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« Back to Is America Going Color Blind? main page    Transcript for: Is America Going Color Blind?ANNOUNCER: Think Tank is made possible by AMGEN,recipient of the Presidential National Medal of Technology. AMGEN, helping cancer patients through cellular and molecular biology. Improving lives today and bringing hope for tomorrow. Additional funding is provided by the John M. Olin Foundation, the Lilly Endowment, and the Lynde and Harry Bradley Foundation. (Video break.) MR. WATTENBERG: Hello, I’m Ben Wattenberg. Can America have a color-blind society? Should it? It’s an argument as old as the Republic itself. On June 14th, President Clinton will deliver what is being billed as a major address on that topic. It is a fitting moment to revisit this most persistent theme. Joining us are Randall Kennedy, a professor at Harvard University Law School, and author of a major new book Race, Crime and the Law. His book is a powerful argument for stripping race out of the criminal justice system. And William Galston, professor of public policy at the University of Maryland, and a former domestic policy advisor to President Clinton. The question before this house, is America going color-blind, this week on Think Tank. MR. WATTENBERG: In November of 1996, Californians passed Proposition 209. The California Civil Rights Initiative, CCRI. Borrowing the language of the 1964 Voting Rights Act, CCRI required that government agencies be neutral on race, whether in hiring policies or admissions to state schools. President Clinton opposed Prop 209 as a ballot initiative. After Californians passed CCRI by 54 to 46 percent, Clinton instructed his Justice Department to work with those seeking to have the courts declare the measure unconstitutional. Randall Kennedy, a major advocate of color-blindedness, recently wrote a controversial essay in which he argued that blacks should rethink their allegiance to group politics. The article has received a great deal of attention. We pick up our conversation on that topic. Randy Kennedy, you wrote a cover story in the Atlantic recently called My Race Problem And Ours. I wonder if you could tell us what that was about? MR. KENNEDY: My essay in the Atlantic is a critique of the idea of racial pride and racial kinship. It’s a critique of the idea that, let’s say -- let’s take myself, I asked the question at the beginning of the article, should I have more affection for black people than for other people? And my answer is -- on a racial basis, should I, as a matter of a feeling of racial kinship feel closer to black people than other people, and I answer no. You inherit your race, it’s accidental. You happen to have white skin or you happen to have black skin. I think people should have pride in their individual accomplishments, not in whatever status they happen to occupy? MR. WATTENBERG: There was -- I haven’t seen it recently, but a few years ago there was that T-shirt that said 'It’s a black thing, you wouldn’t understand.' What did you think about that? MR. KENNEDY: I thought it was -- I didn’t like the T- shirt. I thought that it was a -- I didn’t like the T- shirt. And I think it was a very counterproductive T-shirt. Just suppose, for instance, that white people looking at that said, yeah, that’s right, it’s a black thing. I don’t understand. And so, I guess I shouldn’t make any effort to try to understand my fellow American. I’m only white, I can’t understand what this -- I can’t empathize with this person. I’m against that sort of thing. And that’s what my article really articulates. MR. WATTENBERG: What are you thinking? MR. GALSTON: Well, first of all, my hat is off to you. It was one of the bravest and most honest pieces that I’ve read in a very long time. And I think that the national discussion that it’s sure to spark will do us some good. Having said that, I would want to distinguish between the civil dimension of kinship and affiliation and the civic dimension. And I agree with you absolutely that this sense of being more like one group than other groups should not in any significant way affect our sense of common citizenship, the way we legislate, the way we conduct our public business. Having said that, I think that part of the reality of life in this country and in every country, is that there are subgroups which are divided to some extent by differences of experience, differences of situation. Those subgroups have something in common. I’m Jewish, and I don’t think that being proud simply because of that fact is warranted, but if you’re asking me is there something that I have in common, a kinship to use your term, with other Jews that I don’t have to the same extent with my other fellow citizens, I think the answer to that question is yes. And the question in our country is to how to combine those two parallel and I believe consistent truths. MR. KENNEDY: Let me respond to that. One, you mention reality. That’s right, your description of reality I agree with. But reality is changeable, and we need to change the realities on the ground today. Two, the distinction between the civil and the civic. The civil will lead into the civic. For instance, let’s imagine, there’s