Randall Kennedy: The N-Word – History of Race, Law, Politics, and Power | Lex Fridman Podcast #379

Let's imagine you have a black rapper Who invites people on stage and let's Suppose they invite a black person on Stage and they're perfectly happy when The black person Flew out with you know their lyrics They invite a white person on stage The white person is you know that Doesn't really you know sort of Mystified but it comes on stage and full Out with what the rapper says including The infamous N word and then the black Rapper gets mad Imagine the white comedian who satirizes That pokes fun at that And in poking fun at that says the Infamous n-word am I angry no I'm not Angry not angry at all The following is a conversation with Randall Kennedy professor at Harvard Law School and author of many seminal books On Race law history culture and politics Including specifically on affirmative Action criminal justice policing and the Topic explores extensively in this Conversation the single most powerful Word and slur in the English language The n-word or the hard r at the end Randall has written a book with this Word as the title and word the strange Career of a Troublesome word Please be warned that Randall uses this Word throughout this conversation Deliberately and skillfully to discuss

Its power and its role in The History of The United States I don't intend to shy away from Controversial topics like these and I'll Work hard to handle them thoughtfully And thoroughly with respect and with Empathy Often with several guests who have very Different perspectives on the topic in The end I believe in the power of Long-form conversations the heel divides By furthering understanding of human Nature of human history and the full Diversity of The Human Experience this Is Alex Friedman podcast to support it Please check out our sponsors in the Description and now dear friends here's Randall Kennedy You wrote a book whose title is the N-word spelled out with a hard r at the End so let's start with the history of This word what is the history of the N-word the word you're referring to is The book that you're referring to is the strange career of a Troublesome word The word dates back to the 16th 17th Century it's got a long lineage in other Words Basically Latin basically Spanish basically you know black in various Formulations

We don't know actually how the term became A slur So there were words that were close to Nijer that were used in various ways for Instance nigg Uh u h has been was used in IGG you are Used and sometimes it was used in a way That seemed to be Just purely descriptive we do know that By the early 19th century it had become A slur it had become a derogatory word About which people complained but Exactly how that came about not all Together clear So it's been 20 years since you've Written the book what have you uh what Wisdom have you gained about this word Since writing the book and maybe having To interact with people having to read Having to see having to feel the Response to the book this book has Generated a lot of controversy I I Thought it would it's probably generated More controversy that I had anticipated It is certainly generated more Uh Uh more different sorts of experiences That I had anticipated so for instance I did not think that writing this book Would prompt people to ask me to be an Expert witness in cases And over the past 20 years I've been an Expert witness in a number of different

Cases I've been an expert witness in Case in a murder case In various cases of uh of assault I've Been an expert witness in cases Involving Tort cases intentional infliction of Emotional distress I've been an expert Witness in a number of employment cases Um I I had not uh anticipated that nor Had I anticipated the extent to which People would get in trouble For using my book every year uh there Are teachers who are suspended or who Are fired uh because they will exert a Chapter of my book Let's uh let's Imagine a and this is not I'm not Imagining things does this happen that's A teacher is teaching for instance Um The Mark Twain's Huckleberry Finn The word appears in that book Over 200 times the teacher trying to be Earnest trying to be sensible trying to Be serious will exert a part of my book Uh to acquaint students with the history Of the word and maybe the history of Controversy involving The use of the word in this particular Novel the student you know the teacher Will give it out hand it out to the Teachers uh hand it out to students and There have been a number of teachers Who've been suspended or worse because Of that uh t uh uh students will get Upset go home tell their parents their

Parents will storm to the school and say That this is you know this is terrible The teacher is quote using the word uh in an offensive way and uh Oftentimes administrators will uh Basically abandon the the the teacher And this when whenever this comes to my Attention Um I write I'll write the You know superintendent of schools or Write the principal or sometimes I'll You know I'll write a uh an opinion Editorial piece for the local newspaper But every year there are teachers who Are Disciplined uh for using my book I I had Not I had not anticipated that And what is the nature of the letter or The or the op-ed that you write On why they shouldn't be disciplined or If they do they to the degree they Should be or shouldn't be there's There's not been one case There's not been one case Uh that has come to my attention in Which it was even remotely sensible For the teacher to be disciplined And what I say is that number one Frankly I go through it's the what I Write is almost a synopsis of my book Number one this is an important word in American history it is a word that is Explosive that's why people get so upset It's a word that's volatile it's a word

That uh has typically has typically been Used in a terrible way it's a word that Is part of the soundtrack of racial Terrorism in the United States so people Ought to know about this word I mean if You're interested in uh knowing the Real History of the United States if you're Interested in knowing about lynching if You're interested in knowing about the Way in which uh black people have been Terrorized in the United States you need To know this word you need to know that History so you need to know why it is That people are upset about the word but That's not but it doesn't end there You have to know that and if you know That then uh that knowledge should equip You To be careful It should equip you to know that You know to know to know the the range Of contexts in which this word appears But again it doesn't just end there Because especially young people you tell That to young people and they nod they Read they understand that But then but then what but then they Turn on their radios and they turn on You know they listen to Spotify they Listen to their some of their favorite Uh entertainers they listen to Dr Dre They listen to The Ghetto boys they Listen to you know Snoop Uh and they listen to NWA

What do they hear they they they they Listen to stand-up comedians they listen To uh Dave Chappelle they listen to Kat Williams Uh uh they you know what do they hear They hear the word Or Being used in a lot of different ways And so they need to know about that as Well what are people doing what do How does one explain The fact that Dick Gregory Dick Gregory was a comedian Activist Friend of Martin Luther King Jr a true Activist I mean he had a very a Flourishing Careers and Entertainer that he abandons In order to struggle for racial Justice Throughout the United States and Including the Deep South how does one Explain the fact that the he wrote Several Memoirs but his first Memoir is Called A memoir how does one explain that How does one explain the way in which How does one explain Richard Pryor I mean Richard Pryor's best album is That nigga's crazy Well was Richard Pryor trying to put Down black people how does one explain That one can only explain that by Getting deeper into the word by Understanding that yes

This is a word that has been used in a Derogatory way this has been this is a Word that has been used to put people Down this has been this is a word that Has been used to terrorize people you've Got to know that But you also have to know that this is a Word that has also been put to other Uses uh there are artists there are Entertainers Who have used this word like Dick Gregory used it to put up a mirror to American society And say look at this word and look at The terrible way in which it's been used We don't want you to look away no don't Look away We're not no euphemism no asterisk no no Inward no now we want you to look At that And we want to talk about that James Baldwin James bold there was a there was a Documentary About James Baldwin a couple of years Ago highly lauded documentary The title that was given as documentary Was I am not your negro that's not what James Baldwin said anybody can talk go To YouTube right now take a look James Baldwin said I am not your and Then he went on to talk about that Well you know James Baldwin wasn't again He he wasn't sworn to cover up anything

He wanted people to face the facts of American Life And it seems to me that if you're a Teacher And you want to have your students face The facts about American life well You've got to Grapple with the word now let me just quickly say you Know teachers have a tough job And Um if we're talking about students of Course there's a wide range of students Am I saying that one ought to give my Book to kindergarteners no you know Kindergarteners are probably not ready For such a book Uh third graders probably no not third Grade if we're talking however about People in the 10th grade do I think the 10th graders can read my book yeah sure Absolutely 11th graders 12th graders People in college there are people in College There are people in college there are People in law schools teachers in law Schools have been disciplined For uh because the word has come Out of a teacher's mouth why in a couple Of cases recently teacher would be Reading a uh a court opinion The word appears in the court opinion The teacher pronounces the word ah You know students get up Leave in a huff report the teacher

There's some instances in which teachers Have been under those circumstances have Been disciplined in my view that's bad And people ought to say it's bad it's Bad pedagogically Uh and um Uh frankly in many of these instances It's just not only is stupid and I don't Mind saying that I think that some of These instances in which teachers have Been disciplined absolutely stupid People say well the teacher used the Word excuse me use the word it'd be one Thing it'd be one thing if a teacher Looked at a student and called the Student You know get out of here that'd Be one that'd be you know fine Discipline that's teacher that's that's Bad But that's not what's going on You don't have this these none of these Are cases in which you have an Individual who is a stranger to another Individual and this word just sort of Comes out no what we have here is a Class Involving a person who is a teacher Interacting with students Talking about subjects in which it would Be perfectly understandable why this Word would emerge as a subject of Conversation Now under those circumstances it's

Somehow wrong for a teacher to you to to Utter this word in my view the answer is No and You know Um I said that 20 years ago I say I say It even more emphatically now Still it is one of the most powerful Words in the English language And uh there's a kind of Responsibility that we as humans should Have with words yes with statements That word If not used skillfully if not used Competently even when just read from a Legal transcript can do more more harm Than good Uh I agree with what you say yes words Are powerful words do matter And so I am certainly not Suggesting that people be lacks I'm not Suggesting that people Um be irresponsible It's precisely because words matter However That we need to be willing To face words and grapple with words and Talk about words and talk about the History of words precisely because words Matter And Um among other things it seems to me It's important to understand that words Can mean different things in different Contexts it's not the case that

A word Means the same thing in every context The word discriminating Sometimes it's a very bad thing that Person discriminates And when if you know again you know Intonation of voice means something if I Say that person discriminates And I'm obviously being disapproving Implicitly what I'm saying is that Person Distinguishes between things on an Unjustifiable basis and that's a bad Thing on the other hand that person has Discriminating taste Oh that means something very different That means that the person Differentiates in a way that shows that They understand the difference between Excellent good and not so good and we Think that that's a good thing so words Can have different you know words can Mean different things in different Contexts it seems to me that that's Something that actually we ought to Recognized we ought to recognize and Talk about well some words enter this Territory of being a slur And it seems like when they cross the Line into being a slur The there's the number of contexts in Which it's okay to mention it Exponentially decreases Right uh no no I'm gonna no I'm gonna

Resist that a little bit because the Whole idea of You know slurs Slurs change Yankee was a slur Yankee was a slur in uh you know 18th Century United States Uh slur today You know New York Yankees I'm a Yankee Fan I'm a Yankee Um Queer Queer uh you know you know and this is In in in in my lifetime there was a time You know that You queer And people would really run away from it And that was you know a bad thing and Then thank goodness Uh Gay Liberation movement Gay Liberation movement basically we're not Going to run away from this We're gonna grab this quote slur And we're going to affix it to ourselves And we are going to repurpose it Now the word queer is again you know can It be a slur yeah it can be a slur Doesn't have to be And it seems to me that it's important For people to know about How a word a symbol in some context can Be a slur in some context doesn't have To be So the whole idea of

