some degree of affluence. This view should be rejected. The difficulties that disproportionately afflict black Americans are not “black problems” whose solutions are the special responsibility of black people. They are our problems….

A second reason why the justification for outreach matters is that unlike an appeal to racial kinship, an appeal to an ideal untrammeled by race enables any person or group to be the object of solicitude….

…. I evaluate arguments in favor of exempting blacks from the same standards imposed upon whites and conclude that typically, though perhaps not always, such arguments amount to little more than an elaborate camouflage for self-promotion or group promotion…..

A second reason I resist arguments in favor of asymmetrical standards of judgment has to do with my sense of the requirements of reciprocity. I find it difficult to accept that it is wrong for whites to mobilize themselves on a racial basis solely for purposes of white advancement but morally permissible for blacks to mobilize themselves on a racial basis solely for purposes of black advancement….

…. [I]f one looks at the most admirable efforts by activists to overcome racial oppression in the United States, one finds people who yearn for justice, not merely for the advancement of a particular racial group….

Believe it or not, there’s more, much more. Read the whole article if you have time, as well as the other pieces by Kennedy I linked above. If you do, I think you’ll appreciate with me the distance between those heights and the depths of “the diversity rationale.” As I have argued here many times, after all, what does “the diversity rationale” rationalize other than holding minorities to a lower standard, because of nothing other than their race, so that whites and Asians can reap whatever benefits flow from being exposed to them? Since “diversity,” I argued in “Diversity” As Exploitation,

is justified by the benefits it allegedly provides to those non-minoritiy students who are exposed to the “diverse” minorities who are preferentially admitted (those minorities, after all, would receive whatever benefits “diversity” has to offer even if they attended less competitive schools), there is an ugly, unstated element of exploitation associated with it.

Sometimes that element is covert, camouflaged by “the diversity rationale” that serves as a fig leaf cover over a racial spoils system. Sometimes it is blatantly overt, as when student requests to transfer to another school are denied because allowing them to leave would reduce the “diversity” of the schools where they are or dilute it in the schools they wanted to attend — denials making them prisoners of “diversity” for no reason other than their unchosen pigmentation.

I’m afraid “inscrutable” may be too weak a description of Randall Kennedy’s inconsistencies. Even more than racial profiling by law enforcement, racial balancing of juries, or racial restrictions in abortion, “the diversity rationale” rationalizes everything he otherwise eloquently claims to oppose.