Barack Obama has gotten past affirmative action. Have we?

Barack Obama has gotten past affirmative action. Have we?

Barack Obama has gotten past affirmative action. Have we?

The law, lawyers, and the court.
March 31 2008 7:39 PM

Shades of Gray

Barack Obama has gotten past affirmative action. Have we?

Barack Obama. Click image to expand.
Barack Obama

When it comes to the question of race in America, Barack Obama is used to hot tempers, accusations of bias, protests, speeches, and outrage. In 1990, Harvard Law School was a battleground in the identity wars: The faculty was angrily split over minority hiring and how to teach race in the classroom. Two years earlier, 50 students had occupied the dean's office, demanding a more diverse faculty; and that spring, Derrick Bell—the first African-American to get tenure at Harvard Law School—resigned over the issue.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Similar tensions roiled the Harvard Law Review. The students were up in arms over—among other things—the role of race and gender in the selection of editors. "That year was unusual in that there was a group of very assertive conservative types on the Law Review," says Adam Charnes, who counted himself among them. Obama, who had earned a place on the journal in his first year at Harvard, saw a role for himself that has come to define his pitch for the presidency today—as a bridge builder. He approached the conservatives, according to another member of that contingent who has requested anonymity, and explained that while he supported affirmative action as a policy matter, he recognized that it came at a cost. He didn't consider them racists for opposing it. Charnes praises Obama as "a straight-up guy who always told you exactly what he thought." The conservatives saw Obama as a moderate and threw their support behind him. Obama became the new Law Review president.

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In his Philadelphia speech on race, Obama tried to walk an equally fine line. He didn't disown his controversial pastor, Rev. Jeremiah Wright, or the black church tradition from which he had emerged. Yet Obama also made clear that he understood the reaction of whites angered by Wright's denunciations. That's a hard balancing act when talking about race in the abstract—detractors later criticized Obama for pandering to all sides. But it's nearly impossible with an issue as specific, and potent, as affirmative action.

Should Obama become the Democratic nominee, this could be one of the tougher issues on which to find common ground. Ward Connerly—a prominent opponent of affirmative action—is pushing to get referendums on the subject onto ballots in at least five states this fall. It may be difficult for Obama to avoid taking a definitive stance: Affirmative action, says Connerly, "is probably the most difficult race issue [Obama] will have to face." If the candidate denounces affirmative action, Connerly predicts, "his support among blacks will plummet from around 80 to 50 percent. Then, bear in mind that much of his support in Iowa, Vermont, and Wyoming came from white males, who by a margin of 70 to 30 oppose affirmative action."

The challenge is made all the more difficult by Obama's reputation for fresh thinking: This is a perfect chance for him to break with the liberal orthodoxy on race-based preferences, according to both conservatives and liberals who oppose these programs. To this day, some of the conservatives from the Law Review wonder whether Obama agrees with them on race-based affirmative action—a testament to his skill at projecting empathy, if nothing else. "But in politics you can only be a moderator for so long," says Connerly. Eventually, "you must become a referee."

Obama has certainly sent signals that he is not doctrinaire on the issue. In an interview last May on ABC's This Week With George Stephanopoulos, he was asked whether his own daughters should someday receive preferences in college admissions. His response was unexpected: "I think that my daughters should probably be treated by any admissions officer as folks who are pretty advantaged." He added, "I think that we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed." His comments lit up the blogosphere with speculation that as president he might spearhead a major policy change, shifting the basis of affirmative action from race to class disparities.

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The ABC statement fits into Obama's record on the issue, which has never been black and white. As a 28-year-old at Harvard, Obama attended meetings of the Black Law Students Association and spoke at at least one event, demanding greater diversity on campus. But his classmate David Troutt, now a law professor at Rutgers, says he was no militant. "There are a lot of people that spent a tremendous amount of time on that issue. They sued the school. They camped out at the dean's office," says Troutt. Obama wasn't among them. His head was in a different place.

Students at the University of Chicago, where Obama later lectured on constitutional law, don't recall him taking a hard line there, either. Erika Walsh, who graduated in 2002 and took Obama's Equal Protection and Due Process class, says she came away with no idea about Obama's personal views on affirmative action or any other hot constitutional issue. "The way he conducted the class, he wanted you to talk, and he would be provocative," she says. Andrew Janis, who graduated in 2005, took Obama's class Current Issues in Racism and the Law. Like Walsh, he has no recollection of even discussing affirmative action, which suggests either that the issue wasn't important enough to make its way on to his syllabus or that professor Obama just wasn't all that fussed about it.