What's a slur That could that's a that's a complicated Idea in and of itself it's very Complicated it's uh if I may say almost Fascinating how language evolves but if We were to Kind of have a minute by minute Evaluation of the most powerful Intensely slur-like words in the world I Think the n-word with a hard r at the End which is the title of your book is Number one on that list Well I probably so and of course that's One of the reasons why I wrote a little Book about it yeah but it hasn't even Since you wrote a little book about it It seems like it's maintained its number One status you mentioned queer Uh it's uh maybe queer was in the top 20 I don't know for a while and now it's Sliding into the uh top uh thousand and And the n-word is at the top you're Absolutely right the origins of this uh Book I I clearly remember I was I was at my Office And I was thinking about lecture topics And I get invited to give lectures from Time to time And I was thinking well you know what What might make for an interesting Lecture and all of a sudden The word popped into my mind Now this is a word I've I've grown up

With this word I mean there's there's Never been a time in my life When Um at least in my conscious life That in which I've In which this word's been absent I mean In in my household for instance in my Household My parents are black people Uh my parents were refugees from the Jim Crow South I was born in the Deep South South Carolina In my household I heard the word used in every Possible way I heard it used as a slur I also heard it used with respect to People who were praised You know my father I clearly remember My father whom I Revere Um uh that's the smartest in the World that's the bravest in the World that's the baddest I know It was he he wasn't putting people down This is the way he talked and I grew up Hearing this word in various ways And so I was thinking to myself God Where did this word come from And one of the first things I did I Clearly remember just jumping up and I'm A seat running up to the library Oxford English Dictionary when did this word First appear in English was the history Of the word

And then what really sort of grabbed my Attention Is um I went I I I get my computer going And I asked the computer system Um give me every case Every federal court case in which this Word appears thousands of cases And then I said oh my goodness this is Really and you know this is really Interesting and then I started just Cataloging all the different cases There came a point I'd say probably About a month into this I compared the usage I compared the Number of times came up with other sorts of slurs So for instance K-i-k-e long time you know you know Derogatory word for Jews how many times Does this word come up There was a time In which the word appeared but Nothing like the infamous inward nothing And then I you know what about wet back What about and then I just you know let Me let me just take a look at all the Other slurs Nothing came close not even remotely Close To and I think it has something To do with Um I think it has something to do with The uniqueness

Of the color line particularly as it Pertains to African Americans I think that the the fact that Uh sort of occupies such a unique status Among slurs I think that's a reflection Of the unique stigma That has been imposed on African Americans it's hard to know uh the Chicken or the egg Why one word is able to sow Distinctly and clearly encapsulate this Struggle between races that is Throughout American history I mean they Didn't have to probably be so but it Came to be that way it became that not Only that not only that but of course Then spurred other slurs so Arabs Sand Um the Irish the of Europe Um women the of the world John Lennon even has a song that's right Well I think Yoko Ono I think had Something to do with that song So I mean it is a slur that has Spawned other slurs and again this is That's why you know as you indicated a Moment ago this is a quite Unique Term But are you Conscious Are you deliberate in you saying this Word so let me just say from a personal

Experience Maybe my upbringing where I came from In my daily life I don't think I've ever heard that word With a hard R said is often used clearly In my life that I've heard it today more Than I have ever heard of my entire life And uh I think there's a A few people who listen to this that Will be listening to this and be very Uncomfortable I would say not in a bad Way Probably in a good way I'm uncomfortable now and I am almost Introspecting and trying to figure out Why am I uncomfortable and I think even the title of your book is Making me think that just just looking Into my own mind and trying to Understand wow Words of Power and why Does it have so much power but are you Deliberate in that action and by the way Not only are the people listening to This sweating this will be on YouTube in Part And YouTube the people on the other side Will be sweating what do we do with this Yeah Well am I deliberate yeah the answer is Yes And let me unpack that a little bit First That's right I mean uh am I deliberate Yeah I deliberately I deliberately wrote

A book called the strange career Of a Troublesome word And you know was that deliberate yeah That was quite deliberate but the title Could have been n-word versus the title Could have been the title could have Been in word sure the title could have Been the title could have been A book about a word that causes pain to Many people I could have named it that Uh there are many there are many titles I could have used Um did I want a title that would be Provocative did I want a title that Would grab people the answer to that is Yes What do you know I'm a writer I want People to read what I write Was I being sensationalistic Well I mean if if you want to put it Like that yes I don't I don't I'm not embarrassed to Say that I mean uh I'm sure that when People write books they think really Hard about their titles and they try to Get a title that will you know grab People's attention I know people Respect people very deeply Who never As a matter of principle never Utter this word And I've talked with people I've had People say

Um you know I read your book let's talk About it but let's be very clear I'm not Going to use the word I've had many Conversations with people who've asked Me not to use the word I was on a I was on a the first time This came up Was a book tour it was 20 years ago when The first book first came out And I was on one of these uh uh call-in Shows early in the morning Time came to call in seven o'clock I Call in at five or seven right before I Go on the host of the show says oh by The way We have a strict policy here at the Station we never use this word And I said well gosh I wish you had told Me this earlier does this mean then that You're never going to pronounce fully The title of my book and she said that's Right and I had to make a choice right Then and there am I going to go on or am I not what'd you do I went on and I Abided by the station's rules And you know fine we had a perfectly Fine conversation Um and you know I there is a place for Euphemism the American language is a Very Supple language there are lots of Words that one can use I do not get Angry with people who Um don't you know they say as a matter Of principle they're not going to use

The word fine I I'm willing to I Understand where they're coming from And uh often I will defer to their Wishes Um all I say is I want people to Understand where I'm coming from I'm not just using this word willy-nilly There's a pedagogical reason there is a Reason for why I'm saying what I'm Saying there is a reason why I use the word Can you make the case why using the word Is a good idea and can you make can you Still man the case why it's a bad idea Maybe you've heard from some critics yes Who said that you saying this word out Loud is actually causing a lot of harm Not like uh harm because people's Feelings are hurt but increasing the Amount of racism and hate in the world Yeah critics let's start with the Critics Um one again going back to the when the Book was first published I remember going to uh the first Bookstore I went to And I talked about the book had a very You know talked asked questions And the last comment Wasn't a question but the last comment Was made by a Uh An elderly black man I called on him

And he said I've listened to what you've Had to say and I appreciate what you've Had to say But he he said but I remain unconvinced And I remain unconvinced because When I was coming up This word Was used to put me in the back of the Bus And this word was used to prevent me From voting And this was the word that was used to Justify me never being called as a juror So to me this word has only one meaning It's a terrible meaning I'm never going to use the word It hurts me when I hear people use the Word Especially those who don't know anything About the you know really about the History of it And he went on to say I think that your Book though well intended Is probably going to be seen by some People as giving them permission to use The word And then he stopped And I thought there was a lot of power Behind that gentleman's comment I think that what he said is probably Correct in so far is there probably some People who read the you know read the Book they're probably some people who Are listening to our conversation right

Now Who will Um Think that I'm giving people permission To use the word Um You know I have said that I'm I'm not I want people to understand the word I Think that there is a burden that comes From whenever whenever you utter a word Like this Uh but that's you know that's a critique And I think there's I think there's Strength to that critique I'm not going To say that that's a ridiculous critique I think that there is something to that And by the way I should say and that's Why I would say to anyone Um That's right if this word comes out of Your mouth you are taking on real Responsibility so for years it doesn't Happen so much now but they were I'd say For about the first Five years after this book was published I would get an email At least once a week and it would begin Like this You know Dear Professor Kennedy Uh I read your book and I'm calling to Ask you a question And as soon as I saw that I knew what The question was going to be and it

Would what the person would say is the Following I like rap and then I knew I knew it was Coming I like rap I'm white And I have black friends and we listen To rap and we're you know we're driving In the car and we're you know we're We're listening to the song we start you Know we start humming along and singing Singing along and my black friends sing Along and when or comes up They sing And I don't know what to do Is it wrong for me to sing along This happened so often That I'd say about after about the tenth time I got in such an email I wrote a form Letter Because I didn't want to just you know Take up time Writing you know you know sort of Crafting letter after letter so I wrote A form letter and basically what I said Was listen number one You know I'm flattered that you're Asking me but number one you you should Have a conversation with your friend Number two no matter what your friend Says let me put something else For you to consider let's suppose for The sake of discussion that your friend Says oh doesn't bother me I know where You're coming from we're just enjoying

The music I don't think that this is a you know a Racist utterance you know coming out of Your mouth let's suppose that your Friend says that That doesn't end matters because Let's imagine the following let's Imagine that you're in a a theater And you're waiting for the You know film to start And you just you know talking with your Friends or singing with your friends or Just you know kicking back with your Friends And they're talking about this or this And you say it you the white boys say it And the next thing you feel is a fist a Big fist in your mouth That has been launched by a person that You did not see who was right behind you All this person saw was a white person Saying and the next thing pal That's not You know some sort of overheated Scenario coming from some law Professor's mind that is a very Plausible scenario so you have to be Worried about lots of things including Mistake So my advice to you my is be prudent I would stay clear of the word unless Unless you're very certain and unless if You're called on it

You feel you're in a position to defend Yourself defend what you're doing But The Prudent thing would be to stay Clear there's so many questions I want To ask there one is about the violence The legal aspect of that it's very Interesting uh you raise that in the Book but you know I do want to bring up Something I probably disagree with you On which is uh you say that there's not A significant difference between the Different variations of the n-word The one the or maybe maybe you don't I Just listened to a bunch of your Interviews so uh there's the the version With the Uh ER at the end version with a ga at The end and then g r o at the end These are all different versions and I Feel like in that list of powerful words You know I feel like there's a Distinction yes I feel that the number One uh spot is the one with the hard R And I don't know maybe you can Um Try to shed light but I feel like the One that ends in GA is really far down The list In terms of modern culture so this is we Talked about the evolution of the words And uh the word queer for example it Feels like because maybe because of rap Because of comedians because it's become

Much more it lost so much of its power Well oh you don't think so no I think There's a difference between and I mean people make a distinction Between them And I think that to the extent that lots Of people make a distinction between Them I think you know just as a Sociological fact they are different Um I think that people who get upset If somebody especially white people so You know if a white person says And they're you know and and they and Their You know sort of criticized about it and They say well I didn't say I said I believe me I think most people You know most people who are mad at them Are gonna stay mad at them Um now you you raise the word you know So and I would put In a very different category than negro Educate me here well yeah sure I'm happy To Um negro Is a Um also controversial It's also controversial Um But Negro Has never been viewed by a substantial Number of people

As a derogatory term at least in the in With the same amount of animus the same Amount of Um It's it's it's a very different kind of Word than or I mean after All I mean you know negro negro Martin Luther King Jr You know you know uh all of his great Oratory negro you read the work of Um the great W.E.B Du Bois negro Uh you read the work of My boss so for instance I use the word Negro I use African-American black Afro-American Uh but I also use the word negro now There are some people who get really mad At me because of you know when I use the Word negro And this so for instance they're Students who've gotten really quite Exercised And they'll say you know I'll be giving A lecture and you know a handle go up I'll call on somebody and they'll say Listen are you using the word negro In its purely because of the historical Time period that you're using so you you Know is that why you're using it or are You using it in your own voice And often I'll say well I'm using it in My own voice and they'll say well I'm Offended

