In the Supreme Court term that concluded last June, the justices booted an important case, Fisher v. Texas, back to the Fifth Circuit Court of Appeals. With the remand came a key instruction: apply strict scrutiny, the most probing judicial test. When the Fifth Circuit reconsiders the case, which concerns an affirmative action program at the University of Texas, it will therefore do so with the greatest possible skepticism. The judges of the Fifth will assume that the program is unconstitutional and treat it with the same distrust they would a law that says blacks cannot sit at the same lunch counter as whites, or use the same bathroom.
In his new book, For Discrimination, Harvard Law Professor Randall Kennedy refutes that equivalency, which puts affirmative action in the same category of wrongs as Jim Crow.
The overriding point of contention in "For Discrimination" is “colorblindness,” a commitment shared by American voters and Supreme Court justices alike.
Kennedy parses the colorblind into two camps. “Immediatists,” such as Chief Justice Roberts and Justices Scalia and Thomas, hold that the way to achieve racial justice is to stop, right now, relying on race as a criterion by which to make any consequential decision. “Gradualists,” such as former Justice O’Connor, believe that we are not yet ready to stop making decisions on the basis of race, but that eventually we will be, and the country will be the better for it.
Kennedy thinks both camps are fundamentally misguided. The appeal of colorblindness is easy to grasp, but, as Kennedy argues, “The constitutional mission of the Fourteenth Amendment is the establishment of equal protection, not of color blindness.” The goal of law is justice, not “racial laissez-faire.”
Not laissez-faire because if we let the chips fall where they may, “they will fall in favor of whites.” In our age of formal equality, black Americans continue to fare worse than white Americans in any way you can measure, from educational attainment to earning prospects to life expectancy. If you’re black, on average, you will live about five years fewer than your white peers. One hundred and forty-five years after everyone got the same fair deal, whites have about 20 times more assets than their black counterparts.
The question is whether the government can, through “positive discrimination,” enforce equality not just “as a right” but also as “as a result.” Correctly or not, the Supreme Court has increasingly asserted that the answer is no: The Constitution must be read as colorblind, and therefore the government is unable directly to rectify systemic racial inequality. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously intoned, succinctly summarizing the colorblind position.
Critics of race-based affirmative action on the left believe they have the answer to judicial recalcitrance. They argue that class-based affirmative action, whereby wealth, not race, is the standard according to which preferences are doled out, would still disproportionately aid minorities. Kennedy is not a fan. He believes that class-based affirmative action is perceived as “racial affirmative action in disguise” and is therefore not able to overcome white backlash.
But the courts, not resentful white voters, will decide the debate. Since the late 1970s, the Supreme Court has taken upon itself the challenge of improvising ever more baroque affirmative action rules, and so far, the policies most successful before the courts have been those Kennedy thinks too thinly disguised. Judges have been amenable to formally race-neutral strategies even if their ultimate aim is to redistribute opportunities to minorities. It seems like Kennedy, concerned as he is with results, should favor the class compromise.
Yet he does not, because he sees that a move to class-based affirmative action, however well meaning, is a capitulation to and reinforcement of colorblindness. And he understands, with rare lucidity, that colorblindness has never been beneficial to black Americans.
Those who favor colorblindness forget that our colorblind pre-Reconstruction Constitution enabled the ownership of blacks as property. They forget that for decades after Reconstruction, colorblind “convict leasing” laws effectively re-enslaved tens of thousands of black men. They forget that Jim Crow was legally race-neutral, effecting equal impact, supposedly, on blacks and whites. And they refuse to acknowledge or repair the black disadvantage that persists today despite formal equality, because, in their enlightened state, there is no black and white, just folks.
Kennedy is for discrimination because he is against colorblindness – because “just folks” has always been an engine of black subjugation, and there is no reason to believe that has changed.
Simon Waxman is a writer and editor in Boston.