no law that prohibits people from joining, let’s say, all white private clubs. Our law allows people to join, get together in truly private all white clubs, or for that matter truly private all black clubs, or what-have- you. Now, imagine if somebody belongs to an all white private club, that’s private, it’s lawful. And this person then wants to become -- and this person is a candidate for a judgeship. I’m going to say, hold it. It’s lawful -- MR. WATTENBERG: I’m going to tell you what his first line is going be, why I was leading the charge in that club to get it to open up. That’s a 14(c)(3) in the politician’s handbook. But go ahead. MR. KENNEDY: But the point is, the point is, I am, I think, going to legitimately be apprehensive about the capacity of this person to all of a sudden be sort of a different person with black robes on than this person in their private club. It’s lawful. It’s part of reality, as it is currently existing in our society. We ought to change the reality. MR. WATTENBERG: What did you -- MR. KENNEDY: I want to change the conception of who we are, so that when I -- so that when somebody says to me, you know, when a black person says, my people, I want the black person to mean, my American people. I want the white person to mean, black people when he or she says, my people. I don’t want there to be racial boundaries around our -- MR. WATTENBERG: What did you think of the Million Man March? MR. KENNEDY: I was very critical of the Million Man March? MR. WATTENBERG: Because? MR. KENNEDY: Because it was an instance, an episode, of racial boundary making, racial mobilized politics. I think that’s poison for our society. MR. WATTENBERG: What about Bill Galston’s point, though, about affinity for shared experience? I mean, Bill is Jewish, I’m Jewish, we have a certain shared experience that doesn’t mean that we’re keeping you out of the conversation, but there are things we can probably talk to that we might even have a hidden T-shirt that says, it’s a Jewish thing, you don’t understand. What is -- I mean, don’t black people in America given -- certainly, in this country with this history, the tragic history often, have a shared kinship to relate to? So that without it being exclusive and saying, no whites allowed, you know, you’ll never understand, get out of my face, I mean but aren’t there -- isn’t the natural evolution of human relationships going to put black people in a march or in a club or in a fraternity, or whatever? MR. KENNEDY: If people want to -- I want people to freely associate and there’s nothing wrong with black people really associating, that’s fine. My criticism is the -- my point is that there should be no expectation and certainly no pressure pushing people to feel that it is right for a person’s skin color to be the signal that tells you that you should feel more affection for them. That’s -- it’s this racial signalling, this immediate racial signalling that I want to impede. MR. WATTENBERG: New topic, we recently had this perhaps seminal vote in California, Proposition 209, that as I read it, at least, did nothing more than restate the 1964 Civil Rights Act, and a part of the 14th Amendment, which said, thou shalt not discriminate. Were you in favor or against? MR. KENNEDY: Probably against. MR. WATTENBERG: Stop. Were you in favor or against? MR. GALSTON: That proposition as drawn? MR. WATTENBERG: Yes. MR. GALSTON: By itself? MR. WATTENBERG: Yes. MR. GALSTON: I was against it as a free-standing proposition. MR. WATTENBERG: I think we are all in agreement that a color-blind society is a good thing. Here was this Proposition 209 which, at least as I read it, said we should have a color-blind society. And you two guys are against it. Why? MR. KENNEDY: Why don’t you go first. MR. WATTENBERG: What’s wrong with it? MR. GALSTON: Well, a society is a complex system, and changing one part of it without changing other parts of it at the same time can create even more serious imbalances than the ones that you set out to rectify. In the case of Proposition 209, which I think is based on an incontrovertible principle of justice, it is clear to me, and I have studied the California educational system in great deal, that its immediate and inevitable consequences will be to dramatically reduce, and I mean by three- quarters, the number of African-Americans entering the elite institutions of higher education in the State of California. That’s the fact. MR. WATTENBERG: Yeah. But let us underscore elite, because they would go down from UC-Berkeley to UCSB or whatever. We’re not talking about people not being able to go to college. And I didn’t mean to say anything wrong about UCSB, but go ahead. MR. GALSTON: My objection -- my objection is to annunciating the principle as though it were a fact, and then saying, let the chips fall where they may. Let me say exactly what I mean by that. The California system of public education has gone down here woefully in the past 20 years. Not only is the average quality much lower than it was 20 years ago, but the disparity between the remaining good schools and the larger number of bad schools is greater than it was 20 years ago. I don’t know anybody who can take a look at the public