Have Elite Universities Earned Our Trust?

with Randall Kennedy

Last month, my good friend Randall Kennedy and I were invited by the College of the Holy Cross to debate the merits of affirmative action. With the Students for Fair Admissions decision now final, what do proponents of affirmative action have to say about a policy that the Supreme Court has declared discriminatory? One of Randy’s explanations for the ongoing necessity of affirmative action is a distrust of elite institutions on the part of African Americans.

To be sure, elite universities did discriminate against black applicants in the past. There’s no disputing that. But the bad old days are gone. It is 2023, not 1963. The discriminatory policies that kept even supremely qualified African Americans out of Harvard are a thing of the past. The affirmative action policies that displaced them—which were indeed necessary decades ago—now pretend to balance the historical scales by maintaining the requisite number of black students on their campus. As a consequence, many black applicants are admitted who fall well short of the high academic standards required of other students on campus.

Such a practice supposes that it’s aiding African Americans by giving them access to an Ivy League education, but it proceeds by way of patronization. It assures its beneficiaries that they do not need to measure up to their peers, as their blackness is their only necessary academic qualification. This is not “racial justice.” On the contrary, it patronizes and insults the very students it “benefits” by suggesting that, of course, black students must require different standards. Meanwhile, those students who are not a good fit for these demanding schools are left to struggle, while black students whose academic performance justifies their presence on campus are often regarded, unthinkingly, as “affirmative action” admits. In that sense, affirmative action is now little more than a brand management exercise, and black students, even the truly qualified ones, are paying the price.

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RANDALL KENNEDY: In living memory, there are millions of people alive today who remember when they would have loved to have had a single standard. They would have loved to have had a situation in which two people are just judged. You know, my test score, your test score, who got the best test score?

Until relatively recently, that was not the case. And I think that that really sticks in the craw of a lot of black people, and it makes a lot of black people, frankly, very distrustful of institutions. You're willing to trust the institution. I think a lot of people are not willing to trust the institution. And the only solace they find is in the bottom line. Show me something. I'm not going to trust you when you say that you're administering a test, the same test, you're treating everybody the same. They believe the only thing I'm going to trust is some bodies.

GLENN LOURY: Oh, come on, Randy. I can't believe you're making this argument. I mean, you're playing right into Justice Roberts, the various points that he was ticking off about what the problem is here. First of all, can't subject these claims to a judicial review. Secondly, negative impact on a group because it's a zero-sum thing. Thirdly, stereotyping. You are taking individuals as representative of social aggregates, and you're treating them differently in virtue of that. You presume that the person who's African American, because they're African American, is carrying with them this burden of historical memory. You mete out a recompense for that burden at the expense of people who have had nothing to do with the injury. And you want to do it forever. That was the fourth of Roberts’s touchstones. There's no end to what you propose.

So I ain't going with you on that. I mean, people need to grow up. Let me just say this. The year, I'll repeat myself, is 2023. This stuff has been going on for a half-century. The country and the world are moving. They're moving fast. African Americans have to man up and woman up to the competition that we're all struggling to confront effectively. Don't make me and my people into wards of the admissions office of an Ivy League institution. Trust that we will, in the fullness of time, whatever the challenge, measure up to the challenge at issue. Special treatment because of what happened a half century ago? I reject that.

I'm gonna take off on your sentence. “People need to grow up.” The first federal civil rights statute in the United States was the Civil Rights Act of 1866. The Civil Rights Act of 1866 declared that all persons would have the same right as white persons to enter into contracts, to own property, to testify, to sue, and to be sued. The classic civil rights. That civil rights bill that was passed by the Congress was vetoed by the president of the United States. The president of the United States was Andrew Johnson. What did Andrew Johnson say when he vetoed the Civil Rights Act of 1866? He said …

This is very unfair, Randall.

“This gives discriminating protection” to the Negro. We don't have to stop at 1866. Take a look at the legislative history of the Civil Rights Act of 1964 in our lifetimes.

When there was plenty of opposition to it based on a variety of arguments, Randall. But what does that have to do with the question at hand?

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What did Richard Russell say when he fought to reject Title VII of the 1964 Civil Rights Act that prohibits racial discrimination at the workplace? His main line of attack: preferential treatment. Sam Ervin: preferential treatment. My point is, this isn't new. This is a historical line of attack against any effort to advance the fortunes of African Americans.

Now, you all in this room know that I do not oppose any effort to advance the fortunes of African Americans.

I didn't accuse you of that! Do you disagree with anything I just said?

No, you just cited the historical record about certain pieces of legislation. No, I don't dispute it. I understand that. I'm saying the year is 2023. I say it now for a third time. What country are we going to have here and what's going to be the crucible of law that governs our interrelationships with one another? These are the questions. I'm saying this is not the answer to the problem.

I'm saying A, reducing people to representatives of these racial aggregates is a moral error. I'm saying B, you cannot reverse the relative underdevelopment of a historically subjugated population by preferring them at the points of critical judgment about whether or not they're fit. Look, if you use different criteria to select students for highly competitive venues of intellectual competition, of intellectual work, like an elite university, necessarily you're going to get different performance from those students on average after they've been admitted.

This is not equality. I'll take six percent over twelve percent if the six percent are actually qualified as much as anybody else in the competitive arena to do the thing that's most valued in that arena. This is why I so strenuously object to placing the value of African American presence in these institutions on their representativeness in some kind of diversity argument, when in fact we all know what the raison d'etre of these places is. It's getting published. It's writing books, it's winning prizes, it's inventing ideas, it's mastery over canon, it's excellence. It's excellence in intellectual work. You create a special dispensation for African Americans in these venues, you guarantee the patronization of African Americans. You guarantee the looking the other way at mediocrity. That's not equality.

One of the things that came out in these cases, certainly one of the things I learned, I've been at Harvard University for now 39 years. I certainly learned a lot through the litigation and some of what I learned was not pretty at all. I mean, Glenn, I wouldn't mind actually, the sort of university that you just depicted.

If one of them actually existed.

If one of them actually existed! That's not what was on, you know what? That's not what was on ...

Oh, the athletes and the alumni.

Yes! The coach of this team of this sport gets nine, and then this person. There was all sorts of stuff going on. Now we can only take that so far.

I gotta tell you this in the spirit of comity. So Jay Caspian Kang is a writer and he's been a guest on my podcast. And we were talking about this and he said, “I got a theory about the university. Here's what it is. The elite universities are about the rich kids. You got to have some really smart kids around, otherwise it wouldn't be an elite university. So you bring in some Asians. You got to have some blacks and browns around, otherwise it wouldn't be social justice-oriented, which is part of the brand. So you bring in some blacks. But the real engine that's driving the show is the rich kids.” So do we agree?

On that one, a lot of agreement.

Will you address yourself to my concern about the humiliation of being included within a cadre of people who are supposed to be about intellectual excellence, and you're hanging on by your fingernails because you came in at the bottom of the distribution of the test score thing, which is a problem that needs to be addressed in and of itself?

I think there's a lot to that, Glenn.

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