Affirmative Action Isn't Enough

were offered to African American students. At Bronx High School of Science, out of eight hundred and three accepted students, only twelve were African American. These outcomes were treated as a crisis throughout New York City. They cast light on a deep question about the nature and need for affirmative action. Mayor Bill de Blasio, on the side running for president, waited in earlier the summer with an op ed arguing that the city's exam schools should essentially be abolished in

the form of which they exist. They should be changed. He said, to schools that admit the top percentage of students from all of the middle schools around the city instead of relying on an exam, a fundamental shift in a mechanism of choice that has existed for decades is inherently fascinating, and it raises the fascinating question about whether a debate around testing and affirmative action should be the

debate that we're having right now. I was lucky enough to discuss it with a colleague and friend of mine, pressor Randy Kennedy of Harvard Law School. Randy's the author of, among many other books, a terrific book called four Discrimination, Race, Affirmative Action, and the Law, which you wrote about five years ago, and the title of that book says it all. Randy has always been a very strong supporter of affirmative action. So I began my conversation with him by asking what

were his initial thoughts watching this drama in New City unfold? First, why is it that we are spending so much time and effort on these schools, wonderful schools where they educate relatively few people. All of a sudden there is a crisis. Well, the way in which we even talk about this, we talk about these schools are so important. It's so important to get in these schools because these are the schools from you know that provide a ticket out of well,

what do they provide a ticket out of? They provide a ticket out of substandard schooling. One of the reasons why everybody is going nuts about this, why people try so hard to get in these schools, is because they want to escape regular school. So number one, why aren't

we thinking more about the character of regular school? Why are we so willing to countenance a system in which we sort of accept that the regular schools, the schools that the great majority of people go to, are substandard, And what we're focusing on are the conditions under which people can escape those schools. So number one, we need to focus more on let's make regular school a lot better so that there's not this obsession with escaping them.

So I agree with you, of course that we need to focus more on making every school in New York City a good school, a functional school, a better than average school. But at the same time, I want to push back about why we're obsessing over this. I don't think it's just that other schools are perceived as substandard, although that's part of it. I think that elite schools like Stuyvesant, like Bronx Science, like Hunter are the public equivalent of elite private schools, which are very important to

the cultural life of elites. And that's because they proportionately send so many kids to fancy colleges, which are themselves the focus of elite accomplishment. And so nationally people are obsessing because they think that access to that elite determines who are our national leaders. They do, and I will still say we are overinvesting in this part of the debate.

And I think that I have two and interestingly enough, people on the right I'm thinking of Clarence Thomas, and people on the left, I'm thinking of polemicists that we're writing in the late nineteen sixties agree on this. There's a way in which we're so focused on the rules and regulations and you know, the selection devices for these elite institutions, that we're not paying enough attention to the

institutions that are going to educate the great mass of people. Secondly, second point, I think that we are suffering from a type of scarcity that need not be you know, we keep talking about the few schools that are the select elite schools. Well, to the credit of New York City, I think they have tried to expand the number of them over time. But wouldn't you agree that at some point the expansion ceases to be mean, yes, it does.

And then okay, so that's right at some point and if we're talking not at six, but it's some larger not fine, and at some point we're still I'm not I'm not trying to get through the dilemma. At some point, you're going to have scarcity. You can't have a million seats for elite schools. If you're going to have an elite school, there's necessarily going to be cut off points. There's necessarily going to be dilemma. So let me go to that, you know, to put it bluntly, I am

not with Mayor Deblasio and what he's talking about. The Mayor has said pretty expressly he thinks the problem is the test. It could be. I don't think that anything should be off the table. I think that people, you know, is this test testing for what we're looking for? Fine, you know, I'm not saying that the test should be beyond question. I do think, however, in these discussions, it is often the case that people stone the messenger. In my view, in this debate, the messenger is the test.

It's the test is a Seis McGraph. The test is telling us things that are happening in society. What this test is telling us is that in terms of mastering all sorts of subjects, some kids are doing a lot better than other kids. And it seems to me a question, well, why is that? How can we help the kids that are not doing so well do better? But can I

try to answer Randy Kennedy with Randy Kennedy. So you've argued, and you argue this very explicitly in your book for Discrimination, that there's a shorthand answer for why we're getting this message, and that is the systematic history of race based discrimination that extended from slavery through segregation until very very recently. And I think you were born in nineteen fifty four, if I'm not mistaken, So that means that you were

