Randall Kennedy is the Michael R. Klein Professor of Law at Harvard Law School. He has written widely about race and its effect on American society and the law.
In this week’s conversation, Randall Kennedy and Yascha Mounk discuss how racism in American life has changed and the ways in which it hasn’t, why we should move towards a more fluid sense of individual identity, and why he remains optimistic about America.
The transcript has been condensed and lightly edited for clarity.
Yascha Mounk: I've learned a lot from your work. I feel like one of the big questions to ask about the American legal and political system is how to combine the recognition of the group-specific injustices that have defined it for a really long time with the aspiration to a set of universal rules and norms that will actually treat everybody equally. How have you thought about this tension, and why do you tend to fall on the side of those who defend a form of human universalism (even though we recognize that so often in American history, particular groups have been excluded from its purview)?
Randall Kennedy: It's a big topic, and I've been wrestling with it and continue to wrestle with it. And I'm conflicted. I think in my writings, I show that conflict; I haven't satisfactorily synthesized it. On the one hand, in some of my writing, I plant my flag with my people, by which I mean my black people, my African American people. I will talk enthusiastically about my pride in what my people have accomplished in the face of such terrible oppression and deprivation, and sometimes I'll proceed in that manner. But sometimes, on the other hand, I will say, “What's good about race pride?” Why should I take pride in being black? People should not be ashamed of their race, but for the very same reasons it’s sometimes argued, similarly, why should you take pride in your race? I didn't have any control over my parents, or what society deems me to be racially. These are ideas that have been in tension in my writing and thinking, and they still are.
Mounk: What are some of the points where they end up being in tension, or perhaps even in conflict in a concrete way? Why isn't it possible to fully embrace each of the elements of what you just said, and not worry about ways they might come into conflict?
Kennedy: Well, should I feel more of an allegiance to black people? And if I do, why should I? I can imagine a white person saying, “I feel more allegiance to black people, because after all black people have been marginalized, black people have more need of my assistance.” Anybody of any complexion could say that, and actually, I'm rather drawn to that. I kind of like that idea. On the other hand, suppose somebody says, “I'm drawn to black people, because I'm black.” In fact, one hears this all the time: “I demand that people who look like me be on this TV show, be on this faculty, etc.” What's special about that? Where's the virtue in that? White people could say that too, in defense of the status quo.
There was a time not so long ago in my life when I could walk across campus, and any time I crossed paths with a black person, there would be a certain nodding of the head or a certain gesture; maybe I would say something like, “Yo.” There would be some gesture of recognition. I actually took comfort in that. It was a performance, and I expected it in return. Well, that had certain good things, it was reflective of certain sentiments that were good. On the other hand, it was reflective of a certain sort of tribalism. Is that a good thing? It's a lot different now. I go across campus—and I think this is because of the changing demography of the campus—I cross paths with black people, and some will engage in this ritual, but many will not. And is that a bad thing? Maybe. Maybe it's good, maybe that's a suggestion that we can cut out the habitual automatic acknowledgment of the uniform of race and be more attentive to individuals. One might argue that now people are more attuned to individuals. They'll give the gesture to people that they know, but they won't do that just based on the uniform of race.
These are some of the ways in which I think these issues crop up. I think they're important. People often say—and I think this is still the ascendant, conventional line with respect to race—“Well, eventually, we want to get to a place where race doesn't matter.” I think that that is still probably the ascendant racial line. But is that true? Is it true, really, that black people want a society in which organizations that have historically been black go by the wayside, even when they reach the racial Promised Land? There needs to be more attention paid to questions like that.
Mounk: I've been thinking a good bit about the similar idea of strategic essentialism, which as I understand it, was the attempt to come to terms with a form of postmodernism which basically said, “Well, look, we should recognize that people have historically been discriminated against on the basis of these arbitrary racial and ethnic, sometimes social, categories. So we should try and encourage them to organize along those lines in order to fight back against injustice.”
