Still Additional Additional Thoughts On Randall Kennedy


About a week ago I posted a few comments about Harvard law professor Randall Kennedy, “The Strange, And Stranger, Career Of Randall Kennedy,” and a link to my review of his recent book. Shortly thereafter I posted some post-review additional thoughts. Now some correspondence with an old friend about these items prompts me to add another additional thought that did not make it into my review.

In the review I did quote Kennedy’s uncharacteristically condescending dismissal of Hubert Humphrey and his liberal (and a number of Republican) allies who insisted that the Civil Rights Act they crafted was intended to and in fact did prohibit racial preferences, what Kennedy prefers to call “positive discrimination”:

What, then, does he make of the emphatic, repeated assertions of Hubert Humphrey and other liberals that the 1964 Civil Rights Act prohibited any preferential treatment based on race? “The words of Senator Humphrey and his allies forswearing affirmative action should be understood as mere strategic feints,” he explains, at best a reflection of the limitations “of early 1960s white racial liberalism … that regrettably underestimated the barriers” of continued racial discrimination.

Thus in Kennedy’s view the repeated, emphatic, dedicated devotion to the non-discrimination principle of Humphrey et al. was dishonest or dumb, a result not only of a shallow, limited liberalism but specifically of their white racial liberalism.

I should have stated in my review that this characterization of Humphrey and his liberal argument for civil rights is not only unjustifiably condescending; its attack on white racial liberalism is both offensive and completely wrong. The “racial liberalism” espoused by Humphrey and other supporters of the 1964 Civil Rights Act was thoroughly and completely indistinguishable from the racial liberalism advocated by the NAACP Legal Defense Fund over its long and illustrious career undermining Jim Crow and by Thurgood Marshall and his colleagues in their briefs and arguments to the Supreme Court in Brown v. Board of Education. I have quoted a sampling of their views in several  long posts, herehere, and here.

• Was Thurgood Marshall a “white racial liberal” when he argued in Sipuel v. Oklahoma State Board of Regents, 332 U.S. 631 (1948) that “Classifications and distinctions based on race or color have no moral or legal validity in our society” or two years later, when he argued in Sweatt v. Painter,  339 US 629 (1950), that “There is no understandable factual basis for classification by race”?

• Was Robert L. Carter a “white racial liberal” when he argued, in Brown, that ‘‘No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens”?

• Was Thurgood Marshall a “white racial liberal” when he argued, also in Brown, that “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone…. A racial criterion is a constitutional irrelevance, and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction”? When he stated in oral argument in reply to a question from Justice Frankfurter that “the state is deprived of any power to make any racial classification in any governmental field”?

• Was James Nabrit a “white racial liberal” when he argued in Bolling v. Sharpe, 347 U.S. 497 (1954), a  companion case to Brown, that the 13th, 14th, and 15th Amendments “removed from the federal government any power to impose racial distinctions in dealing with its citizens”?

• Was Spottswood Robinson a “white racial liberal” when he argued in Briggs v. Elliott, 342 U.S. 350, one of the Brown cases, that “it was contemplated and understood … that the Fourteenth Amendment would operate as a prohibition against the imposition of any racial classification in respect of civil rights”?

Randall Kennedy clerked for Justice Marshall. Surely he knows that Marshall was no more a “white racial liberal” during all the years he embraced the “without regard” principle of colorblind equality than he was when he, like other other liberals of all hues, rejected it. Kennedy demeans his argument by disparaging Humphrey’s colorblind liberalism with a gratuitously snarky and false race-tinged comment about its supposed color.

Say What?