born in the year when segregation was made illegal. But it didn't end for decades efforts, and in some places in the United States schools are still de facto segregated, even if it's not according to law. And you also argued that given this systematic, ongoing structure of oppression, that we need to diversify elite institutions in response to this historical, demonstrable phenomenon that's ongoing. So why isn't that the answer

the test. We're not stoning the test. We're acknowledging that the test is representing some systematic injustice, and we're saying, let's find some alternative mechanism. Call it discriminatory if you will, you call the discrimination, you didn't mind calling it that, in order to remedy those structures. It's not a remedy for those structures. It's a mistake to think that the affirmative action regime is the panacea for the problems that

we're talking about. The affirmative action regime makes a small cut. It gives some benefit to those who are at the upper levels of the marginalized and the oppressed, but it doesn't do a whole lot more than that. And I've seen it. That's right. I mean, I am an affirmative action baby. It is too easy to have the affirmative action regime in place, get year after year after year you're ten percent, and then forget about it. I don't

want that to happen. In fact, the problem with affirmative action, as far as i'm concerned it's far too conservative and intervention. We need something considerably more radical to deal with this still massive problem that we have of you know, structures of racial inequality that are baked in to our society.

What do you have in mind? What's the radical transformation that you would you would imagine because you're what you're talking about is abandoning w. Du Bois's talented ten rationale for creating an African American elite on the theory that that would in the long run, contribute to what he still called the uplifting of the race. First of all, you know, one thing I've seen in the commentary about the schools, there was a time in the recent past

where there were more black kids at these schools. That has fallen down, and some people speculate that one of the reasons why it has fallen down, the numbers have fallen is because of the dismantling of various special pipeline programs to try to you know, nourish and push the talented, you know, the talented tenth Listen, I'm a talent tenth person, a talent tenth man, a Duboisian. But again, that is that that's that's something I don't want to. That's why

I don't want to get rid of that. But that is not going to change enough to make me satisfied. You asked me, well, what do you want to do? I'm not sure. I'm not I'm not a professional educator of this sort. I think though, that one thing that we need to do is not be satisfied with what we have and what we have had, namely this affirmative action regime. You know, for the past couple of decades, we need to think a new about things. Let me tell you something that I'm thinking a new about diversity.

It has now become totally conventional, this mirror notion. You know, the schools don't look like New York City, the mirror idea, they'll look like America. Idea is okay if you are part of a group that is large enough to be able to claim a fairly big part of that pie. If you come from a small group, however, that mirroring idea doesn't look so good. What about the quote problem of overrepresentation, or to put it differently, is it the

case that there are too many Asian Americans in the schools? Right? I mean, if you're going to get No one wants to say that. No one wants to say it, but it seems to me, although our employer or Harvard University is being sued on the theory that intentionally or otherwise, our admissions office is similarly treating Asian Americans as this as though they were overrepresented and therefore has been restricting the numbers. Now, to be clear, our employer denies it,

you know, three ways till next Sunday. But that is the allegation in this say, that is the allegation. And I must say, for me, this issue has taken on more prominence than it has in the past. For me, you know, this looks like America. It seems to me is quite problematic. First of all, the United States is too complicated and diverse for this looks like America metaphor to actually have real purchase. So now we're really getting

into the meat of it. So the language of looks like America is the language of the diversity rationale, which you know, as you know far better than I, the Supreme Court treats as the only, at least for the moment, constitutional rationale to justify affirmative action. And it's not just that you can't be in any institution of higher learning without getting a steady diet of the word diversity is our key value. We've got diversity reports, we have diversity deans,

we have diversity officers. It infuses our whole way of doing things at a university like Harvard where we both teach. And I hear you questioning that orthodox, Yes, very much one of the virtues, of course, of the word diversity. Who the people behind the coining of it? You know, I think well of them. They were onto something. They

wanted to change things. They wanted to redistribute power and opportunity downwards, as do I. And sometimes in order to do that, you actual onto an idea, a slogan that has good strategic opacity. It is a wonderfully ambiguous strategic work. What does diversity mean? And all of our schools, for various reasons, some political, some legal, stay within the ambiguity and really play that ambiguity. So let's play out why they do that. I agree strategic opacity is the key

term here. In the first instance, it's that if they say we have a quota, then they lose. The Supreme Court strikes down it's illegal. They can't do it. So that's one reason. The second is no one wants to say, well, we want to use positive discrimination, which is what a lot of countries call it, and which you alluded to in the title of your book. And so no one wants to say that because no one wants to say

we're discriminating, because discrimination sounds bad. And last, but Ali, no one wants to say that we're giving a leg up to anybody because it undercuts some underlying idea of fairness or merit whatever that exactly mean it, and it makes the people who were being helped feel bad, some of them anyway, They don't you know, No, I'm not getting a leg up. I mean I don't feel that way at all. I have gotten a leg up. Don't

