One might counter the right’s position by positing that the elderly, veterans and the disabled, as groups, are given privileges and preferences, enforced by governmental acts, that others do not get. Why not race, which, as a social and political category, has had a far more troublesome and disruptive history that has deeply stigmatized and castigated black people who are not guilty of having done anything to the whites who, in fact, were largely responsible for the stigma and castigation? Moreover, even if the common conservative belief that blacks are inherently dysfunctional is true, how would that fact make them immune to being wronged or damaged? Here, the conservatives seem simply to be retreading “the prostitute cannot be raped” argument as a defense for the hatred that affirmative action is meant to defang.
One might counter the left’s position by positing that affirmative action is a rather crude form of liberal reformist charity that has intensified class divisions among blacks, and has undermined black institutions and black institution-building by siphoning off the best and brightest in the black community. Historically black colleges and universities can hardly find black professors to fill their faculties because, just as blacks individually find it difficult to compete against whites, black institutions have no chance of surviving against their well-capitalized white counterparts. The policy is also critiqued for having created a sense of entitlement in blacks, a kind of political militancy that has deformed their sense of group self-reliance and made claims of victimhood a way to “get over on” or “hustle” white folks in a sucker’s game, which many liberal whites indulge in because they don’t really believe that blacks are grown-ups.
All of this is familiar to those who have followed the affirmative action wars of the past four decades — the Supreme Court decisions, the polemical monographs, the op-ed exchanges, the televised shouting matches between defenders and opponents. Doubtless, it is a testament to liberal genius that a policy disliked by most Americans, often intensely so, should have endured with such power and continue to evoke great passion.
What Harvard law professor and prolific author Randall Kennedy brings to this is his sharp mind, accessible prose and level-headed reasoning. “I champion sensibly designed racial affirmative action,” he writes, suggesting the possibility of a poorly designed type of affirmative action in which opponents mistake a flaw in the execution for a flaw in the conception. He also writes that “affirmative action, in its typical design and implementation, is in accord with the federal Constitution.”
Kennedy strenuously defends affirmative action, using arguments that may not be new but are thorough and intelligent. He is willing to point out weaknesses in the arguments of fellow defenders — such as the testing deniers who attack the legitimacy of merit and its measurements — and in teacherly (or lawyerly) fashion he ends each chapter with a point-by-point recapitulation of how a particular facet of the defense argument should be articulated.