We think that this is you know that's Old-timey it's derogatory When this first came up I I said let's pause for a moment And I'll take that under advisement And let me let me look into this and I Ended up writing an essay about it an Essay about the history Of the terms that black people have used To describe themselves It's a long list you know black colored Afro-American African-American negro Etc So I go through all that and I said now Let me just tell you I I know for Certain when I started using the word Negro Uh often in in writing I can date it Uh 1983 the summer of 1983 is when I Started using the word negro In my professional life As a lawyer And I did it for a very specific reason I did it because my boss demanded that I Negro capital in Now who was my boss My boss in the summer of 1983 Was associate Justice of the United States Supreme Court Thurgood Marshall Known as Mr civil rights Now it seems to me You're telling me that this word is so Out of bounds that this word is Derogatory nobody should ever use this Word does the fact that Thurgood

Marshall demanded that I use this word Does that complicate things a little bit And so I think that people again you Know ought to know more I mean I've encountered students who Don't know very much But who want to lecture me yeah on on Word usage Uh because they know you know three Sentences About current fashion And hold it you know hold it By the way I I push it further I Sometimes use the word colored and then Some people really don't like that Color well you know there's there's a There's an organization still very much Uh alive in American life and law The National Association for the Advancement of colored people the NAACP They haven't changed their name And as far as I'm concerned it's a Wonderful organization Um there are people who have used the Word colored that's what my grandmother Used colored Perfectly fine as far as I'm concerned So again Uh we there are lots of different words That one can use you can use different Formulations understand that people have Different preferences Fine I have my preferences at least know

Where I'm coming from Still words have power and they have Power to hurt and there's Um There's a lot of reasons That I could see to justify the use of The word in its full form as you're Saying when in this conversation is You're using it one of them is perhaps Uh fighting for the freedom to be able To use those kinds of words uh so let me Ask you about the freedom of speech Um And the censorship of the word uh should The use of the N word be censored for Example on social networks So we can come up with different places We can say University campuses uh maybe In um op-eds or I don't know but I think Social networks currently is a very Interesting place there's a lot of Conversations that are happening on them There's the ability the technical Capability to sentence To remove the ability of people to use The word uh do you think they should be Allowed to use the word on Twitter for Example Um my response is it all depends on the Way in which the word is being used if The word is being used to intimidate if The word is being used to Um Um

Uh terrorize Then no along with lots of other words By the way I mean you can have you could I could use the word I suppose gentleman I mean I'm sure that I could conjure up A way in which that word could be used And of you know intimidating way so I'm Should would I be happy If there was a technology That always blanked this word N-i-g-g-e-r Imma Be I would be against That For one thing it would erase uh the name Of one of my books And uh I'm I think that you know and I'm I think the book actually has a lot of Useful information makes some useful Points Um if and by the way if let's imagine Let's imagine a world in which there was A technology That Blanked every time n i g g e r appeared You would have what would that do To novels by James Baldwin by Tony Morrison by what would that do to the Speeches of Malcolm X Martin Luther King Jr what would that do to the comedy Albums of Richard Pryor Kat Williams Dave Chappelle Um you know what would that if if one Sort of plays that out Would one want to have all of those

Blanks In Important Literary And political Uh performances No I don't want such blanks What I want I would want for people I Would want the word to be there and for People to understand how to deal with This word and by the way you've used the Word hurt an awful lot so let's talk About her Um I think we need to be more careful With the way in which we deal with hurt Because Um people can be justifiably hurt You can have justifiably hurt feelings And if somebody has justifiably hurt Feelings I then think that we should Turn to the person who has hurt those Feelings and say you have acted wrongly Because this person's feelings are Justifiably hurt in relationship to what You've done On the other hand There are people who have hurt feelings And frankly It's unjustified so just just imagine The following let's let's imagine that I Give a talk About the greatness of Martin Luther King Jr And then let's imagine that a Ku Klux

Klansman comes up to me after my talk And says oh you have now hurt my Feelings What am I supposed to be am I supposed To apologize am I supposed to be Regretful that my talk about the Greatness of Martin Luther King Jr has Hurt the feelings of the klansmen no my Response is going to be you know you Need to reevaluate your feelings Because actually uh your feeling of hurt Is unjustified and no I'm you know no There's no apology coming from me but There there's a kind of line and perhaps The gray area and maybe the word hurt Has been overused because if you try to Avoid hurting Uh a small fraction of society that is Mentally weak in a way where everything Hurts them that's that's the wrong way To build a society but if we flip that Upside down and say trying to maximize The amount of love in the world Uh and think about decisions we make in Terms of the language you use to try to Maximize the amount of love and not just Short term but long term okay and that's Where freedom of speech is very powerful Because it's a short-term painful thing Often but long-term beneficial thing Just having freedom and so there's where The question of the n-word starts to Come in How much

Uh How do we think about its use on the Internet on college campuses in a way That maximizes the amount of love and Compassion and camaraderie in the world I think that's good and I'm you know I Would associate myself with Uh your vision how can we maximize how Can we maximize love no I love that I I Think that's great so let's let's take That on Um I doubt that the way of doing that Is to Um Uh erase The infamous inward I doubt that the way of doing that Is to Say to people We understand that your feelings are Really hurt and we're going to do all That we can To avoid this symbolic action you know Maybe this word or maybe this symbol we We're going to really we're going to do All that we can to suppress it So that we can have a more loving Universe I doubt that that's the way to Do it I think a better way to do it I Think a better way to do it Would be to fully educate people Including educate people such that You see that over there That is the uniform of the Klu Klux Klan

I want you to be educated about the Uniform of the Klu Klux Klan so that you Can look at the uniform of the Ku Klux Klan and know what it's about you're not Terrorized by it You're not immediately you're not you Know you don't see it and sync to your Needs and start wailing and crying You don't see it and say I'm traumatized No you don't do any of that you see it You understand it if somebody asks you About it you're fully prepared to talk About it Seems to me that that attitude that Poise that strength that knowledge Would be a better way of equipping us To have a more loving world and by the Way just so you know I would say that About the swastika I would say it about The infamous inward I would say it about All of the things that we're talking About it would be better for people to Be educated So that they are not traumatized So do you You know uh The n-word should not be Removed from Um Huck Finn Adventures of Huck Finn or From the works of James Baldwin attorney Morrison not at all in fact it seems to Me that the the boulderization Of uh of of these great artists literary You know work is as far as I'm concerned

Highly objectionable highly Objectionable When is it okay for a white man to say The n-word with a hard r Well you know Um here we need to focus on the word say Is it ever okay for anyone you know Black white pink yellow I don't care red Orange is it okay for anyone to use this Word in a way Uh to put down people to terrorize People to intimidate people answer no You know and I'd say that black person I've seen I mean by the way I've seen Black people use this word to try to Intimidate put down other black people Bad so I'm against it with a black Person white person doesn't matter On the other hand on the other hand Um Imagine Um Imagine a White person Who is Giving a lecture On the history of American racism A lecture on the history of American Racism And in giving that lecture Quotes The you know Uh White racist politicians

Who until fairly recently in American Life use the infamous inward So imagine a white history Professor Giving a lecture about the history of American racism and says in 1948 This is what so and so running for the Presidency of the United States said and Then Quotes A paragraph or two In which the infamous inward Is featured is that bad no that's not Bad no that's not bad Sounds like a perfectly good lecture and I'm glad that you put the infamous Inward in there so that we can see that As recently as 1948 people who were Running for the presidency in the United States openly use the word that does not Bother me I'll say this too now you know somebody Says well you know nice job Kennedy but You've you've you've you know you've Limited it to over here you've put it in An academic setting What about other settings it does not Bother me let's imagine somebody who's a Comedian a white comedian Who is Um Satirizing Uh word usage Let's imagine a white comedian Who uh is satirizing our current

Practice And wants to poke fun At the way in which Um you know let's imagine you have a Black rapper Who invites people on stage and let's Suppose they invite a black person on Stage and they're perfectly happy when The black person Full out with you know their lyrics They invite a white person on stage The white person is you know that Doesn't really you know sort of Mystified but it comes on stage and full Out with what the rapper says including The infamous N word and then the black Rapper gets mad Imagine the white comedian who satirizes That pokes fun at that And in poking fun at that says the Infamous N word am I angry no I'm not Angry not angry at all what if in the Process of satirizing that comedian is Not very funny you say that it's a bad Joke you were not funny okay I don't object I don't object to the use Of the infamous inward I just like you Know you're not very funny But because there's a there's a line When the joke is not funny it just seems Like the the comedy is used as a cover To actually say something hateful it's Interesting thing about comedy I feel like the funnier you are

The more you can get away with probably And that's something to do with the the Thing we said earlier which is when you Use words that have power you should do So with skill and competence and uh the Responsibility those words carry again The cases that I'm most familiar with Are the cases involving uh teachers Professors you know academic and it is Said sometimes oh you know why do I Object I object sometimes people say Because Uh up you know I suspect that this Teacher just wanted to say the word and That all of this is a cover a pretext Do I you know in my sense my sense of it Is no I don't think it's a pre-text if You know if it's pretextual that's bad But in my experience I have not seen That I don't believe that that's what's Going on I agree with you on that but Sometimes I do see people that kind of Have this uh fly Flying towards the light desire to say Something Um Controversial and edgy and they don't Realize that there's a responsibility There there's a skill they should you Shouldn't just say I mean actually when Comedians first start out they'll Sometimes go into that church or they'll Say edgy stuff that's totally not funny And then you realize this is not

Like the edgier the thing the more Skills required to really serve like uh If you're if you're cooking as a chef a Poisonous fish there's a responsibility On how to cook the damn thing so you Don't poison the people eating it I Would agree Um but to get back to your question Let's imagine that somebody produces a New set Of Lenny Bruce albums yeah so Lenny Bruce White Lenny Bruce used the term in his Sets sure did question would I want Lenny Bruce's albums now To be purged Of the infamous inward my response Absolutely not as another follow-on sort Of question What you think I've seen um interviews You've done about this particular book The title of those interviews on YouTube And elsewhere would use the full word What do you think about that should I Use this word in the title In my view the answer would be yes Again are there are people I've been on Interviews I've you know been on stage With people who Um had a different conclusion reached And uh you know I was I respect a Different way again uh There there is a place for for euphemism Again it all you know it all depends I'm

Not I'm not offended let's imagine let's Imagine that you posted this And you had asterisks instead of Spelling it out would I be offended no I Wouldn't be offended uh I would prefer The full spelling but I would understand Where you're coming from would it offend Me now I wouldn't offend me well here's The weird calculation is which version Of the word in the title as silly as That is Uh uh brings more love to the world hmm It's hard and basically your answer is I Don't know Your answer is kind of you have to do it And find out I'm not sure again you know there's Certain questions in which there's Certain questions you're not gonna We're not really going to no there's no Sociologist who's going to be able to Tell us that so what do we do then then We go to Secondary Positions And my secondary position is I don't know one thing that I hold on to However very strongly Is uh the virtue of openness the virtue Of transparency the virtue of freedom And I feel as though If I'm holding on to those things If I'm trying to engage in a serious Conversation

