Our friend and Prospect Board member Randall Kennedy is a distinquished law professor at Harvard. Kennedy once clerked for Thurgood Marshall. He is author of many books, including one titled For Discrimination, a comprehensive defense of racial preference as the necessary remedy for the long legacy of slavery, Jim Crow, segregation, racial redlining, and other elements of state-sponsored racism.

But Kennedy sees the DEI movement as increasingly counterproductive. In a piece written April 2 for The Harvard Crimson, Kennedy quotes an emblematic diversity statement proposed by Harvard’s Derek Bok Center for Teaching and Learning. He writes:

For the purpose of showcasing attentiveness to DEI, the Center suggests answering questions such as: "How does your research engage with and advance the well-being of socially marginalized communities?"; "Do you know how the following operate in the academy: implicit bias, different forms of privilege, (settler-)colonialism, systemic and interpersonal racism, homophobia, heteropatriarchy, and ableism?"; "How do you account for the power dynamics in the classroom, including your own positionality and authority?"; "How do you design course assessments with EDIB [equity, diversity, inclusion, and belonging] in mind?"; and "How have you engaged in or led EDIB campus initiatives or programming?"

Kennedy sees such statements as "a troubling invitation to ritualized dissembling. A cottage industry of diversity statement ‘counseling’ has already emerged to offer candidates prefabricated, boilerplate rhetoric."

Does Kennedy have a fair point, or has he gone neocon on us?

Let’s recall the distinct origins of affirmative action and DEI. Affirmative action was invented during the Johnson administration, as civil rights advocates appreciated that it wasn’t enough to simply prohibit discrimination in employment, as the 1964 Civil Rights Act did. Deep-seated racist pattens of recruitment required deliberate countermeasures. So in 1965, LBJ issued Executive Order 11246 requiring federal contractors to "take affirmative action" to reach minorities in recruitment, advertising, apprenticeship and training, as well as employment. That was literally the first use of the term.

Affirmative action was embraced by corporate America, and quickly spread to higher education. It was right-wing courts, not public opinion, that challenged affirmative action, beginning with the Bakke case of 1978.

In Bakke, the Supreme Court deadlocked over whether an affirmative action program at the University of California was illegal discrimination against white people. In that case, Justice Lewis Powell broke the tie by inventing, out of whole cloth, an entirely new rationale for affirmative recruitment and acceptance of minorities: diversity. It was pedagogically good for white students to experience a diverse classroom.

With the Black Lives Matter movement, a more militant version of diversity took hold. In Ibram X. Kendi’s formulation, white liberals might think they were "allies" of racial justice, but they needed to work harder at it. Meanwhile, the high court, after chipping away at affirmative action in several cases since Bakke, finally killed it last year in Students for Fair Admissions v. Harvard.

So we now have two conceptions of racial remediation going in opposite directions and talking past each other. Affirmative action, explicitly aimed at the descendants of slaves, is in ruins. The more diffuse concept of diversity, requiring ever more exquisite sensitivity, is targeted at well-meaning white liberals. Meanwhile, in Trump country, DEI doesn’t make a dent in patterns of racism and stimulates ridicule and backlash.

Kennedy writes, "Universities are under a legal, moral, and pedagogical duty to take action against wrongful discriminatory conduct. But demands for mandatory DEI statements venture far beyond that obligation into territory that is full of booby-traps inimical to an intellectually healthy university environment."

But the wider consequences may be even more serious. If we are ever to return to the days when courts and broad public opinion were accepting of affirmative action, that will take more robust multiracial governing coalitions, who in turn will elect presidents who appoint progressive judges and pursue progressive economic policies that bridge racial divides.

The right question to be asked of DEI initiatives is not whether they increase sensitivity among the already sensitive but whether they help us get back to a multiracial governing coalition.