For Discrimination: Race, Affirmative Action, and the Law
Kennedy, a Harvard law professor and ­social critic, addresses one of America’s most contentious issues—affirmative action—on two fronts: the color-blind, race-neutral ideal and the need to address the impact of both past and contemporary racial discrimination. Analyzing the Bakke decision, which justified affirmative action in the absence of a court or legislative finding of racial discrimination, Kennedy argues that the underlying justification for affirmative action that is race sensitive will survive Supreme Court scrutiny with likely modification. But he focuses on the diversity function identified in Bakke, arguing that diversity has been overemphasized to the detriment of compensation for past discrimination. Kennedy examines the race-neutral ideal and the presumption that all discrimination is bad. The book’s title reflects Kennedy’s promotion of positive discrimination as he argues that the Constitution is neither color-blind nor unaware of racial discrimination as reflected in the Thirteenth, Fourteenth, and Fifteenth Amendments. This is a probing and well-considered look at the complexities of race relations and the continuing controversial issues of affirmative action in contemporary America. --Vernon Ford