In which I'm trying to make other people Understand me and I'm listening Carefully to other people I feel at ease I feel at ease I feel Uh this is going to eventuate in Something positive And You know I feel okay You are at Harvard you're one of the Most respected people in the history of Harvard Um that said you did write a book with The n-word in it and you also have a lot Of opinions that challenge uh the Mainstream perspectives on race from all Sides well hopefully we'll get to talk About some of them Um but what's your view on Harvard and Universities in general and speech yeah Did you feel pressure from any direction On Um on first of all the title of this Book the content of the book and in General your views on Race yeah I am very laudatory of Harvard University Um I've been at Harvard since uh 1984. I Think it is a wonderful place to work I Um there has not there I have Uh you know in in the various positions I've taken with is in particularly with

Respect to this book or all my other Books what is Harvard University done Harvard University has done nothing but Provide support sustenance encouragement Um you know I think that uh people get Down on Harvard University I would say To anybody imagine the following imagine That the ethos of Harvard University Became the governing ethos of the United States overnight Tomorrow we would wake up in a much Better United States of America I um you know I I have Um I've been supported by Harvard University I think well of Harvard University that's not to say that I Don't have criticisms of it But um By and large Harvard University more Than by and large overwhelmingly it has Provided me and I think it Overwhelmingly provides my colleagues With a work setting in which they can do Their work uh without fear And you know that's a good thing are There certain are there certain you know Aspects of Harvard University about Which I'm critical yeah sure uh by the Way I think a few people rightfully Wrongfully would um Disagree with you that if the ethos or Harvard University took over the country It'd be a better place but there's a lot Of interesting ways to break that down

Because Harvard is not one of these Though there's a lot of things going on That are very interesting yes uh but one Of the things that's happening is uh the Disproportionate and kind of aggressive Growth of the administration versus uh Faculty and students I I think the power Universities should always be with the Faculty and the students that's where The beauty is that's where the Flourishing happens and the more you Have kind of rules and bureaucracy and All this kind of stuff the less powerful The university is I think that uh at my University and at many universities That's right there's too much Bureaucracy too much regulation Uh and you know are there are there Dangers To freedom of expression At my University and at other Universities answer yeah there are There are so Uh and this has really hit home for me There was a there was a period of time In which I was I was getting off of you Know I I had gotten I'd gotten off of All boards I was just doing my work Forget it I'm just going to do my work I'm not going to be on you know Associated with any organizations in the Last five years that has changed quite Dramatically I have I have gotten on Various I've associ I've reassociated

Myself with various organizations mainly Organizations involving academic freedom Because Of what's going on uh at you know on University campuses again I have been at Least thus far thus far Uh this hasn't pinched me where I live But Um you mean in the space of ideas in the Space of ideas and the space of speech In the face of you know teaching you Know I I haven't I haven't been pinched But I am concerned about things so for Instance Let's imagine that you're applying for a Job you know you want to be an assistant Professor Or let's suppose that you're seeking a Promotion Uh in on many University campuses you Are asked to give a Dei statement In which you say Um I plan to you know you know one one Of the reasons why you should hire me or One of the reasons why you should Promote me is because I'm going to you Know Advance the you know the Dei Uh Ambitions diversity equity and Inclusion for people don't know this is The general the set of programs uh that Most universities now have yes That's right so you know you've got to Sort of You know basically

What you're being asked to do Whether they say it explicitly or not They don't say this explicitly but this Is what they're being this is what is up What you're being asked to do is to say I'm down with The diversity equity and inclusion Ethos program policy campaign And here's what I've done that shows That I'm down with this program And therefore I'm okay Well you know a lot of what I do would Fit very comfortably within that but Let's suppose that I didn't just suppose I didn't like this And by the way there's certain aspects Of the Dei you know industry that I Don't like You mean to tell me that uh you know I'm Being judged at an academic institution Let's suppose I want to be a chemist Let's suppose I want to be a physicist Let's suppose I want to be I don't care Uh you know a you know a Critic of Literature Uh I oppose this program I don't you Know I'm I I don't think this is the way In which higher education should be Going Should I have to on pain of Relinquishing my ability to be hired Uh should I have to sign on to this uh Just suppose and let's change it around Let's not make it a Dei campaign let's

Make it a make America great again Campaign What would we think then Let's suppose it was something that said Instead of it saying Dei let's make it Let's make it say Um the advancement of American Capitalism as we know it We want you to be down with that what Have you done that shows us that you Believe in the advancement of capitalism In America Would I be happy about no I would say This is no Well no with respect to these as far as I'm concerned With the you know the Dei statements oh Here's another one Um I just learned and in fact I mean There's certain things that are Happening And I must say I mean I'm in Academia But I it's it's news to me I didn't know No until relatively recently about Positionality statements So these are statements in which Somebody writes an article Let's suppose you know I write an Article And Um It's not enough for me just to submit my Article to some law review or some you Know some other sort of Journal

No in addition to me submitting My Article I've got to give a a personality Statement in which I say whether I am You know gay or straight or whatever What have you in which I say my race in Which I say my nationality in which I Say my you know my stance toward this Ideological position or that ideological Position Interesting what Is this uh uh becoming a Kind of a standard I don't know how Widespread it is I know there was a Night a very good article in the New York Times Uh a couple of days ago about these Position alley statements and in fact That's what sort of tipped me off Somebody had told me there's a law Review at my home institution and I had A friend Who sort of mentioned this offhandedly And who said well I submitted an article To this journal And I was a little bit taken aback in so Far as They did have me fill out a Questionnaire In which in which I was required To State my race State this state that State the other And

You know Um As far as I'm concerned well What does that have to do With A proper assessment Of somebody's work This concerns me Um I'm concerned about the fact you you Know a little while ago you mentioned A little while ago you mentioned the Word negro Uh at I was talking with colleagues a Couple months ago and somebody mentioned That Uh this word had come up in their class Because what had happened was One student was Reading from a Supreme Court decision And the word negro was part of what they Read out and another student held up his Hand And said to the student who was reading A you should be careful Because you know I find the word negro Offensive And you need to be careful about even Saying a word That would be offensive to someone and This person and then you know the Teacher was you know well you know you Know what should I say in those Circumstances you know what should I Have said

And I volunteered you know and you know And you know and I said well gosh that's Really interesting because see if that Had come up in my class Um I would have said well frankly I Don't you know I don't see what the the I don't even see what the big deal is Because I use the word negro And Um You know uh Harvard University is not on You know on some Island that is You know apart from everything else That's happening in the world if these Things are happening in other places if They're happening at Stanford if they're Happening at Yale if they're happening At Columbia Uh you know they're gonna happen at Harvard Um but thus far and I'm I'm I am most Especially Experienced in life at Harvard Law School Harvard Law School Is An Open Environment in which ideas are uh tested And they are tested uh fully And uh it's it's it's because of that That I say I have been fully supported At Harvard Law School feel that it is an Excellent place in which to do work I'm I'm a fan I am a fan and I'm not Embarrassed to say it I am a fan Uh of uh of of my workplace Harvard Law

School I'm very happy to be associated With Harvard Law School zooming out uh In general in education Um there's something called critical Race Theory Um can you comment on what are your Thoughts about uh This kind of perspective on race and Race in America uh to the degree that It's becoming a part of the education Program okay so the first thing I want To say what is it well the first thing I Want to say about critical race theory Is that critical race theory has Become a term so I'm going to put Quotation marks around the term critical Race Theory We can we I'm in a minute I'll talk About critical race Theory without Quotation marks but to begin with I want To talk about critical race Theory Because the reason why people are Talking about critical race Theory so Much now is because politicians Mainly Republican Right-wing politicians Have Created a boogeyman Critical race Theory with quotation Marks around it they have created a Boogeyman And they have tried to make it seem as Though this Boogeyman Believes all sorts of ideas that

Americans should loathe And that Americans should fear And they've created this Boogeyman and They've created it and they've done a Very good job of creating the Boogeyman And they have mobilized uh sufficient uh Um you know public support such that you Know there are a number of states that Have passed laws Are prohibiting the teaching of So-called critical race Theory now the First thing I want to say about this is That Um this campaign this these laws these Various policies telling teachers don't Teach this and don't teach that and you Can't you can't use this book you can't Use that book This is a frightening encroachment On freedom Freedom of speech freedom to learn Freedom to listen freedom to read That's terrible and it's one of the most Frightening things that has happened in American Life in recent memory so that's The first thing I want to say about So-called critical race Theory now now I'll say something I'm going to take the Quotation marks off of the term critical Race Theory Critical race theory is as a sort of a You could have a nice conversation about Actually what it is Um one way of viewing it is to say that

Well critical race theory is a community Of ideas That comes from a community of people The community of people would be people In legal Academia In the Um You know the period 198 starting and Probably the middle of the 1980s It would be associated with people like Derek Bell it would be associated with People like Kimberly Crenshaw people Like Charles Lawrence people like Richard Delgado people like Mary matsuda And these are folks who Held Uh embraced a couple of you know they They articulated a couple of Propositions one of their propositions Was that Um Liberal Race policy Was insufficient They would say that Um the racial policies of A person like my old boss Thurgood Marshall they'll live you know the Liberal Liberal racial policies were Insufficient To Grapple fully with the pervasiveness And the depth and intensity of American Racism their their basic claim and I Think by the way it was a good claim

Their basic claim was that American Racism is more Central More deeply embedded in American Life Than uh most people perceived including Liberals and I think there was a lot of Strength to that proposition Um But then they also took on some other Propositions with which I was in very Strong disagreement So I think it's perfectly fine to say That racism is a force in American Life That is deeper more pervasive more Stubborn more resilient than I think People often you know often understand Often perceive But then some of the folks you know in Critical race Theory Um push further Uh one of the propositions that some of The people in critical race Theory took Was the proposition that um Uh America was doomed To always be a country That would be governed According to the dictates of white Supremacy Uh Derek Bell who was a colleague of Mine and a friend of mine took that Position he talked about the permanence Of racism in American life and he took The position that the various changes That had been wrought in American Life Were really you know mainly cosmetic

Uh they didn't amount to a whole lot I Mean Derrick Bell took the position you Know the second reconstruction the Civil Rights Movement Well yeah it made changes but at the end Of the day black people were still you Know after the second reconstruction Were still in a position of Almost you know you know I don't know Some of them would even say Neo slavery Well I think that's ridiculous Uh the second reconstruction changed a Lot And as for neo-slavery neo-slavery we Talking about uh uh a black American was President of the United States between The years 2008 and 2016. I mean what what are we talking about Here Uh there's been a tremendous change And I think people ought to understand That now Am I saying that everything is peachy Keen and all right no Uh the United States is still Uh to a very large extent still a Pigmentocracy but that doesn't mean that A lot hasn't changed a lot has So I disagree with certain tenets of Critical race Theory and have been very Outspoken in my disagreement if there's Another one up by the way I need to Mention because we've talked so much in Our discussion about freedom of speech

