Randall Kennedy: The Supreme Court and Affirmative Action

Randall KennedyDate of Lecture: September 17, 2012

About the Speaker: The Michael R. Klein Professor of Law at Harvard, Randall Kennedy focuses his research on the intersection of racial conflict and legal institutions in American life. His books include "Persistence of the Color Line: Racial Politics and the Obama Presidency" (Pantheon 2011), "Interracial Intimacies: Sex, Marriage, Identity and Adoption" (Pantheon Books 2003), and "Race, Crime, and the Law" (Pantheon 1997). He is currently completing a book on affirmative action. He served as a law clerk to Supreme Court Justice Thurgood Marshall, was a Rhodes Scholar and is a fellow of the American Academy of Arts and Sciences.

About the Lecture: In October 2012, the Supreme Court will hear arguments on Fisher v. University of Texas at Austin, a case which threatens to end race-based affirmative action practices in admissions programs at public colleges and universities. Prof. Kennedy highlights the history of race-based affirmative action in higher education, offers a prediction of the Supreme Court's ruling in the case, and explains his support for "sensible" affirmative action policies as restorative justice to disadvantaged populations.

Scroll down to watch the lecture below or download it free from iTunes U.

*This event was followed by a campus fishbowl-style discussion of Affirmative Action at Holy Cross on October 1, 2012. Learn more and watch that video here.

Tell us what you think!

If the Supreme Court rules to end race-based affirmative action at public colleges and universities, many observers believe the ruling would also affect private institutions that receive some federal funding, including Holy Cross. What ethical questions does this raise: Does affirmative action help or hinder us from becoming a more just community at Holy Cross? Does it help or hinder us from doing the most good for American Society?

The McFarland Center welcomes your experiences, comments and questions. Your submissions may be published online and/or in the Holy Cross Magazine.



To me this issue about admissions is not soley confined to African Americans. Since i attended in the '70s I have been adamant that not enough has been done to recruit Mexican Americans from the Southwestern part of the U.S. I still maintain that stance. The Latino community is diverse-yes the College recruits From Puerto Rico and from Florida and NY/NJ and most of the Latinos there [many of whom I remember with much affection] have their ancestry in the Islands of the Caribbean. What about Latinos whose roots are from Mexico, the countries of Central and South America? Just the humble opinion of a Texan from the Mexico-U.S. border. After all, are not the Jesuits a teaching order from Spain?

Murray E. Malakoff


This is certainly an interesting topic and one that I'm glad to see the greater HC community taking an interest in, especially considering Justice Thomas' role in the Court.

My personal view is that race-based affirmative action, while certainly strengthening diversity, creates an inherently unequal admissions process for all involved. Applicants are left to wonder whether they were admitted or rejected not based on academic merit or ability, but rather the color of their skin - a factor over which they have no control.

If true equality is the fundamental basis for civil rights, how can one justify such an unequal process in which one's race, gender, or any other non-merit factor impacts an admissions decision? Would it not be more equal to all involved if applicants were selected solely on their academic merit and strength of character, rather than their race?

Undoubtedly the College will address this interesting issue with the rigor it deserves. Looking forward to the healthy dialogue and reading about the Supreme Court's decision.



Affirmative Action is racism. Racism is always and everywhere wrong. There are a multitude of ways of solving the problems that are allegedly solved by Affirmative Action but which are not racist.

Michael Falivena '63


To Andrew: Are you aware that highly competitive liberal arts colleges such as Holy Cross practice affirmative action for male applicants? The pool of qualified boys is smaller, and without "boosts" based on sex and other factors your student body would be mostly girls from a much more limited number of states and high schools. Some colleges seek at least one student from each state, so that an applicant from, say, Delaware, has an advantage. Unfair? Children of alumni typically have an advantage as well. No one goes to court to try to eliminate these well-known practices. Why is it that race, and only race, seems to trouble us so much, given that preferential treatment inevitably goes on in every domain of life? That's what I took away from this very interesting lecture. And I loved Kennedy's point at the very end of the Q&A about putting an asterisk next to Babe Ruth's name since he didn't have to face all of the best pitchers of his time. (For you younger kids, that was what was done to Hank Aaron when he broke Ruth's record.) Before listening to this, this middle-aged white person tended toward Clarence Thomas's view that affirmative action potentially places a cloud over the recipients. But I now see the issue as much more subtle than that. Kennedy has some very, very compelling arguments. It reminds me of what has been said about our jury system of justice: it is not a perfect system, but it's the best system.

A Holy Cross parent


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