Kennedy: When people are hurt, they often organize around the basis, or at least the perceived basis, of the hurt. We see that over and over again. Look at the power of nationalism around the world. It seems that it's much more difficult to organize people on the basis of universalistic aspirations. In World War I, Marxists were really quite disheartened at the willingness of working class people to march to their deaths in droves under these various flags. But these various flags seem to be more inspiring and generate more loyalty than affiliations demarcated by class.
Mounk: Often, that is an identity that people feel like they choose because of some positive identification with historical processes: when they say, “I'm an Italian; we should really be ruled together because we have these cultural similarities and so on,” that's different from some identities that are imposed because of oppression or historical injustice. I am somebody who is a Jew, and who calls myself a Jew, but has no religious belief (and whose parents and grandparents had no religious beliefs) who grew up without any significant form of Jewish ritual, but for whom being Jewish was nevertheless an evident part of my identity, given my parents and grandparents’ history and given that I grew up in Germany. But that seems to me to be a different way of accepting an identity, in part because of its imposition in a context of injustice, to something like Italian patriotism.
But it seems to me like there's two separate questions here. The first of which is: Can we ever get rid of groups, or of the human tendency to discriminate in favor of in-group and against the out-group? It's even very easy to say, for instance, “I'm part of a group of cosmopolitans, and if you're not, then I get to legitimately discriminate against you.” We're always going to have that groupishness, so how do we manage that, in order to maximize the potential benefit it can sometimes have (like sustaining schemes of social cooperation) while minimizing the very obvious dangers?
Kennedy: Yeah, I'm not sure how to respond. I like the idea of choice, though I think a lot of people do not. For instance, you talk about the Italian people—well, do they say that they are Italian by choice? Or did they just say, “I am Italian”? Whether it's nationality, or race, I think there's a lot of real resistance to the idea of choice. In the United States, we've had these instances where the child of white parents decides they want to be black, and they present themselves to the world as black. And once it's found out that their parents are “white,” people jump all over them. “How dare you? What a betrayal! This is fraud.” In fact, people view that as a vice.
I like the idea of choice. I like the idea of people choosing to be black, or for that matter, resigning from the race. That does not bother me. Neither does somebody saying, “I really dig the way y'all do things, your styles, music—I'm going to become black.” I have no problem with that whatsoever. But what is going on with me is a notion of identity as choice and I like the idea of identity as choice.
Mounk: I suppose at an individual level, it means that we should live in a society where identities play an important role, but there's still a real fluidity about the extent to which they determine the fate of each of us and the extent to which we ourselves choose to identify with groups that we're from. I guess, at the collective level, it doesn't necessarily need to imply fluidity. Which is to say that for you, you think that something might be lost if every African American decided to resign from their race, and that may not be a realistic prospect, in any case. But for you that doesn't mean that that particular individual should somehow be considered morally wrong, or as being perhaps traitorous, if they make that choice. Help me puzzle through this.
Kennedy: It is a puzzle. And like many important puzzles, it has left an imprint in our law. In the United States, throughout our history we've had racial laws. And the whole question of who was what race was very important. Whether you could be enslaved or not might very well depend on what race you are assigned to. More recently, when affirmative action was first becoming somewhat prevalent, one question was how we will determine who gets to benefit. And there were some people who were saying we ought not have affirmative action, because after all, if you have affirmative action that's going to necessitate putting a racial designation on people. And won't that lead to all sorts of intrusive, obnoxious investigations: Who are your parents? Are we going to have a hair test, or a lip or nose test? You had, by the way, such tests in American history. In the segregation era, there were many cases involving, “Is this person a negro or not?” You bring in an anthropologist, you bring in all sorts of people to give expert opinion on things. Today, we have affirmative action. How do we answer the question of whether someone is eligible? Now, the way this is worked out in many institutions, specially educational institutions, is basically an honor system. You check a box—now, does anybody check up on the checking of the box? No one checks up on the checking of the box. You just check the box and that’s that. There hasn't been a lot of writing about this. My sense, however, is that a decision (maybe it was implicit or unconscious) was made that we are going to use an honor system; even though there is the specter of fraud, we're willing to take that as a price of doing business, because we really don't want to get into policing the identity line. And I think, frankly, in most of American society, that's the way it has worked out.