Freedom to teach freedom of listening Another big problem that I've had with Some of the people who Talk of themselves as critical race Theory people Has to do with their attitude towards Freedom freedom of speech Some critical race Theory people Think that The American legal system is wrong In the latitude That it gives to what they call hate Speech or the latitude that it gives to What they would view as racist beliefs Uh some of some of the people who Associate themselves with critical race Theory think that racist beliefs Or to be expunged With the aid of state power if need be Well I'm against that And Um you know I think we were at a moment A an ironic moment In which Actually it's the right wing that has Embraced some of the ideas that were Championed by some of this some of the People who call themselves critical race Theorists you know they say oh we ought To expunge Hate speech Well the right wing is saying this Critical race Theory that's hate speech So let's expunge it

And Um so I you know again I've been very Outspoken in my criticism Of uh some of the illiberal Dimensions Of critical race Theory so I've you know I've been a Critic of Certain features of critical race Theory I have uh applauded certain features of Critical race Theory Um you know critical race Theory you Know there's some aspects of it that I Think have been useful there's some Aspects of it that I think have been you Know profoundly wrong-headed Um So that's where I am and I certainly and You know above all I certainly am against Any efforts To Remove it From you know the intellectual Universe It is a part of our intellectual Universe people ought to know about it And people ought to debate it and people Ought to be free to make up their minds To conclude what they will about the Stress and weaknesses of critical race Theory And uh we'll talk about The pessimistic and the optimistic Perspective on race in the history of The 20th century in America I think you

Have very interesting perspectives there But before that I'd love to look at the Current moment And um you had a conversation with Glenn Lowry and John McWhorter and From there it became clear to me I think John made clear how important to Uh the conversation about race is Policing into in today's society that That's where a lot of African-Americans Feel is sort of the the Pinnacle of Racism sits the people that believe There's still racism in America there's Still a lot of racism in America that's Where it is so um Foreign to what degree do you think There's widespread institutional racism And policing yeah well Uh my first book Yeah was a book called race crime in the Law And uh 1997 1997. wow As time flies time flies Um Unfortunately Unfortunately Um The The impetus behind that book Stands That book was Propelled By a sense that with respect to the Administration of Criminal Justice

Uh African-Americans Are Uh feel deeply aggrieved And they feel deeply aggrieved with good Reason And they feel deeply aggrieved with good Reason in at least two dimensions On the one hand On the one hand Uh African-Americans suffer From under protection and in fact in That book the central theme of that book Was that black Americans suffer from Under protection if you take a look at The broad You know the sort of the broad Trajectory of American history And ask yourself What you know in what way have black Americans been Most Oppressed Well Take a look at The Antebellum Period Period before the abolition of slavery Before the abolition of slavery In the the locales where most black People resided namely the slave states In a lot of those areas question was There a crime called the murder of a Black person Answer for a long period the answer was No there might have been a tort you know

So of a white person killed the slave a Killed a Slave Uh that person could be sued Because they had they had injured the Property Of another And would have to pay money to you know For that but had they committed a crime Answer no Um In the Antebellum Period Were black women protected Against the crime of rape In Most states the answer was no there Was no such crime Let's go to after You know slavery is abolished Thank God slavery is abolished then Let's see you know what happens what you Know so we hear lynching lynching Between the from from 1890 Until let's say 1930. Well they you know in 1890 there were There was probably you know I would say There's probably on average a lynching Every day in the United States you know Well over 300 lynchings Uh it goes down that was the case in the 1890s probably the first decade of the 20th century and then it starts going Down What was lynching about Lynching was about black people being Executed

Outside the law Did the legal system do anything about That answer no You know you you show me show me cases In which people were prosecuted Criminally For engaging in lynching You come up in most places with a null Set Black people suffered the under Protection of the law do black people Still suffer the under protection of the Law the answer is yes and people talk About the Kerner Commission report 1968 Uh black people were asked you know with Respect to the police What's your what's your main complaint In many places the main complaint was we Don't have police protection You know when when things happen to us When our houses are burgled When our businesses Are um encroached upon by robbers when Our businesses are robbed When we're assaulted You know nothing happens The police protect white people they Don't protect us Under protection Our society right now if you take a look At the statistics Who is most liable to be raped robbed The victim of assault Uh what have you

Black people I mean and then it's and it's not even Close Under protection So that's one way in which the Administration of Criminal Justice Harms black people by not Doing what government is supposed to do Which is protect us The 14th Amendment you know Protect equal protection I underline Protection of the law So that was a big theme of race crime in The law now second thing second and this Is a thing that gets most attention And it's important I think that the Under protection story does not get Enough attention but then there's a Second story The Second Story is that Black people Have historically and still today Uh black people or subjects of invidious Racial discrimination when it comes to When it comes to Um police action So you know Uh Walking down the street Walking down the street You have A black person who's let's say 20 years Old you have a white person who's 20 Years old let's make the men they're Both just walking down the street

And the question Attitude of the police towards these two An attitude you know is a complicated Thing it can show itself in various ways It can show itself in a look It can show itself in who who gets the Look You know Black persons you know walking down the Street or running down the street White persons walking down the street or Running down the street Uh what happens with respect to the Police Um Let's suppose that you know who who gets The second look Who is followed Who is detained for a moment Well some of it uh is just a on a small Tangent I apologize to interrupt but Attitude is an interesting one Um because a lot of it a lot of the Interaction doesn't show up in the data So detained for example starts showing Up in the data but before then the Second look the third look the first Look this is where the gray area of Conversation happens because uh Very much so culture and Society happens In the stuff that doesn't often show up In the data yep Yep so I tell you uh this really came Home to me

Several years ago I was I was in New York City And it was at a time when There was a lot of discussion over the Um stop and frisk stop and frisk Basically you know racial profiling on The street I was walking I was I was I Was in Harlem I'm walking down the street And Frankly you know the police weren't Bothering me I'm just walking no the Police weren't bothering me but you know I'm of a certain age I I did notice though I was I was Looking at the police And The way that the police Attitude you know had to do with body Posture it had to do with that's right Who got a second look it had to I Noticed I'm walking in the street I'm Walking in Harlem They're you know they're they're white People on the street you know most of The people that were black Some some Hispanic The level of contempt The level of animus The level of unfriendliness That was pouring off the cop the police They weren't they didn't say anything no They didn't detain they didn't say Anything

It was palpable I could feel the Attitude that was being Being directed at the young black men And the thing is see the thing is It's not as if this doesn't matter it Matters because the way I saw it these Young black men knew they felt The contempt that the police were Shedding and this was going to have a Consequence the consequence it was going To have is let's imagine that the police Did say excuse me Um Uh you know what are you up to Now if you have been feeling this Contempt If you feel like the officer who was Asking this question doesn't like you Doesn't know anything about you but just Doesn't like you on site You might answer in a certain sort of Way You're not going to give the cop the Benefit of the doubt and basically think Well you know policeman's just you know Asking me this you know probably just Trying to make the neighborhood safe Well if if that's your feeling you know The police was just asking me this Trying to make the neighborhood safe Well officer the reason why I'm here is Such and such And you know thanks for your service That's one response

Another response is I'm not going to tell you anything You know I'm not going to tell you Anything I know that you don't mean me Any I don't I know that you don't mean Me any good I'm not gonna tell you Anything am I free to leave And then the cop having heard that Then says something bad you know after Five minutes what do you have you have An altercation on your hand And I I felt that and that is part And you're absolutely right that's not Written down it doesn't get to court It's it's it's it's it's it's there But it's it's an important part of Street life It's an informal part of Street and it Has Ripple effects because that young Black man will probably talk about That cop later that day so the narrative Persists and then the cop will also talk and then there's these narratives And I think the content is such a it's Such a powerful thing it's so hard to Disentangle because you're absolutely Right the young man Let's suppose that the story ends quote Well right He's going to go And he's gonna be talking with his Friends and he's going to say let me let Me tell you what just happened to me And his friends are going to say oh yeah

That doesn't surprise me let me tell you What happened to me And you know for two hours this goes on The anger the feeling of humiliation the Feeling of a grievement Grows It's disseminated And that's part of what we have but That's not all of that's not that's that That's you know that's a important part Of what we have but we have it's even Worse than that because then you ask the Question You know what about what about Things we do know Um I know this from you know from my Teaching This was brought up You know there was a lawsuit in New York City And notice I didn't say you know I Didn't I didn't say Birmingham Alabama I Didn't say Atlanta Georgia I didn't say Tallahassee Florida I didn't say you Know the Deep South I didn't say Montana I didn't say Idaho New York City Yeah Cosmopolitan Place Metropolis In New York City the police were Challenged with respect to their Policies A judge wrote a very lengthy opinion And the facts were rolled out and the Facts were really quite horrifying

People they were there were there were There were black men who had been Stopped many many times it wasn't just Once Over and over and over again Under circumstances in which they ought Not have been stopped And you know this has real consequences It doesn't just show up here though of Course it also shows up in other places With respect to the administration of Justice And uh we still have uh you know a big Problem now you mentioned you know the Police If you ask yourself Who are the state agents That are most Consequential The police I mean you walking down the street what Other agents Have guns on them What other agents are authorized by the Law To shoot you under certain circumstances It's the police the police are the most Consequential agents of the state that Most people interact with I mean there's There's uh to push back a little bit of Consequential in it in in the physical Sense but if we return to the power of The psychological sense of contempt I Would say store clerks and stuff like

That can also be a source they're not Agents of the state right uh but if we Look at the landscape of contempt which Throughout the 20th century You know uh or the bus right You can experience the same kind of Contempt UK in other aspects of society But yes the cops can I with consequences Still put the police the policemen Or the police person Is the person walking down the street With a gun gun yeah And if you think about the way in which The law The the extent to which the police are Authorized To use their Force the police have Extraordinary Uh you know extraordinary Authority you Know you look you're you're driving your Car And you're speeding The police can arrest you right then and There And take you to jail That's an extraordinary power but they Also have because of that the leverage Just one human to another they have more Leverage to be an and the show Contempt to you to be to be the Lesser To lean into the Lesser aspects of their Natures all humans can just to be an to show contempt you had a bad Day

They have the the more freedom to do That yes and that's why that's why Uh police officers are very important I Recognize I mean I I you know I know Police officers they have a very Difficult job Uh a very important job very important Again remember what I talked about under Protection I want the police to protect Me I want the police to protect me from The rapist the robber so I you know the Police I'm with the police we need good Policing We but We need good policing and for good Policing we need accountability and one Of the scandals one of the just absolute Scandals of American law is the extent To which the police are not held Accountable It's absolutely remarkable the the Degree to which American law Fails to properly hold police Accountable They have an important job a difficult Job I want them to be very well paid As far as I'm concerned you know we Should be if police should make more Money Uh they should be given given the Importance of what they do they should Have more respect more Prestige more Money with all of that they should be Held accountable

