The Inscrutable Randall Kennedy

Randall Kennedy 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 have met Randall Kennedy a time or two (we have a very good mutual friend), and been impressed, but I do not know him well. I have read most but not all of what he has written, and been impressed both with him — since I think his work has taken some courage — and his work. I confess, however, that I have never understood 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.

An example of the latter is a current article in The American Prospect. What I find most noteworthy about this article is … that there’s really nothing noteworthy about it. This is not a criticism. This article, like all Kennedy’s work, is well-written, even eloquent, and after all these years there’s really not much new to be said for, or against, racial preferences. Still, most of Kennedy’s writings are original, even novel, arguing if not unconventional at least highly personal and occasionally idiosyncratic positions, while this TAP defense of preferences is unexceptionably conventional, full of criticism of “right-wing enemies of affirmative action” who are “attacking the affirmative-action status quo.”

Kennedy scores when he notes that “[s]ome right-wing enemies of affirmative action proclaim their allegiance to the notion that all governmental racial distinctions are presumptively evil.” However, his own conclusion —

The defense of affirmative action is a battle worth waging, however, because positive discrimination on behalf of racial minorities in higher education 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.

— is subject to the same criticism: he condemns taking race into account almost everywhere, except affirmative action in admissions and employment.

Some examples from Kennedy’s 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 permits an (adoption) agency to ‘consider the race, color, or national origin of a child as a factor in making a placement decision]: This state of affairs is, quite simply, a political disaster–at least for integrationists like me who view the anti-racialist impulse of the civil rights movement circa 1963 as the great guiding sentiment around which struggles for racial justice should continue to cohere. Whether or not they recognize it, many liberals have abandoned their commitment to creating a society in which racial difference withers away into moral insignificance. Instead, often marching under the banner of “diversity,” they have acquiesced to measures that are moving us toward a society in which one’s racial background is deemed to have a definite, positive, moral meaning that the government officially recognizes, reinforces, and celebrates. (“Orphans of Separatism,” The American Prospect, Spring 1994)
  • Opposing required racial balance on juries: I’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 police: Taking 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)

In a short article on “Racial Profiling” in the Atlantic Monthly, April 2002, Kennedy was incisively articulate about the inconsistency of most commentators on racial profiling by police and racial profiling by admissions officers. Defenders of preferential admissions, he notes, imply that they do not involve racial discrimination because race is used, they claim, “as only one of many factors.” Show them airport police stopping 1) a young man 2) of Arab descent 3) who buys a one-way plane ticket with cash, however, and those same preferentialists entertain no doubt that the police have been guilty of racial profiling.

Exceedingly few police officers, airport screeners, or other authorities charged with the task of foiling or apprehending criminals act solely on the basis of race. Many, however, act on the basis of intuition, using race along with other indicators (sex, age, patterns of past conduct) as a guide. The difficult question, then, is not whether the authorities ought to be allowed to act against individuals on the basis of race alone; almost everyone would disapprove of that. The difficult question is whether they ought to be allowed to use race at all in schemes of surveillance. If, indeed, it is used, the action amounts to racial discrimination. The extent of the discrimination may be relatively small when race is only one factor among many, but even a little racial discrimination should require lots of justification….

A notable feature of this conflict is that champions of each position frequently embrace rhetoric, attitudes, and value systems that are completely at odds with those they adopt when confronting another controversial instance of racial discrimination-namely, affirmative action. 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.

From what I’ve seen, Prof. Kennedy is a perfect example himself of the contradiction he so clearly describes here. An articulate, principled advocate of color-blindness in jury selection and by the police, adoption agencies, and in the criminal law generally, he abandons it at the schoolhouse door and employment office. He justifies preferences in the latter arenas as necessary to promote integration, but, so far as I’ve seen, he has yet to present a compelling principle that explains why he defends color-blindness here but not there. Until he does, his complaints about “right wing” critics of affirmative action sound a bit shrill since so many of those critics are simply agreeing with what he says, and says very well, elsewhere.

Say What? (2)

  1. Randall Kennedy June 11, 2004 at 7:51 am | | Reply

    Nicely put. You are right. I should come forth with a clearer, more sytematic statement of my beliefs. I will try to do so. Be well.

  2. […] some of these inconsistencies — what I call Kennedy’s inscrutability — in two long posts, The Inscrutable Randall Kennedy (March 2003) and Harvard Law’s Randall Kennedy: Still Inscrutable (August 2010), and I […]

Say What?