Book Review: Randall Kennedy, 'For Discrimination: Race, Affirmative Action, and the Law', New York: Random House, 2013, Pp. 304, $25.95.

In this book, For Discrimination: Race, Affirmative Action, and the Law, Professor Randall Kennedy provides adroit and accessible combination of historical context, legal doctrine, and cultural awareness about race in America. Kennedy describes how legal and political voices have consistently over time explained versions of “race is different.” He balances concessions to negatives about benign “discrimination” [against] unvarnished moral censure of the racial wrongs of the past, and present. He mixes measured conclusions about the net positives of affirmative action, weighed against a fully stocked and conceded catalogue of negatives, with blunt contempt for silly claims and with stern moral accounting. The claim to be, or to aspire to be, a color-blind society is not a new one. Kennedy traces its earliest beginnings to its provenance in the civil rights movement as a preemptive defense against claims of racial favoritism to its contemporary expression the opinions of the Supreme Court. Kennedy provides a clear and morally compelling statement of the case for affirmative action. “The affirmative action ethos is not a necessary evil; it is a positive good.” By “good,” Kennedy means, in American circumstances, a moral necessity. There is therefore no need of apologetics or “anxiety about an endpoint” in the American practice of affirmative action. Rather, for Kennedy, affirmative action is the responsible choice for a society faced with a history of deep injustice and continuing large disparities that can be traced to formal and relatively recent state-facilitated racial harms. Nonetheless, in a moral bounty of modulated yet blunt assessment of America’s record on race, Kennedy’s advice is not without flaw. He acknowledges and defends as necessary the most cited harms and costs associated with racially conscious government awards of benefits. The harm of special concern in democratic society is a hypocrisy by elites masking in the language of diversity their real motive: that of rectifying racial wrongs. Kennedy fails to credit the weight of the damage done by manipulative rationales, used by academic administrators who, in Kennedy’s words, have relied for decades on “the ritualistic, incantatory repetition of the terms ‘diversity’ and ‘holistic’....” In opposing a categorical ban on racially sensitive admissions, Kennedy opines that depriving administrators of a language they have mastered would be costly. But the empowerment of administrators with a language of misdirection and evasion is a net loss to the discursive vitality of the American university, as students and faculty avoid reviving the linguistic void — direct discussion of race — that an evasive rationale creates. Many of the conceded costs of affirmative action surely arise from a cynicism generated by the perceived deceptions of academic bureaucrats. Experimentation to replace harmfully evasive administrative speech with discourse-liberating programmatic design might be the prudent, not the risky course. With his modulated and reasoned moral accounting, Professor Kennedy is a good candidate for helping move the governing rhetoric of race in our law and culture away from evasion and faux forms of engagement in the university. The moral rationale for diversity admissions needs a stronger base in genuine collaboration among the members of the university community and a defensible programmatic plan to make diversity a building block for a first-ever practice of open discourse about race in America. Let us hope for a sequel that matches Professor Kennedy’s sound diagnosis with a remedy for evasion and silence that imagines race as the insoluble problem, to which American democracy and open deliberation are unequal.