And the way things are now they're not Held accountable and every day we see The consequences in our newspapers or Just you know talking with people so What do you make of the different Perspective on this uh from to to bring Up a person that I'll probably speak With Heather McDonald Who wrote uh A book called war on Cops and uh will Often bring up The stuff that does show up in the data To show the disproportionate amount of Homicides committed by African Americans And uh we'll also justify racial Profiling on that basis in stop and Frisk programs and we'll also bring up Things like uh the Ferguson effect uh Saying that because of this pushbacks Pushback and all the stuff we've been Saying about Police In those areas the police will step back And crime will increase I was in one Debate with her and one of the things That I said is it was a debate that was That was sponsored by the Federalist Society conservative Legal Group You know these were law conservative law Students at Harvard Law School we had a She made a presentation and they asked Me to respond and one of the things that I said was When we're talking about the police

I'm Um I'm disappointed With the Uh Reaction Of some of my conservative colleagues And I would consider her to be one of my Conservative colleagues because what are The sort of the What are some of the The important Precepts Of conservatives One very important precept of Conservatives limited government Limited government You know would a conservatives talk About the tendency Of government to overreach itself and Governmental agents To overreach themselves And I say you're right You're right I I you know right on Why is it that you somehow forget that When you're talking about the police When you're talking about the police You're never you you seem to be Unaware of this tendency that is so much In your Consciousness and other places But now when you're talking about the Police You make it seem as though I'm you know Other people are being paranoid

When they talk about the danger of Overreach we need to be very careful About the danger of overreach another Thing with respect to the pollution what To conservatives Transparency in government You're right You're absolutely right we need Transparency in government so why is it That so often when we're talking about Policing Why is it that conservatives actually Embrace police unions And are the enemies of transparency Why is it that you want to prevent the Citizenry from knowing that officers so And so Has you know there have been 10 Incidents in the last year in which Citizens have complained about office or So and so don't you think that the Citizenry ought to know that why is it That you want to keep that Under Wraps So overreach transparency the tendency Or you know the problem of governmental Agent corruption Um why is it that those sorts of things Are forgotten about When some conservatives by the way not All conservatives not all conservatives There's some conservatives Who has stuck And appropriately sowed their guns And have said a uh we need to make sure

That the police stay in their Lane we Need to make sure that the police do not Overstep constitutional bounds we need To be we need to insist on transparency There are some conservatives who have Taken that line and I salute them but There are a lot of conservatives and I Would say Heather McDonald is one of Them who all of a sudden Become just you know totally uncritical Status when they're talking about the Police so the the overstepping overreach The lack of transparency Um of course we see this kind of stuff In uh foreign policy as well which is uh Starting military conflicts and a lot of The supporters at least uh with the Iraq And Afghanistan wars were conservatives And and Hawks and so on so there's a lot Of hypocrisy in terms of principles and So on Um But maybe one question is In this discussion about racism and Policing there was a lot of Um cops that might listen to this and Feel like they're not being The profession is not being respected uh They're not being heard Not being respected to the difficulty of The problem they're facing and uh can I Just interact remember a few moments ago I mean if if if I were in charge of Things if I were in charge of things I'd

Pay police More in fact much more Than they receive Um I do police have a very difficult job Extraordinarily difficult job I mean for One thing you know sort of maintaining The law the law that's a very Complicated thing the law That's not an easy thing I mean I teach Law I spend a lot of hours with very smart People trying to understand the law very Difficult So here we expect people to understand The law at the same time that they are Grappling with people some of whom are Violent it's very difficult I respect Police officers and I said we need Police officers you did not hear me say By the way so for so let's let's get Down to Brandt's tax You did not hear me say defund the Police did you in fact to the contrary I Said defund Actually I want more funds For the police I want to hold them Accountable I understand the difficulty Of their job I respect the police I want people to Respect the police I also want the Police to respect Civilians and demand that they do Uh I am not a police abolitionist far From it far from it again we need good

Policing Uh for good policing we need good people To a degree It's almost philosophically maybe Practically Do you think police should be doing Racial profiling Profiling in general okay it's a very Difficult Philosophical moral Human question yeah so first thing we Need to do And here we get back to the you know Early part of our conversation because We focus so much on you know first part Of a word Here we have another word profiling Question what is racial profiling Now here we have you know in the weeds Uh we have people talking past one Another I've been in conversations with police Officers and debates and Uh we talk past one another because we Are defining racial profiling very Differently if you ask I've been on I've Been in conversations with police Officers and they say oh I'm totally Against racial profiling and then I say Well you know sir what do you mean by Racial profiling and here's what they Say Racial profiling is when police officers Act against somebody wholly on the basis

Of race That is that gets rid of the issue Because You know most police officers don't act Against anyone wholly on the basis of Race You could have the most racist police Officer and that that police officer is Not going to act adversely against the 90 year old black woman walking down the Street with a cane okay so it's always It's so there you know if you Define Racial profiling that way you're getting Rid of the issue The issue is the proper issue is this Should the police Be able to act against someone Uh taking race into account as a factor So let's imagine that a black person Who's 25 years old is walking down the Street right next to a white person Who's 25 years old Some people would say you know what Under those circumstances it's okay for The police officer to give two looks at The black person and only one look at The white person why because the Statistics tell us that the black 25 Year old there's much more risk of that Person acting in an unlawful way if you Take a look at you know crime statistics And ask the question Um Uh with respect to you know homicide

With respect to robbery with respect to Various you know crimes Uh what's the what what is there a is There is there a difference between the White 25 year old and the black 25 year Old with respect to certain crimes the Answer is in certain places the answer Is yeah there's a difference and there's A and there is a greater risk that the Black 25 year old has engaged in various Forms of criminality I'm not you know That okay Under those circumstances what do I say Should the police officer therefore Be allowed to take action vis-a-vis the Black person as Oppo you know as against The white person my answer is no I'm fully willing to concede let's Conceive D for the point of art you know For the point of discussion that there Is more risk There might be There might be But For For reasons of constructing the sort of Society I want We should not Empower agents of the State To act towards certain people Uh in a way that's you know adverse to Them Let me try to break this down in a Little different way

Um Let's go back to Let's let's let's let's talk about what Happens when you want to get on an Airplane You know it wasn't so low you know 9 11 Wasn't all that long ago it was a while Ago but it wasn't all that long ago and This very issue came up with the respect To the profiling Of Muslims and there were some people Who said geez you know in the aftermath Of 9 11 Profiling of Muslims makes sense You know no hard feelings but you know The 11 people who you know were on those Planes were all Muslims Now There is a rationale you could just Simply say it's not it's not Prejudice It's not animus it's not invidious it's Just You know the facts take us this way well The facts never take us this way there Are facts and then there is our choice Of how we want to respond to those facts Now you could respond by saying well We perceive Muslims to be more likely To you know do bad things on an airliner You could you could respond in that way On the other hand you could say no We want a society In which people or do not have to Grapple

With prejudice on the basis of their Religion on the basis of their race And to deal with that we are going to Demand we're going to demand that agents Of the state Act towards people in the same way And so if that means That Everybody getting on the airplane before They get on the airplane has to You know open up their luggage And it slows things down Foreign but everybody has to open up Their luggage I would prefer that Over a system in which we focus on People who are Muslim and one of the Reasons and I'm gonna bring this back to Our to the racial thing one of the Reasons why I I want to insist upon that Is because if you know if we all have to Open up our luggage What that means is we're all paying a Tax For more security And we're all likely to ask ourselves Hmm do we want to pay this tax whereas If we focus simply on the Muslims and Allow the Muslims to be the only ones Who are sort of paying the tax We'll force that on them Same in the you know black person white Person 25 years old walking down the Street

Do we want to impose a racial tax on the Black 25 year old Some people would say yes I say that's a Mistake black people aren't stupid they Know that they're paying this tax It is a violation of it seems to me the Rules that we ought to want to have to Govern our society I say spread the costs Make the police deal with everybody The same Um and don't don't allow a situation to Develop in which a group of people can Can Um accurately say We are paying more of a cost than these Other people over here so it's a better Avoiding profile is uh While it may have Uh costs on security in the short term In the long term it's the embodiment of The principles that all men are created Equal so it has a much bigger benefit Yes you know representing the fairness Yes that is uh at the core of the ideals Of this country yes Let me ask a big philosophical question Why do you think there is racism in the World Oh now you've okay fine you've now You've asked me a question which I throw Up my hands and I don't know will there Always be why is there tribalism are Humans always finding this way to divide

Ourselves and Um How bad of a problem is that it's a huge Problem I don't you know I mean I I Don't I'm not going to pretend that I Know enough To Grapple in a satisfactory way with Such a question I mean to really grapple With that question one really has to Have all you know a uh A very broad Knowledge base in which they can make Comparisons I mean the world's a big Place now from from the little bit I Know about the world and I I I read I Read as much as I can I've been I'm a Very privileged character I mean I live In a university so I'm reading Constantly and listening constantly From what I gather the problem of Divided societies is a problem that is Worldwide There's you know and it seems as though It seems as though human Ingenuity is Such that Humans will find something To divide over You know it might be texture of hair It might be Um uh you know complexion of skin Uh political ideology political ideology If the texture if the texture if the Texture of skin Is the same

It'll then be well You know you you wear these sorts of Clothes You speak in this sort of way Um you believe this whereas I believe That I mean it seems like a human Ingenuity Is such they will humans will find some Way Of distinguishing themselves and then They seem to want to embellish the Distinction it's not just a distinction It's not just you believe this and I Believe this okay that makes the world Interesting you know let's talk about What you believe and what I believe no It's usually associated with you believe This I believe this of course my way my Belief is superior to your belief And I want to put you down And now we're headed towards War the Interesting thing is if I were to step Outside of this whole thing from an Alien perspective visiting Earth I think America is one of the greatest If not the greatest countries in the History of human civilization and I Think that the the line between white And black the racial struggle is the Thing that In part made it a great nation there's Something about the division and the way You alleviate that division through the

Struggle for human rights that makes for A great nation and so it's interesting That the division is almost the fuel for The greatness for our discovery of what It means to be human what it means to be Or what Justice Means of Um and it's interesting that it seems Like there's the struggle that you're You're where you're elucidating now but That struggle itself is our search uh a Man's search for meaning and Justice and Freedom I think there's something to That as you were speaking I was Immediately thinking of A person who you know most jumped to Mine was The Great Frederick Douglass So I mean here you have a person who in My view is one of the great people in The history of the world And you know one of the things that Ironically enabled him to become one of The great people of the world he was Born he was born into slavery His overcoming Was the very thing That in a sense made him This Larger than Life figure and I think there's something to you I will Say this because a minute ago you Mentioned optimism and pessimism And Uh I'd say in the last Few years