As a lawmaker, Obama has never had to confront the issue directly. There haven't been any major votes on affirmative action since Obama joined the U.S. Senate or during his time in the Illinois Senate. When asked about his position, the campaign points to his previous statements on the subject, in which he has defended the practice in broad terms. He has called himself "a firm believer in affirmative action." In a 1998 Illinois National Political Awareness Test, Obama answered "yes" to questions asking whether state government agencies should take race and sex into account in "college and university admissions, public employment and state contracting." And following the Supreme Court decision in 2003 in which the court charted a middle ground on affirmative action in upholding the admissions policy at the University of Michigan law school, Obama was quoted in the Chicago Defender celebrating the ruling and warning that "George Bush is still looking to replace some members of the court, more conservative members who might end up reversing this opinion." Tanya House Clay, senior deputy director for public policy at People for the American Way, works closely with Obama's office on electoral reform and other issues. She says her organization "has no reason to worry" about his commitment to affirmative action because of his clear dedication to providing equal opportunity to all.

But what Obama has done—as in his comments about his daughters—is to try to broaden the question of increasing diversity beyond "race and test scores," as he writes in his most recent book, The Audacity of Hope: "Affirmative action programs, when properly structured, can open up opportunities otherwise closed to qualified minorities without diminishing opportunities for white students." Gerald Kellman, who supervised Obama during his days as an organizer in Chicago, says the two of them never discussed affirmative action specifically but did talk about programs that "level the playing field." "Not so much advantages in being chosen," says Kellman, "but things like after-school programs, tutoring, summer jobs." Obama wanted something done to make up for the things that poverty had denied African-American and Hispanic kids. Kellman also says Obama preferred to work through community organizing and community programs wherever possible, rather than legislation.

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Asked to speculate about how Obama managed to sidestep so many of the most sensitive issues about race until the Wright story exploded this month, Janis, his former student, said, "Obama never sees race as in its own special camp. For him, race and class and gender are all different kinds of social inequality, and they are all interrelated." That has led some opponents to hear what they want to hear in Obama's rhetoric. The Goldwater Institute's Clint Bolick, who is helping Connerly with his anti-affirmative-action propositions, says of Obama and his comments about his own daughters: "The fact is that he does not full-throatedly support race-based policies. What Obama is doing is opening the door to needs-based, rather than race-based, affirmative action."

Try as one may to decode the tea leaves of Obama's handful of statements and writings about affirmative action, the truth is that you can find evidence that Obama is for race-based affirmative action and class-based affirmative action. That's not necessarily because he tells folks what they want to hear. The deeper truth seems to be that he's not that interested in affirmative action at all. People close to Obama consistently say he doesn't talk about it all that much. He wants to get beyond race as a singular, defining category in America. The folks who know Obama predict that he will not, if elected, be on a crusade to repeal or eliminate existing federal affirmative-action programs, but they're also clear that he wouldn't seek to expand them or use race to define them in new or significant ways.

As is so often the case with Obama, his political and constitutional views are almost inextricable from his personal history. Supreme Court Justice Clarence Thomas, in his recent book, My Grandfather's Son, describes having stuck a "fifteen-cent price sticker" on his diploma from Yale Law School and stowed it in his basement, because it bore the "taint of racial preference."Obama chooses to look at his differently. In 2001, he told the Journal of Blacks in Higher Education, "I have no way of knowing whether I was a beneficiary of affirmative action either in my admission to Harvard or my initial election to the Review. If I was, then I certainly am not ashamed of the fact, for I would argue that affirmative action is important precisely because those who benefit typically rise to the challenge when given an opportunity." Thomas never seems to have gotten past affirmative action. Obama seems not to have gotten into it. Obama proved in Philadelphia that he can understand and even transcend the hardest questions about race. Affirmative action may be one of a handful of issues on which partisans tolerate few shades of gray.

A version of this piece appears in this week's Newsweek.

With Eve Conant in Washington and Sarah Kliff in New York.