Mounk: We agree that cases of affirmative action fraud are probably quite rare. I wonder whether there's another thing which might be more common, which is people who do have a genuine connection to a particular ethnic group, but who don't have a very strong identity as belonging to it, being incentivized to own that identity, at least for the purposes of ticking the box, but perhaps for purposes of how they think of themselves and present themselves more broadly. For example, friends and acquaintances of mine know people in the academic job market who are told by their advisors, “You have these links to Latin America; you should lean into that, by ticking that box or having that mentioned in a recommendation letter, perhaps even by adopting a first name that signals it more clearly.” How should we feel about that effect?
Kennedy: I'm not sure how we should feel. It could be a very bad thing if it is, for instance, coercive, and prompts people to adopt a self-presentation that they themselves view as false. So I suppose it can be bad. On the other hand, when people have been engaged in a struggle, and have mobilized around identities that have come under pressure, there are certain entailments. One entailment is that you might dress in a certain way, adopt a certain posture, call yourself a certain thing. You're down with the cause, and in being down with the cause you do various things to advance that group. Some of those things can be very good. Can it have a bad side? Yes, it can.
There are two things I want to throw in here. You talked about this question of racial fraud being rare, and we really don't know that much about it. There is one context in which we do know about racial fraud, and there is a context in which racial fraud has actually been punished criminally. For instance, in settings where you have businesses: is this a minority-owned business? And there are people who come to find out that the nominal head of the company was a racial minority person. But the actual force behind the company, the finance behind the company, let's say, was from a white person. There have been people who've been prosecuted and sent to jail for that. So there is an element that we know about.
Now let me give you one other case, in Massachusetts. It's a very interesting case, involving two brothers, the Malone brothers, who wanted to be firefighters. White guys. So they apply to be firefighters. They do not succeed the first time around. The second time around, they mark that they are black, and they get jobs and they're firefighters for a while. One of the brothers then applies for a promotion, and he gets the promotion. When he gets the promotion, a person writes an anonymous letter saying, “These guys are white. This is fraud.” It goes all the way up to the Supreme Judicial Court of Massachusetts, where a single Justice of the Supreme Judicial Court of Massachusetts decides the case. What the Justice says is, “I am not going to ask the question of whether the Malone brothers are white or not. Rather, I'm going to ask the question whether the Malone brothers actually think of themselves as black.” It's not a question of what they are; it's a question of good faith. What do they think they are? And the Justice ruled against them, saying that based on the evidence (how they had over time referred to themselves, are they members of the black firefighters organization? Etc.) they really do not think of themselves as black. He came to the conclusion that they did not view themselves in good faith. They did not view themselves, honestly, as black people, and so therefore, he ruled against them.
Mounk: That’s an ingenious way of sidestepping the obvious lurking danger here, which is the state reverting to some visual determination of blackness.
We've talked a little bit about the law. And now I want to broaden the discussion a little bit. Your work has dealt—not exclusively, but in part—with various questions to do with race and American law. At the same time, you've been quite critical of what has become the dominant way of working on race in American law, and particularly of critical race theory. So I guess I would love to understand what you see as the limitations of this intellectual tradition, and how it is that we can take seriously the many issues that it evidently raised in American law, without entirely embracing it.
Kennedy: Well, first of all, when we use the term “critical race theory,” we need to be very careful about exactly what we are talking about. When I hear the term now I put quotation marks around it immediately, because when people (especially those attacking it from the right) make references to it now, they're often making references to a boogeyman that they have created to advance their political aims. They have created something that is unattractive, completely doctrinaire, that they can mobilize against. That's the boogeyman version of critical race theory. Now, there is another version of critical race theory that would be writings and speeches by a wide range of people, those with whom I'm most familiar being people in legal academia. And indeed, I think it's right to say that it was within legal academia that this term really took off: the writings of people like Kimberlé Crenshaw, Richard Delgado, Mari Matsuda, Charles Lawrence, Derek Bell, Gary Peller, others.