My feeling about the United States Has Changed And it's changed in a somber way for Most of my life For most of my life I've been in the optimistic camp with Respect to my view of American race Relations You know the the optimistic camp that Was the camp that's the camp that Believes We Shall Overcome Uh that's that's Martin Luther King's Camp I mean Martin Luther King you know Martin Luther King you know hours before He's killed I've been to the Mountaintop I might not get there with you But I've glimpsed the Promised Land That optimism uh Frederick Douglass Would be in that would be in that Tradition Um there would be other people Uh wonderful good people who would be in That tradition would you Sergeant Interrupt put in the pessimist account Would you put Malcolm X on the Pessimistic Camp the pessimistic Camp is The more interesting I mean ideological I mean it is it's the more interesting Camp because in the pessimistic Camp you Have I mean if I was going to list some Of my pessimists Pessimist number one Thomas Jefferson Thomas Jefferson the author you know

Principal author Declaration of Independence he was also the author of Notes on the state of Virginia And he said in notes on the state of Virginia Basically we shall not overcome Uh he talked he said you know Um the black people Will always know That their forebears were enslaved And they will always be resentful of That always be aggrieved by that Jefferson did not think that we would Ever have in the United States a Multi-racial democracy He was very critical of slavery now he Was a hypocrite he had slaves he sold Slaves He was terrible in that way but he did Understand that slavery was horrible But He did not want he he all but he he did Not want to free the slaves for a Variety of reasons but and one reason Was because he thought that it would be Impossible to have a society in which Blacks and whites Were Equal neighbors he was thoroughly Pessimistic another pessimist Alexis de Tocqueville Thoroughly pessimistic So who were some of the other pessimists Abraham Lincoln

Pessimistic that's why he was so Interested in colonization he basically Said you know I don't like slavery but Blacks and whites are not going to be Able to share the United States maybe The best we can do is just you know put Blacks ship black someplace else can you Elaborate on that I I think people would Be surprised to hear oh yeah you will Put Abraham Lincoln in the pessimist Camp Oh Abraham Lincoln's thoroughly Pessimistic he was like he he believed He was Auntie he he was anti-slavery But he did not believe that blacks and Whites would be able to share the United States together And he was always very interested Therefore in colonization Even after the even during the Civil War He was interested in you know maybe Maybe maybe all black people would all Black people be interested in maybe Going to Panama would they be interested In going someplace else because you know Lincoln was aware of how racist white People were including himself And he did not think that black people And white people would be able to share The United States Now there's the black nationalist Tradition you mentioned Malcolm Maxwell Before Malcolm X you know Marcus Garvey Um my father My father was a thorough going pessimist

His view was a the United States was Born as a white man's country it's going To remain a white man's country Uh and that's the way it is he was Thoroughly pessimistic you mentioned uh Just a brief aside about your dad that Uh when you moved to South Carolina to Washington DC Um and you asked them why his response To you was because either a white man Was going to kill me or I was going to Kill a white man yes So he saw race as an important line that Divided people in the United States he Certainly did and he thought that the Line My father did not My father had passed away Before the elect before Obama was Elected I would have loved to have Talked with my dad what do you think he Would have said And you've ridden you wrote a book about The Obama press I did I did and I didn't I never What would my father has said my father Would have been delighted my father Would have been happy about his election I do think though I do think that my father would have Said I'm happy that Barack Obama has Been elected Hold on to your seats Let's see how the white people respond

So he would have predicted Donald Trump I think that my father I think that in 2016 I think that in 2016 you would have Said I told you yes Yes I think that in 2016 my father would Have said All of you people Who are talking about I don't know What's happened to America and how could This have happened and you know No I think my father would have said This is America being America And what has happened Is that America has been Put off kilter By a black family being in the white House it is deranged millions of white People and now this is coming home to Ruse I think my father would have Absolutely said in 2016 I Told You So in 2016 uh as you're saying is the reason That you have at least uh dipped your Toe outside of the Optimus Camp into the Pessimist Camp I'm I yeah I want to be Careful here and I don't wanna Don't give up on the Optimus case I Don't wanna I don't you're right I don't Want to give up on The Optimist Camp I Don't I I it it I have been My optimism has definitely been dampened It has definitely been tested I am certainly no I'm I am I am not I am not uh As a triumphalist as I once was

I am not as indignant as I once was in My criticism of pessimists But at this moment as we speak You know am I more in The Optimist camp That I'm in the pessimist today I'm Still probably more in The Optimist camp But my optimism has been dampened But as I speak I have to say the following things and I'd say the following things with my Father but again whom I Revere Great man But if my father was sitting here with Us I would say listen pop Uh uh it's absolutely true that the Country is more racist than I had Thought that is true It's also true Pop That The vice president of the United States As we speak is a black woman As we speak it's true that the Secretary Of Defense Now Secretary of Defense the secretary Of defense is the head of the Pentagon The Secretary of Defense knows where the Button is okay this is not a little you Know this is not A small out of the way thing this is the SEC the Secretary of Defense Is a black man There are a slew of black generals There have been black secretaries of State

There are black people who are the heads Of police forces there are black Mayors There are black people who are the heads Of or you know some of our foremost Foundations There are you know the the the the the President-elect Of Harvard University Is a black woman And we could go on and on and on and on This is not you know we're not when I Was growing up when I was growing up When I was let's say 10 years old we got A magazine Ebony magazine every month And in Ebony magazine you could turn to The middle of Ebony and they would have Black firsts the first black person to Do this the first black person to do This You could read Ebony and frankly I could Tell you all of those for I knew their Names Now I read stuff You know the you know the the the Leading Cadet the chief Cadet At the you know United States Naval Academy I'm reading I'm reading then I see a Picture Black woman I didn't know that Back in the day I would have known that Now

Has the United States changed Yes Uh is there racism yes Uh is it you know a substantial force in American Life Regrettably tragically yes Has the United States changed yes and Again if we want to go International The United States is not the only Country that is A country that has wrestled with Deep division you think about I don't Know think about India think about you Know the United Kingdom think about Practically any large nation state They've all grappled with divisions If one asks about the United States and The race question And one puts on the table That you know in 1865. now you know when I talk with Students I say 1865 they think oh my God You know isn't that when dinosaurs roam No it wasn't when dinosaurs run 1865 Frankly is not all that long ago in 1865 The great mass of black people in the United States had recently been released From chattel slavery The great mass of black people in the United States in 1865 were illiterate Now I mean it's absolutely it's it's an Absolutely extraordinary story And so one of the difficulties I have at

This moment Is wrapping my head around Two stories that are in such tension With one another one is the Continuing Story of racism which is an awful story But the other story Is a story that is encapsulated In the title of a great book of History By Um John hope Franklin From Slavery to Freedom And you know those are two stories in American Life And it takes an awful lot Put your mind around both stories and I'm trying to well as an optimist I Think you put more value to the Overcoming side of the story The overcoming of hardship the Overcoming of uh slavery of Discrimination Uh well since you mentioned illiteracy From uh what is it 150 years ago let me Ask you about affirmative action you Wrote a book on the topic titles for Discrimination race affirmative action And the law Uh first what is affirmative action And uh maybe we could talk about what Your view is on it today sure well Affirmative action Uh refers to look racial affirmative Action because there's various sorts of Affirmative action you can have

Affirmative action for veterans you can Have affirmative action for Um uh in-state residents let's suppose You have a school you know the University of you know blah blah blah And we're gonna we're gonna We want to Reach uh we we're going to give a reach Out a a hand to boost help the people Who live within this state or we're Going to have a boost for veterans we're Going to have a boost for you know for Women Uh we're gonna have a boost for men in Certain circumstances Well we're the the the the the the most The the type of affirmative action that Gets most attention and that's worth Noting as well There's lots of different sorts of Affirmative action but when you say Affirmative action the type of Affirmative action that immediately People are thinking about is racial Affirmative it seems like a race is at The core of this American experiment That we're part of in every part of its Uh bingo culture Bingo you know why is It that you know we again you know There's various there's various Ways in which institutions reach out to Help various sectors of our population Why is it that this is the one that Generates all of the pulling out of hair And gnashing of teeth we can put that to

The side for a moment Racial affirmative action refers to Efforts in which institutions Um uh uh you know reach out to provide Assistance To racial minorities now the reaching Out has can can happen in different ways Um a light form of affirmative action Might be reaching out in terms of Recruiting making a special effort to Make sure that uh young people let's say In racial minority neighborhoods know About your college You know that's you know recruitment Um On the other hand uh racial affirmative Action might take more you know might Take a stronger form and might take the Form of saying okay we have a Competition And um Uh we think that there will be too few Racial minority kids Who do well enough in this competition To to be admitted to our school so what We're going to do is we're going to uh In various ways uh give a boost To the minority kids Um if if it comes down to you have two Kids uh they both you know I don't know Have You know 99 on the test There's one place left we only have one Spot left two kids

Uh one's a black kid one's a white kid They both got 99 we're going to give it To the black kid Why well black kid All there is to it the black kid we want To you know maybe and then our Theory You know maybe our theory is that black People have been done wrong in the United States and we want our Institution to contribute to making Amends that might be a theory another Theory might be Um you know uh we as a as we we think That we'll have a more interesting Student body we'll have a better student Body a more you know better discussion If they're more black kids on campus and Unless we make a special effort to bring More black kids on campus uh you know Our our student body will be Overwhelmingly monoracial we'll just Have you know white kids a few Asian Kids a few Latino kids if there no black Kids here I don't know it'll it'll be Lacking an important aspect of American Life that's some sort of you know the So-called diversity story so any of Their various theories Some are grounded like I said in Reparative Justice Some might be granted in distributive Justice so for instance when people say Nowadays you know Um we want a cabinet we want a team we

Want a student body that looks like America that might be a distributive Justice theory for why you want Affirmative action unless we reach out Unless we Reach out and give a boost to certain Groups They won't be here And we want a campus that looks like America and we won't have a campus that Looks like America unless we give a Special boost to I don't know the Latino Kids unless we give a special boost to Black applicants so reparative Justice Distributive justice or Third diversity we just want to have an Interesting student body and to have an Interesting student body we want you Know kids from a wide array of places we Think that that'll make for a better Campus more interesting campus those are Three justifications all of which However are justifications for In a competition Giving a special boost to some people Based on their race so what's your sense Can you make the case for affirmative Action and can you make the case against It yeah I can make the case four and I Can make the case against the case four I won't spend much time on this like I Said there are three They're three Main justifications

Um your audience should know that One The justification that actually led to Affirmative action Is a justification that you don't hear About in the courts because the courts Have said that that justification Is insufficient so the real Justification behind affirmative action Was you know in the late 1960s in the Aftermath of the Civil Rights Revolution And the aftermath of the Civil Rights Movement there was a feeling that well Okay fine we're not discriminating Against black people anymore but black People have been disadvantaged By the Discrimination that has been put Upon them And this discrimination that was put Upon them Has disabled them And so they go into competitions And it's unfair Yeah they score less well on the Standardized test but You know surprise surprise what the heck Uh they went to schools in which they Got the leavings of the white folks you Know the white folks Gave the black folks the old textbooks That's what the black kids read the White kids read the newest textbooks on And on and on so Reparative Justice we're going to try to