feel bad about it. You know, you get a leg up and you hope to vindicate yourself by doing good things. Seems to me that, you know, I don't. I don't think there's a bad thing about giving people a leg up. Well, it's also important to add in there that just about everyone walking around the NOD the university has had a leg up from somewhere, of course, And you know, I

mean I certainly had a significant leg up. I mean, you know, I remember showing up in college and realizing that I knew things about professors, and you know, I knew what books are reading, I knew where to go, and not everybody knew those things, and that was a huge leg up. Ira katz Nelson. You know, when affirmative action was white. The fact of the matter is that white people, rich people, absolutely we have had legs up. It's it just becomes obscured. We don't call it affirmative action.

We don't call it giving a leg up. They have all sorts of privileges, but we view it as you know, just sort of natural as right. One of the real big difficulties I think that we confront is we really don't know what we're seeking to accomplish. You know, we will use these terms racial justice, racial fairness, racially quality. Well what is that exactly? But so let me push

back on that. Don't we all know that if we had a society that distributed opportunity in the form of education fairly, that what we would then see is results of tests like this one, where the excellence of performing well on this test. And I'm not saying that's the only excellence there is in life, but where the specific excellence are performing well on this test would be demonstrated to be roughly equal across every part of the population.

And that's what racial equality would look like. An environment and where in which we had accounted for and repaired the legacy of discrimination so that every candidate really genuinely was on a level playing field. Isn't that the desert are on for everybody? I'm not, first of all, no, I do not think so, okay, tell me. I think that there is a real debate in our society about what we want. So you know, the majority of members of the Supreme Court would not embrace what you just said.

I would embrace what you just said, or at least largely. But there are a lot of people who would say no, no, no, no, no no. What racial fairness means is they have a procedural idea. Racial fairness means that you don't purposely discriminate against people. And if you're not purposely discriminating against people, hey, fairness. But if we both agree, that's not really fair, right, I mean true, I mean that's that's not defensible. I think you can only defend procedural fairness if you first

raised everybody to a level playing field. Otherwise it's genuinely not fair. So I take it what we're arguing about is okay, given that we haven't done that, we should We both agree we should do that. We haven't done that. Now, what I mean, you know, my my, my opening gambit is we've had an affirmative action regime in place for a couple of decades. Man. That regime is in my view, inadequate, unsatisfactory.

It has aspects to it that are real problems. I mentioned one before, the looks like America rationale another one. It's right, there is the whole problem of double speak. You know. The fact of the matter is we can't even partly because of the law, in particular the Supreme Court of the United States, people don't even speak frankly about what's going on. And so, you know, the diversity rationale, we don't even the universities can't even talk in terms

of distributive justice or reparatory justice. The very man you say that losing court exactly. So people have glommed on to diversity as a pedagogical theory. Everybody knows that that's not really what's animating it. But but we're trapped, we're trapped in double speak. And I guess one of the things that is, you know, impelling me at this moment is I feel impatient with the double speak. I feel impatient with you know now decades long regime. I want

something better for goodness sakes. So here's my question. And in some sense this is the thing that motivated me most to want to talk to you about this. It's twenty nineteen, but in twenty thirteen you spent your time and your effort, and your concentration and your focus in writing a whole book defending the traditional conception of affirmative action. Now I'm wondering what has changed in the last six years that's pushing the evolution of your thought on this.

I have a few candidate ideas, but first I want to, you know, get it straight from the horse's mouth. What do you think is causing your views to change? I am increasingly unwilling to settle for the double talk at school, and you've been around me. I say affirmative action. By the way, even that even that people don't say affirmative that phrase is gone. I say affirmative action. I say, why am I willing to countenance putting a thumb on

the scale to help out certain people. You know, some people say, well, that's reverse discrimination, that you're putting a thumb on the scale to help certain people. I have a justification for that. Yeah, I'm not embarrassed by it, but I think it should be stated straight forwardly. So

some of it is frustration growing frustration. Yes, So I was thinking in a big world of what's happened between you know, say twenty twelve when you were working on the book and then twenty thirteen when it came out. And now one thing I thought of immediately was we were eight years in office. To take the title of tany easy Coats's book, Obama was president during that period of time. There wasn't fundamental structural change with respect to

the social position or economication of African Americans. And so I thought to myself, well, here in Barack Obama we have the ultimate manifestation of the talented tenth. So if there is a justification for the talented tenth theory, he was it. Do you feel frustration connected to the thought that that didn't seem to pan out at the broader scale of change. No, I don't know that. That's not it. That is not part of my thinking. I defend affirmative action.