What do I think about their work, that stems from the 1980s and has gone under the banner of critical race theory? I have various responses to it. Let me start off with my positive response. My positive response is that the people who call themselves critical race theorists are onto a very important point. The central point of critical race theory is that racism is deeply embedded in American life—indeed, virtually ubiquitous. That, it seems to me, is correct. I know plenty of people who do not call themselves critical race theorists, but who would embrace the proposition that racism has been and is to this day a central feature of American life, whether we're talking about the most public aspects of American life (voting, office holding, jury service) to the most intimate spheres of American life (friendship, sex, adoption, marriage). Fine—I applaud that. I have no problem with that. Now, are there other features with which I do have problems? Yes. There are a variety of features of critical race theory with which I have problems. One that was pretty fundamental, had to do with the relationship between status and thought.
One of the writings that was probably my introduction to this thing that is now known as critical race theory was an article by a guy named Richard Delgado—I think it was called “The Imperial Scholar.” Basically, the point of the article was that white legal academics, most of whom were liberals, had in his view colonized academia, including race relations law, such that they refer only to one another, they debated with one another, but they ignored and implicitly put down scholars of color. That was the claim. And in elaborating his point, he said, “this is bad,” (and, of course, if it were true, I would agree), but then he went on to say that not only is this bad insofar as it is excluding people on a non-meritocratic basis, but he went on to suggest that it's also bad because, after all, minority scholars have more of a claim to attention than whites because of their status; minority scholars have more insight because they're minorities. They have more insight into American racial problems, and so they should actually be given more credence because of their racial identity. No. I'm very much against that. Because if you go along with that, that means that racial identity now becomes an intellectual credential. It means that we can appropriately put boundary lines in the realm of culture. And I'm totally against all of that. You write about a subject and then I want to read what you have written, and if you have written something that is great and insightful, then fine. I don't care if you're white, I don't care if you're American. Maybe you're from some other place. I don't care! I don't think that these identities constrict our ability to know things. Identity becoming a part of knowledge certification—to the extent that that was part of CRT, I disagreed and disagreed very strongly.
There was another aspect of critical race theory which prompted me to disagree, and it's very relevant to discussions going on today. There were certain critical race theorists—notice that I said “certain,” because there are a lot of people who are critical race theorists, and they disagree among themselves (I'm not saying that there's some sort of monolithic CRT, or that they all believe the same things)—who believe, for instance, that there has been no appreciable racial change in the United States of America. “What we have today is neo-slavery”—as far as I'm concerned, that idea is untenable. One person who was very important in developing this idea was a colleague and a friend of mine, Derek Bell—The Permanence of Racism. And he applauded the second reconstruction—the civil rights movement—but basically said, “Ultimately, white folks stayed on top.” Now, I guess it all depends on what counts for you as appreciable change. The fact that there was a black American who was the president of the United States for eight years? For me, that counts as appreciable change. Is it revolutionary? Does it mean that everything is changed? No. Does it mean that because Barack Obama became president of the United States that we don't have a racial problem in the United States now? No. It didn't mean any of those things. But did it mean that racial beliefs, racial habits, racial conduct had changed in my lifetime? Yes.
And finally, I disagreed with some critical race theorists who, in my view, are all too inattentive to the importance of protections for civil liberties. And of course, it's ironic to say this now, since critical race theory is under attack by people who want to erase critical race theory. And I defend critical race theory, and defend it to the -nth degree. Why? Because I believe in freedom of thinking. I believe in freedom of teaching. I believe in freedom of listening. I want the critical race theory to be available to people, even though in certain dimensions, I disagree with it very strongly. But we need to defend intellectual pluralism. And I think some people in critical race theory have not been as attentive to the importance of the defense of intellectual pluralism as they ought to have been.