education system in the State of California and say that there is equal educational opportunity in the State of California. The problem with simply altering the affirmative action regime as a free-standing act is that it does nothing to address the question of background inequalities generating the inevitable outcome, that is the diminution by three- quarters of the number of African-Americans entering the elite institutions of higher education. MR. WATTENBERG: All right. MR. GALSTON: If Governor Wilson had said, I have a comprehensive plan that I’m serious about to equalize educational opportunity in my state, and as we equalize educational opportunity as demonstrated by the performance of the schools, we will phase out affirmative action. I would have cheered. But he didn’t do that. MR. WATTENBERG: May I speak honestly? I am unimpressed with that argument. MR. GALSTON: Okay. MR. WATTENBERG: Because we all -- you know, that is the standard rebuttal. Oh, yeah, right, we’d really be for it if the following 11 things all fell -- that’s not the way the system works. Pete Wilson could get up there and say, I’m going to reform everything, and this is just a part of it. And then he’s got a legislation, and he’s got this, and he’s got that, and there are different principles of equity and law in each one of these things. And what you end up saying is, I think it’s fine to controvert the -- to contravene the Civil Rights Act of 1964. What is your excuse for being color-blind and anti-209? MR. KENNEDY: The first thing I want to say is that I’m very ambivalent. MR. WATTENBERG: I am, too. I’m putting on a little bit of this, but go ahead. MR. KENNEDY: I’m very ambivalent because my strong preference, my very strong preference is for people to be treated regardless of race. So, affirmative action seems to -- poses a problem for me. And I’m just going to say that. MR. WATTENBERG: Yeah. Let’s say, let’s make a distinction because I think we’re all making it sort of automatically, that everybody here is for affirmative action of the outreach type. And, you know, let’s get everybody in, and advertise the positions. We are talking about when affirmative action goes over some invisible line where it starts to look like preferences or quotas. And you can argue about where that line is. Is that right, that’s what we’re talking about? When you say affirmative action, is that right? MR. KENNEDY: That is, but I want to add one thing, because often people -- and I’m going to turn it on you. Often people who are very critical of affirmative action say, well, of course I’m in favor of outreach. And, of course, outreach is still taking race into account. It’s a mini-type of affirmative action. MR. WATTENBERG: Right. MR. KENNEDY: But to answer your question directly, I guess I’m ultimately, though, ambivalent. I’m ultimately -- I was ultimately against 209 because I thought that it seems to have removed any amount of flex in the system in California. And I would have preferred to have an arrangement under which there would be a little bit more flexibility taking into account -- MR. WATTENBERG: They still would have and could have and do take account of class, which would end up putting disproportionate numbers of blacks from the lower socioeconomic rungs into better schools. So, it’s not as if there’s no flexibility. MR. KENNEDY: No, I understand that. I’m talking specifically about race, because oftentimes people make it seem -- I mean, class and race are different. MR. WATTENBERG: Of course they are. MR. KENNEDY: And the question would be, is there some social utility in providing a boost to the black middle class kid over maybe a kid, white kid, whose parents might earn less money than the black middle class kid. And, under the circumstances that obtain in our society now, I think there’s an argument to be made, depending again on a variety of circumstances, that, yes, there’s a reason to give the boost to the black middle class kid. MR. WATTENBERG: But the way you phrase that, it is clear to me that you easily understand why the parents of that white middle class kid would go bananas. MR. KENNEDY: Oh, I understand that. MR. WATTENBERG: And with some merit. MR. KENNEDY: Yes. And, in fact, what makes this all the more ironic, me saying this, is the same sort of arguments that could be made in favor of the police taking race into account in putting that question mark over blacks could be made for affirmative action. I mean, there’s a certain way in which these two arguments are completely analogous. Yet, in one I’m arguing against taking race into account, and on the other I’m seeming to argue a somewhat different story. There’s a real tension there. MR. GALSTON: I may not be right in my position, but I think my position is at least arguably consistent, you know, because I think I am willing to take race into account to some extent in both those things, and the reason for -- you used the phrase, Randy, and I think it’s a very revealing and important one, social utility. There is a deep philosophical discussion, as you know, about the relationship between the promotion of overall social utility on the one hand, and looking at justice in individual cases on the other hand. And