I think in fact that over the course of my life, affirmative action is one of the things about which America should be most proud. The problem is that it hasn't been pushed enough, and hadn't been pushed downward enough. It's not broad enough, it's not comprehensive enough. But if all that is true, why don't we look at using a single test for admission to some institutions and say, let's

be radical. Let's do something radically different that will involve a thumb on the scale, so you could give more points on the test to people from disadvantage backgrounds. That would be overt it wouldn't be fake, and it might make it. It It would make a difference statistically, it might, And I'm not horror struck by that. One difficulty with that is the problem of obscuring continuing weaknesses at my school,

my school, your school. I've been in you know, symposia, been in sessions where people talk about affirmative action, and I've heard students who, by the way, we're beneficiaries of affirmative action, get really haughty and indignant and and in fact, I'm sure you've seen this where students who you know have been benefited deny and get even angry if somebody

suggests that they were a beneficiary. In fact, that is part of the lore, the racial lore of elite institutions, where you know you'll have student, a Latino student, a black student. Well, you know, well, why are you mad? I'm mad because I was talking with my roommate, and my roommate suggested that, you know, the reason I'm here is because of affirmative action. You know, how dare he say that? And you don't think that student has a

point to say that that. It's a kind of assault on the person's equality or sense of being there to say that. No, no, no, you know no, I think that. I think what's happened is it might also might not be true in any given instance. It might be true, it might not be it might not be true. And that's right. And I've seen any number of white people who failed to get what they wanted and their way of sort of you know, accommodating failure. Oh I would have gotten it, but you know that black one over

there got it because of affirmative action. Now you think get an affirmative action, He just beat you out. Yeah, but let's go back to what I was talking about, because there is the student who takes offense. What that shows, and it's it's one of the you know, I've defended affirmative action. Does affirmative action have certain costs? However, Yes, it does have certain costs, and we've got to look at those costs, and this is one of them. There

is a certain sort of impulse for the nile. You know, No, I'm no, I'm not behind this kid to the left of me, whose parents, you know, went to college, who went to private school, who had all the benefits. My parents didn't go to college. Let's say my parents did, but let's let's imagine somebody whose parents did not. I grew up in a house that didn't have books. I didn't, you know, I didn't. I was behind, behind behind. That

kid on day one might very well be behind. But that's not a big deal, as far I would say to that kid, don't be ashamed that. It doesn't matter if you're behind one day one. What matters is what's happening on day three sixty five. You're not going to push yourself to catch up if you don't know that you're behind. Eighteen sixty five is not that long ago. Yeah, I knew my grandmother for most of my life. My grandmother's parents were slaves. For God's sakes, in eighteen sixty five,

the great mass of black people were illiterate. Yes, black people. And you know, and another thing about this, and when people talk about this issue, and you know how few black people got into, you know, the special school, there's a way in which these sorts of discussions make it seem as though you know, well, you know, poor black people. Damn you know what's deficiency, deficiency deficiency. Black people in the history of the world have absolutely a remarkable history.

If you take a look at where black people were in eighteen sixty five and where black people are today, black people have been coming on and coming on strong, will continue to come on strong, I think if they have to be clear eyed and the reality of racial oppression, continuing racial oppression is that's right, certain deficiencies. Don't forget that, don't overlook it, don't be ashamed by it. So you've got to be honest. You've got to be honest, that's right.

And you can't be soft. You've got to be tough. You've got to be willing to say, Yep, day one, I come to this class, I look around, I'm talking with people. You know, Yep, these other people they're ahead of me. And because they're ahead of me, I'm gonna have to work harder. I'm gonna have to go to the teacher and say to the teacher, let'stland, teacher, don't tell me that I'm just the same as John over here,

because no, I'm not. I'm behind John. What I want you to do, mister or miss teacher, is help me catch up. So in some sense, it's almost like you see the Deblasio's suggestion as an affront to the hard working efforts of people who are actually trying to double down and work harder. So saying let's eliminate the test somehow stick in your crawl because you think it's saying you can't succeed on the basis of I'm not. No, I'm not. The test is not a fetish to me.