Mounk: I've been immersing myself in reading Richard Delgado, Kimberlé Crenshaw, and Derek Bell as well as some of the other figures you've mentioned, and one of the things I'm struck by is the rejection of the perfectibility of the social world and the rejection, in particular, of the idea that we may be able to use some of the longstanding standards and principles we've had in the United States in order to bring people who have been unjustly excluded from them under their purview. Derek Bell, who you mentioned, came to be deeply ambivalent about Brown v. Board of Education, arguing in some moods (I feel like his position on this topic is complicated and a little ambivalent) that, in fact, the United States should have provided African Americans with high quality segregated schools instead of integrating public schools. For me, the biggest concern about the original set of sophisticated, interesting scholars who adopted the name of critical race theory for themselves, is this deep rejection of a future in which we can use those kinds of universalist principles to make progress towards real justice.
What kind of vision of the future do you think we should be aiming towards? What of the critical race theory tradition is helpful in thinking about what kind of future we want, and in what ways should we reject that critical race theory tradition in order to get to a better future?
Kennedy: A very central thing that critical race theory was reacting against was the anti-discrimination standard, which, for some people, was allied with colorblindness—the idea that everybody should be treated the same, and let's go forward from there. Now, I think that some of the people in critical race theory reacted very strongly against that, on two grounds. One ground was, well, if we adopt the anti-discrimination standard, certain versions of it are used against affirmative action. They say that it is racial discrimination and that it should be struck down. I think there were people in critical race theory who said, “We don't like this. Because if we allow that regime to go forward, what will happen is that we will not be able to do anything about the accumulated disabilities that we are inheriting from the past.” If you just have a strict anti-discrimination standard that is forward-looking, then what about past disabilities? That was one of their arguments.
And of course, there were liberals who said, “The way we're going to handle that is to have a time-bounded exception to our anti-discrimination standard.” And frankly, that's what we've had for decades. And that was in a sense the view of Harry Blackmun or, for that matter, Justice O'Connor: We're going to hold to the aspiration of an anti-discrimination standard, but for a certain period of time, we're going to have an exception. Well, the critical race theory people said, “We don't trust your exception.”
There was another thing going on with critical race theory. I think many people in critical race theory had been inspired by the Black Power movement, inspired and animated by certain features of black nationalism, and they really didn't like this race-blind, “we're all the same under the skin.” — “That stuff is marginalizing something that we find very important to our identity, that we are part of a black nation.” And I think these two things were a part of what was animating a reaction against the sort of race law liberalism that they found unsatisfying.
There's a competition going on—a competition for attention. So you have these liberal people talking their thing, and if you're new on the block, you want to get attention and create your own niche. You pick strategic fights. I'm not accusing anybody, people do that all the time. Law and economics, for goodness sakes! Critical legal studies! That's what people do to put themselves on the academic map. And oftentimes you criticize people who are at least going to be willing to talk to you and take you seriously. Richard Posner was not going to take critical race theory people seriously, though he did write about critical race theory. I will give him that. But frankly, he was rather dismissive, as were a lot of other conservative legal thinkers. Liberal legal thinkers, however, were not going to be dismissive. They were going to be very hurt when scholars of color accused them of being racially insensitive or racist. They were going to engage. It made a lot of sense to jump on people who were going to respond to you in a way that was actually going to be rather helpful. One thing that, it seems to me, the historian of critical race theory is going to have to confront—again going back to Richard Delgado—is: if these scholars were so imperialist and insensitive, how does one account for critical race theory getting traction and actually blossoming? I mean, it's not like Kimberlé Crenshaw was sent to Siberia—she's a professor at UCLA and at Columbia! Nice places. Chuck Lawrence was at Stanford. The Dean of the unit of Boston University Law School is a leading critical race theorist. It's not like folks have been sent to the margins of academic life. They actually occupy important positions. One has to ask the question, how did that happen?