it may be that when you look at the question of doing justice to individuals, you’ll be led to one set of policy conclusions, and if you look at the overall issue of promoting the long-term well-being of the society as a whole, you may be led in a somewhat different direction. Quite frankly, I find myself torn between those two sets of considerations. MR. WATTENBERG: Let me interrupt here. Okay, neither of you would have voted for 209. You would have thought about it, but neither of you would have voted for 209, 209 passed with a moderate margin, 5248/5347, something like that, after a very well publicized campaign. At which point, your boss, your then boss or you may have left by then, but your former boss, President Clinton, allowed the Justice Department to adjoin a suit which said that Proposition 209 was unconstitutional. Now, it is one thing to say, I would support 209 as a political matter. You’re against 209 as a political matter. But is there any rationality whatsoever to say that the 14th Amendment and the Civil Rights Act of 1964 -- I mean, arguably the two great acts of jurisprudence in the last couple of centuries -- that those acts are unconstitutional? Is there an argument to be made for that? MR. GALSTON: I’m going to let the Harvard law professor give the long answer. MR. WATTENBERG: Well, that’s what I want. MR. GALSTON: But let me give the short one. I think we have to get back into the habit in this country of distinguishing between policy matters and constitutional matters. And I find it implausible on its face that there is a constitutional bar to doing what the electorate of the State of California chose. And we can have, as you say, a debate about the policy, but I do not think that this can be resolved constitutionally. It shouldn’t be. MR. KENNEDY: Well, we’re in agreement. No, I did not think that there was any good argument for saying that Proposition 209 was unconstitutional. Can I just make a point, though? And it sort of echoes a point that you made earlier. I tell you, with respect to 209 and affirmative action in general, I might have a different view, I might be willing to say, I’m against affirmative action, if authorities, if the general population could tell me, we are going to across the board, and very vigorously enforce a regime of equal treatment before the law. That is to say, if I could get equal treatment before the law in the criminal justice area and all the other areas of American society, if I could be assured of a vigorous enforcement of that norm, I would give up my claim. MR. WATTENBERG: Is it possible that the thing that is hurting racial amity most in this country is that we’re talking too much about it? Would it be good to go into a decade of saying, hey, listen, there’s plenty of opportunity around. It may not be perfect, as you pointed out, but we’ve made a lot of progress. Let everybody tend to their business, because this constant drumbeat on it is -- not you nor you, but people saying, this is racism, that is racism, and the converse is, you know, all they want to do is talk about race. Is that counterproductive now? MR. KENNEDY: Stupid talk it counterproductive. Intelligent talk is needed and is useful. MR. GALSTON: First of all, there is some good news, that racial attitudes, mutual acceptance, I think, is growing rather than shrinking. MR. WATTENBERG: Yes, I do, too. MR. GALSTON: The notion that we’re on the verge of a race war is, I think, a journalistic fantasy. Not your journalistic fantasy but -- MR. WATTENBERG: No, I think this -- you know, I look at these intermarriage rates. I mean, that’s the future of this country. We are really creating a new folk out there. That’s another program which we’ve done several times. Go ahead. MR. GALSTON: Having said that, I think there are some areas, and I would put the crisis of legitimacy of the criminal justice system at the top of that list, where remaining silent in the face of the attitudes that we can see are out there is very, very risky. I’ll be honest. I was stunned and shocked by the divisions that were produced by the OJ Trial. If you had asked me before that trial started, is it going to work out that way? Would it work out that way if the verdict went that way, I would have said something between no and hell no. And that tells me that I failed to grasp something very fundamental about a contemporary reality of American society. And so I think we need to talk about that. MR. WATTENBERG: Okay. Let’s just end it here. Thank you very much, Professor Randall Kennedy. Good luck on your big new book Race, Crime and the Law. MR. KENNEDY: Thank you. MR. WATTENBERG: Bill Galston, sometime unindicted coconspirator in various political causes, I thank you for joining us. Good luck on the not yet completed book that is lurking. And thank you all for joining us. For Think Tank, I’m Ben Wattenberg. ANNOUNCER: We at Think Tank depend on your views to make our show better. Please send your questions and comments to: New River Media, 1150 Seventeenth Street, Northwest, Washington, D.C. 20036; or e-mail us at thinktank@pbs.org. To learn more about Think Tank visit PBS On-line at www.pbs.org. 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