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This article appears in the April 2025 issue of The American Prospect magazine. Subscribe here.
Randall Kennedy is one of our most eminent scholars of race and the Constitution. He holds the Michael R. Klein chair at Harvard Law School. He is the author of numerous books and law review articles, as well as popular magazine pieces, and served as a law clerk for Judge J. Skelly Wright of the United States Court of Appeals and for Justice Thurgood Marshall of the United States Supreme Court. He has been a member of The American Prospect board of directors since the late 1990s.
Robert Kuttner: We’ve seen President Trump and his appointees use an attack on supposed excesses of DEI to destroy basic civil rights enforcement and even to purge senior Black and female appointees, on the premise that they must have been unqualified diversity hires. This is a restoration of the crudest form of racism. How should we think about this assault and how can we combat it? DEI may have overreached in some respects. Is there a version of affirmative action that is a more defensible high ground?
Harvard University
Harvard Law professor Randall Kennedy
Randall Kennedy: DEI didn’t come out of nowhere. It came from a justifiable, indeed admirable, desire to go beyond anti-discrimination—to recruit and welcome and support people affiliated with groups that had long been excluded from coveted positions as students, professors, staffers, employees, and executives. We must not permit reactionaries to induce an amnesia that allows people to forget that, within living memory, racial minorities, women, and LGBTQ folk were openly excluded and marginalized and taunted at leading institutions. In its essentials, DEI has attempted to redress the lingering effects of those terrible wrongs.
Have there been mistakes made under the banner of DEI? Of course! No significant large-scale policy initiative will be free of mistakes. A big mistake made by many DEI bureaucrats has been to use their authority coercively to impose contested modes of thought and speech upon people. In many colleges and universities, for example, hirings and promotions have been conditioned upon candidates submitting statements in which they are required to attest their allegiance to what had become a stultifying DEI ethos that propounds aims deemed to be unquestionable, in a mandatory rhetoric. If I was applying for a teaching position now, for example, the DEI apparatus at many institutions would probably exclude me, openly or covertly, because, among other things, I often use the term “Negro.” The penchant for coerciveness, the unwillingness to be self-critical, and the susceptibility to faddishness displayed by many DEI bureaucrats have made their label toxic not only amongst conservatives and reactionaries; they have also succeeded in alienating a good many liberals.
One of your most important books is titled For Discrimination. It’s a broad-spectrum defense of what some people would call reverse discrimination as a necessary counter to the whole legacy of racism. And now here comes Trump, using DEI as a pretext to undermine the most fundamental kinds of anti-discrimination enforcement and to justify crude racism. What do we do now?
One: We proclaim loudly our goal to create a multiracial democracy freed of the powerful pull of pigmentocracy and all other illegitimate social hierarchies—a society that enables the flourishing of descendants of slaves and slave owners, victims of conquest and conquerors, undocumented and documented immigrants, and people of all faiths and genders and sexual orientations. In other words, we proclaim loudly an updated version of Martin Luther King Jr.’s majestic “I Have a Dream.”
Two: We denounce unequivocally the racism and other bigotries and pathologies that are so much in evidence in the policies propounded by the Trump administration and its backers. The Trump people say that they are sincere allies of equal opportunity who want to rid the landscape of “special privileges” that disadvantage whites. For the most part, that is untrue. For the most part, what we are currently witnessing is a reprise of an old, recurrent syndrome of racial resentment that perceives any efforts to improve the situation of racial minorities—particularly Blacks—as a form of “reverse discrimination.”
Three: We act and speak in ways that show our attentiveness to the imperative need for coalitions. Left-liberals will be unable alone to retake crucial sources of political power: seats on courts, mayoralties, governorships, school board positions, state legislative posts, seats in the House and the Senate, and, of course, the presidency. Left-liberals will have to persuade people to their right on the political spectrum to join them in creating an attractive, flourishing, decent society. Left-liberals cannot afford to gratuitously alienate potential allies. We have erred on this matter, including on issues implicating racial justice. Some of our most militant and vocal activists have done very useful things like put the problem of racist police misconduct on the front pages of newspapers. On the other hand, they have also done very dumb, destructive things like defend looting and contend that a modern society can exist without some agency empowered to restrain criminals, aka police. Those missteps have cost us dearly, contributing to the Trump ascendancy.
Four: We maintain a willingness to rethink our positions. Consider, for example, affirmative action. It has, on balance, benefited society by speeding up the process of integrating wrongfully burdened and stigmatized outsiders into important sectors of American life. Those who have been proponents of affirmative action should be proud of what they have been able to accomplish. But affirmative action is merely a vehicle intended to advance social justice. It is not an end in itself. Like all vehicles, affirmative action needs retooling.
There is considerable potency to the complaint that affirmative action is insufficiently attuned to those whom William Julius Wilson called the “truly disadvantaged.” That is because affirmative action tends to help most the most privileged members of beneficiary out-groups. We ought not permit fear and anger at ill-motivated right-wing vilification to prevent us from reconsidering various features of affirmative action. Have we overinvested in it? I have participated in numerous debates over affirmative action in which the matter at issue was whether a Black student would attend the University of Michigan Law School as opposed to the Michigan State Law School, or attend the Columbia Law School as opposed to the Fordham Law School. If you are a plausible candidate for admission to any of these law schools, you are a college graduate with an impressive record. You stand to fare well in the overall scheme of things. By contrast, I have participated in few debates that focused on the plight of those who don’t graduate from high school, or, if they do graduate, do so with grossly deficient educations that make upward mobility difficult if not impossible. Shouldn’t the “truly disadvantaged” who stand to gain little from any affirmative action plan get more attention than they typically do from progressive activists and intellectuals?
Five: We embrace, protect, and, if need be, rehabilitate good ideas that progressive forebearers have bequeathed to us. All too often, we have permitted the right to snatch from us attractive images, ideas, and slogans that they have then used effectively in the struggle for public opinion. A few moments ago, I alluded to King’s “I Have a Dream” oration. Many of my progressive students roll their eyes when I laud that great speech. They view it as unattractively sentimental. Meanwhile, ideologues on the right wrap themselves in that speech and assert that its spirit is emblematic of their racial politics. That is an act of grotesque misappropriation. But liberals have facilitated it by neglecting to emphasize sufficiently their allegiance to Kingian universalism. The same is true of a term that is now anathema in many left-liberal precincts—“color-blind.” Liberals eschew the term, while conservatives and even reactionaries extol it.
Like many resonant phrases, “color-blind” can mean different things. The right uses it as a cudgel with which to flail at any effort to redress the legacy of racial wrongs, thereby perpetuating an unfair racial status quo. We should, of course, reject that deployment of the term. Rather, we should recall that for a long time “color-blind” was a term that enemies of white supremacy used to repudiate the notion that whiteness should be privileged. It was the watchword of Lydia Maria Child and William Lloyd Garrison and Charles Sumner and Albion Tourgee and Thurgood Marshall and Bayard Rustin and Constance Baker Motley and Martin Luther King Jr. To be appropriately color-blind is to recognize the full humanity of others free of misleading distractions unleashed by racial mythologies.
Liberals have saved the United States before from racial and other vices. They can do so again with intelligent, persistent, skillful collective endeavor.