I have seen this problem in my own work. I'm very concerned about the state of civil liberties and freedom of expression and freedom of thought. I think that there are occasions on which I have been more exercised by people who were ideologically closer to me, than people who are on the right. I've gotten really quite exercised with people who were ideologically close to me, but who I thought were acting in very repressive ways—some professor, reading from a book, mentions a certain word. “Discipline that person! You can't mention that word.” I've gotten really hot under the collar about that. Then when the right wing came with its campaign against critical race theory, I was horrified by it. I didn't like it. But there was a part of me that said, “Well, what can you expect?” And I did not immediately pick up pen and paper and go after it. And partly, I didn't go after it because my expectations were so low. I think that's a mistake. I think that intellectuals should recognize that there is a problem of moral and intellectual hygiene. And we need to be aware and attentive to problems of moral and intellectual hygiene wherever those problems show up. If they're on the right—fine, go after it. If they're in my camp, the camp of progressives—okay, go after it. But wherever it pops up, we need to attend to it because frankly, you never know who is going to be powerful.
Mounk: To close off the conversation, I'm going to push you a little bit more about the future. In a recent interview, based on a collection of essays you published last year, Say It Loud!, you said that “my ambitions on the racial front have shrunk. I feel chastened. That's why I'm talking about racial decency as opposed to racial equality. My sense of what is possible in the foreseeable future has been diminished.” How much should we aim for in the future, how much can we aim for, and how can we combine that sense of disappointment with the creation of a vision of a future that we'd actually want to live in?
Kennedy: Two things. One: for all of my adult life, I have been a racial optimist. I have been part of that community that says, “We shall overcome”: despite slavery, segregation, and all of the horrors that are part of our past, we shall overcome. Part of the reason why I have felt that way is because the trajectory of African Americans and America has been, as far as I'm concerned, best captured by the title of John Hope Franklin’s wonderful, synthetic work, From Slavery to Freedom. I'm 67 years old. I was born in 1954. I've seen considerable change in American life, and I've benefited tremendously from change in American life. And to the extent that there has been change, that suggests that, if there has been change, can't there be more change? And I think that there can.
When I wrote that passage that you read, I was really very much in the grip of a really terrible feeling that had been generated by Trump winning the election and becoming president of the United States. If somebody had asked me 15 years ago, can a person like Donald Trump become president of the United States? I would’ve said “No! Come on, let's talk about something serious.” Well, clearly, I was wrong. I've written on several occasions that any ambitious politician with national aspirations would avoid trafficking openly in racial resentment and racial animus—even if they felt it, even if they believed it, they would cover it up because it would just be politically suicidal. I was wrong! Donald Trump became president. And then the last election was close. The United States of America enjoyed some good luck in avoiding the re-election of Donald Trump. In any event that really shook me. And I said in my book of essays, “Well, I'm still an optimist, but I'm a shaken optimist. I'm a chastened optimist.” And indeed, I suggested that part of my optimism was nothing more than faith, because after all, I've got three kids in their 20s, and I want them to have a good life. And so just as a matter of faith, that was part of my optimism.
Today, I feel a little bit differently than when I wrote that introduction to my book of essays. I still feel chastened. But I also think it's important that while we recognize the importance and the power of racism in American life, we also should fully recognize and appreciate the power of anti-racism in American life. Yes, it's very important to know about John C. Calhoun. It's also important to know about William Lloyd Garrison. It's important to know about George Wallace. It's also important to know about the people who rose up against George Wallace. It's important to know about Trumpism but it's also important to recognize the people of all complexions who were doing all that they could to save the country. If I had to choose one person to embrace in terms of racial thinking about America, the person who I would choose would be Martin Luther King Jr. He had seen racism up close. He was not a sentimentalist. He was realistic. But Martin Luther King Jr. said, in the hours before his death, “I've been to the mountaintop. I've seen the promised land. I might not get there with you. But we shall get there.” And I guess at this moment, I want to revisit Martin Luther King Jr. and re-embrace that and other aspects of his thinking. Will there be a need for struggle? Yes. Will there be a need to struggle for a long time? Yes. But is there realism in thinking that through intelligent, persistent, collective effort, we can create a better United States of America? Yes. Let me stop there. That's where I am at this moment.
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