But at the same time, let's look at the test realistically. Again. The test, as far as I'm concerned, as a seismograph, it is registering something. Let's pay attention to what it is registering. And the problem I sometimes with you know de Blasio's suggestion and others who you know, Let's get rid of the test, right, Let's get rid of the message that the test is bringing to us. No, no, no, I want to listen to that message. And what I

want is to change the message. I don't want to just get rid of the machine that is bringing the message to me. It's a deeply powerful lesson, and I'm really grateful to you for giving me the chance to talk to you about it. Well, thanks a lot. I hope, I hope you're going to write about it. Well, I write about everything else, I'll write about this. Thank you, Rendy, and thank you for being here on deep background to

be well. Since I talked to Randy Kennedy, a task force appointed my married Bill de Blasio has released a proposal recommending that New York City get rid of all of its gifted and talented programs and most of its selective admissions programs. The proposal wouldn't actually fundamentally change admissions at Stuyvesant or the other seven elite high schools, because admission in those schools is partly controlled by the state

government in Albany, and to be clear, Mayr. De Blasio has not yet said what parts of this proposal he will consider adopting. So we're going to continue to follow

this very fascinating and important story. In the meantime, though, there's something else that's been on my mind, something all the way across a continent and an ocean in Hong Kong, where protests that began by focusing on a specific law that involved the extradition of criminals from Hong Kong into China have blossomed if you like them, or ballooned if you don't like them, into a more fundamental challenge to

the legitimacy of the Chinese government's sovereign control over Kong. Now, there's something fascinating about this, because if you see politics solely through the lens of pragmatic self interest, it's sort of hard to imagine that anyone in Hong Kong would really think that the People's Republic of China, an enormous, powerful country, would do anything other than treat tiny little Hong Kong as part of its zone of control. That's what the British Empire thought when they ultimately acceded to

Chinese demands to hand Hong Kong over. They tried to get China to make some concessions in China, in fact, at the time, promised that it would abide by what it called one country, two systems. Hong Kong would be part of China one country, but Hong Kong would be allowed to maintain something of its distinctive British style government. That's the two systems part of it. Seen in terms of national self interest, no reason really to expect that China would stick with that deal when there was no

one there to force them to do so. And of course no other can tell China what to do when it comes to Hong Kong. So if you were a pragmatist or a realist, you wouldn't think it was worth risking your life going to the streets to protest against

Chinese sovereignty there. But on the other hand, if you see politics more broadly as a zone in which human beings try to express their highest aspirations, their ideals, their goals, then you can only look on with some degree of admiration, albeit in my case slightly horrified admiration, at these young protesters who really want Hong Kong to have some kind of de facto autonomy from the b A moth that is the People's Republic of China. Now, to be clear, it's not like a young Hong Kong or can be

deeply nostalgic for British imperial rule. It's not like the British applied a democracy in Hong Kong. Sure there were some local choices of figures, but really the colony was run by a Governor General appointed in Westminster in London. It was an empire and Hong Kong was a part

of that empire. Nevertheless, somehow the history of a period of time in which there was greater independence, greater freedom of speech, and greater opportunity to stand up and say what you like and don't like, has appealed to the minds of young people who are then making this very brave and from a realist standpoint, very foolhardy. Stand what

does that mean for the rest of us? How should we feel when we watch the looming cloud of Chinese troops being transferred into Hong Kong to send the message to the protesters that if you don't back down, there could be very serious and violent consequences. Well, I think it's an opportunity for us to realize that if our only conception of international politics is one that's framed in terms of pure power. Then you just have to say, oh, those poor SAPs, you know, why are they taking these risks.

It's all going to end badly for them. That's a cynical attitude, and it's a cynical attitude that leaves us unable to address the more fundamental to me aspirational or moral question, which is how should humans live? Should humans actually deserve to have the right to have a say

in their futures? Is it okay just to say that the People's Republic of China with its form of government, is the appropriate form of government for the people living in Hong Kong, And I want to say, no, we really isn't It is appropriate for human beings to try to govern themselves. It's inspiring to see people trying to do their best. It's moving to see people nobly taking a risk, risks to themselves in order to demand some

form of independence. We shouldn't be pure cynics about foreign affairs, because if we are, there's not much left to our moral stance. All we can then say is the powerful do what they will and the weak suffer what they must. At the same time. The real world is the real world. The United States is limited in what it can do to influence China with respect to what's happening in Hong Kong. So I'm not saying give up on a pragmatism. You need to use pragmatic tools to get where you want.

But what I'm saying is, when we set our goals for how we want the world to be, we can't just assume that the powerful get what they want. We have to also simultaneously believe in the possibility and the desirability of making the world a more just and fair place than it currently is, even under circumstances where getting there is very, very difficult. Indeed. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Genecott,

with engineering by Jason Gambrel and Jason Rostkowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis gera special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. Is Deep Background