Repair The scars left by past racial Injustice And we're gonna and so it's sort of an Effort to overcome the vestiges of past Misdeeds that was one justification for Affirmative action and frankly I think That's the justification that has always Been the predominant justification Whether people owned up to it or not but That's one justification The distributive justice justification Is is there like I say you know people We want an integrated America we want an America that looks like America Um in that justification Legitimacy is sometimes mentioned so for Instance Uh people will say things like Well You know if we're gonna in the armed Forces you can't have an armed forces in Which The you know the sort of the the people On the ground Are you have a lot of people on the Ground who are people of color but none Of the people calling the shots none of The generals None of the made you know kernels are People of color no and then you know the The the the the people on the ground are Not going to stand for that So for purpose of legitimation We need to for for purposes of buy-in

We need to have a situation in which People get the sense that Even if they're sort of low down They're still part of the story they're Part of the team So that's part of the sort of You know just you know I don't know Distributive justice notion do you think That's power to that I mean do you think There's value there's correctness to That kind of idea I think there's some Because for the application process for Different universities I think that That's probably a driving narrative the Justification for for Well affirmative action I don't know Where we put Dei efforts because they Overlap but they're not perfectly uh Overlapping the reason that the school So yeah as you know there is a case It'll we'll know about it it'll be Announced sometime in the next month Uh well month month and a half Um there's a case of the Supreme Court Of the United States in which the Affirmative action program at Harvard And the affirmative action program at The University of North Carolina are Being challenged most people think Including me that the Supreme Court of The United States Is going to limit if not Totally Seek to abolish affirmative action so

This is a very burning issue As things currently stand Uh my University and other universities Embrace affirmative action on the third Ground the diversity ground and what They say Is We need affirmative action because Affirmative action uh is good for Pedagogical reasons Now frankly Do I think there's something to that I Think there's a little something to that With respect to some subjects Uh I don't think that's what's really Going on for the most part I mean if That's what's really going on why why Don't we have more foreign students You know why why isn't there a greater Effort to bring in more foreign students Why isn't there a greater effort to Bring in more I don't know uh religious Fundamentalists why isn't there a Greater effort to bring in and you could Just name Various groups that are you know you Hardly ever see them on campus so you Don't think this kind of effort of Driving towards diversity is um Uh rigorous enough I think it's often Pretextual I think frankly the real Reason has to do with The belief and I think it's a good Belief I associate myself with the

Belief it's it's just that because of The legal rules the authorities can't Say this belief out loud But it's still the case that a lot of Institutions want to Help American society overcome its Racial past The real animating Force now this thing About You know we'll have better classroom Discussions uh you know some discussions I mean you know with some subjects Yeah listen I'm you know I'm in Ignoramus when it comes to physics my Sense of it is however that uh if you're Talking about physics you're talking About physics and frankly it doesn't Much matter in terms of mastering Physics what the demographics of that Classroom are like well you either know Physics or you don't the interesting Thing I've noticed since doing this Podcast is uh one way it does matter It's really lonely when you do a thing And you don't see somebody that looks Like you doing that thing okay and it's Such a seemingly stupid thing why does It matter if there's another person that Looks like you in this very shallow Sense but it seems to matter to people And when I talk to for example women on This podcast a lot of women reach out Saying how inspiring that is that's Interesting right like I I think we're

Still human and we see people that look Like us And uh this kind of narrow shallow Definition of diversity still matters Okay well you know I think I think I think you've made a good point and Maybe so so let's go back to the physics I mean let's suppose that Under one scenario there's a classroom And a kid sticks his head in a black kid Sticks a set in the classroom and Doesn't see anybody else black there and Has to make a quick decision and says Yeah you know nah this ain't for me Versus they stick their head in the Classroom they see a smattering of other Black people in the classroom they say Let me try me try this and then they try It and it turns out damn it they're you Know Albert Einstein So you know to that extent I can see you Know Under that scenario maybe it does matter So you know I'll have to recalibrate Still those are the three those are the Three leading justifications for Affirmative action you ask me where do I Stand with respect to affirmative action Oh no before we get to that are there Criticisms are the answer is yes there Are criticisms of affirmative action Affirmative action Is a policy like you know any policy any Policy is going to have some downsides

To it and affirmative action is no Different does affirmative action have Some downsides yes it does have some Downsides what are they well let me Mention a couple one Um Stigma Stigma so if if you have an institution That says that it Reaches out to give a boost to certain People On a racial basis They're going to be People who observe that And who are going to be thinking to Themselves hmm If so and so is here and they were given A special boost Doesn't that mean that they were not as Proficient As the other people who were here and Who did not have that boost So if they are not as proficient that Means that they might not be as good They might not be as up to Snuff Is that part of our affirmative action World yes it's part of our affirmative Action world yes I'm a professor at Harvard Law School One of the subjects I teach is contracts Uh actually that's probably the subject I most enjoy teaching I think I most Enjoy writing about Racial conflict and the legal system but

As far as teaching I most enjoy teaching Contracts well on that very first day On the very first day When I you know 80 students come they're Especially the first year students They're you know nervous I show up I'm quite sure that there's some Students there Who are thinking Okay well Is this guy as good As my other teachers because you know I Know that uh you know institutions like Harvard have made a special effort to Bring in people like this guy Kennedy Is he is good Well I mean I'm sorry if you have an Affirmative action Regime People are going to think that and are They crazy to think that no they're not Crazy to think that would no that's a Perfectly Logical thing for somebody to think Does it does it have an effect on me as The teacher He actually does have an effect on me Sure Um I'm aware that some people are Thinking that it doesn't I'm not you Know it doesn't It doesn't you know make me shaking my Boots

Am I aware of it yeah I'm aware of it Does it have an effect yeah it probably Does have an effect it probably does it Probably It probably Makes me Uh Uh it probably makes me Redouble my efforts Because I don't want anybody to think Justifiably That I'm less able than my colleagues So You know it's one of it's funny when I Was growing up my father used to tell me Over and over again Randy Ty Ty you lose okay brother let me just Tell you that and he was telling me that Because when he was you know in in an Earlier time Tai Tai you lose It was you know if it's even and there's A choice to be made the white person is Going to get the benefit of the doubt Now under affirmative action There's been a switcheroo Oftentimes it's the black person who Gets the benefit of the doubt but I'm Still in a situation yes To avoid the stigmatization yeah that is Imposed by affirmative action but is That stigma there yes it's there it is There Um I'll tell you another way in which it Comes up from a student's point of view

I'll never forget this It was in my second year Law School It was in tax class We had a very famous tax teacher Wonderful tax teacher on the very first Day of class Professor bitker wonderful man wonderful Teacher Boris bitker Called on the very first person he Called on was a black student I remember This as if it were yesterday called on a Black student it was a black woman Student And I remember when he called on her I Remember Just I felt I I I felt as if the room got quieter Really I felt as if the room got quieter And I know there was a real tenseness Within Me He didn't call on me could just go on Somebody else was a black woman student And I felt Different I felt as if I Was Uh I felt as if I was somehow Uh at issue I felt as if my place I felt as if my Status Was You know some small degree

At issue In the positive direction of the Negative just at issues at issue and so Now all of this is happening really Quickly he calls on the student This is you know happening like in Seconds yeah and she responded and she Responded really strongly it was clear She he asked her a question She answered the question she answered The question you know beautiful I mean You know very strong comprehensive Wonderful response Now you might say okay well you know Smart student okay fine next After class After class I went up to her And I clearly remember this I said That was great Thank you Why Because I'm a black student Predominantly white institution Yale Law School And I felt Some of the Again you know affirmative action I felt Some of the burden Of this affirmative action stigma so it Was almost like uh uh thank you for Showing that we belong here yes perfect Boom yes that's exactly what the

Situation and by the way I look I won The only one I wasn't being Idiosyncratic I wasn't the only one there weren't many Black people in that class but All of us and we laughed about it later We laughed about it but that was there So there's there's the stigma issue and Some people have made a lot of this some People have really made a lot of the Stigma issue my attitude towards a Stigma issue yeah it's there it's you Know again it's it's part of You know it's part of the situation but I think that the benefits outweigh the Burdens but is that a burden yeah that's A burden what are some others Um resentment Yeah resentment in society and that's a You know so In these in the fancy schools and by the Way you know remember when we're talking About affirmative action Most colleges and universities in the United States there there is no Affirmative action issue because they're Not selective hell they'll take anybody Who you know if you can pay come on in It's only a fairly small set of schools That are selective but of course those Are the most elite schools those are the Schools that people most want to get Into and that's one of the reasons why We have all this you know fighting over

Those schools now Um You know there's a whole how many Millions of people Are there in America Who have applied to various places they Didn't get in And what do they say the white person Who applied to Harvard applied to Yale Applied to Colombia You know Apply to Georgetown Apply to NYU you could go you know Didn't get in what do they say I would have gotten if it hadn't been For that racial affirmative action They're resentful well you know should They be resentful no they shouldn't be Resentful but they are resentful does That have a consequence yet has a Consequence And as a consequence on how they act Towards other people it has a Consequence on how they vote it has a Consequence And you know that's That's something Um Are there other things Yeah and you know in my book I I have a You know I go through Various Um I think that uh I think that there is a

I think that there is a certain sort of Denialism That has accompanied the affirmative Action Debate so Because You know black people like myself Want to avoid The stigmatizing burden of affirmative Action there's some people who to deal With that Have said oh Actually There is no difference Between You know the beneficiaries of Affirmative action And the other kids There is no difference Um if if the affirmative action kids got Let's say a 500 and the other kids got a 750. uh that doesn't make any difference That's just BS they're you know the only Reason the kid who you know the 550 kid Didn't get 750 is because the test asks All sorts of you know biased culturally Biased things like you know what is a Yacht Mm-hmm Well Sorry uh Uh yes there is a difference There's a 200 Point difference does the Difference matter yes the difference

Matters and by the way if you don't know What a yacht is you could know what a Yacht is without owning a yacht okay And there's this denialism That I think has really seeped into Not just the you know in into various Conversations that can have a slippery Slope effect that's beyond just this yes And you know we see it in various ways So you know this this you know this Attack on testing It's not like I'm holding the you know You know some tests are not good tests I Think we should be skeptical of Everything but there are a lot of tests That yeah they tell us something all Right they tell us who knows what And Um there's some people who are really You know Dead Set against testing Because they're dead set against Anything that might show a gap Well I think by the way you know are There gaps yeah they're gaps And what we need to do is be cognizant Of those gaps And do things to make it so that if There's a gap if you're if you're Deficient No no shame in being deficient heck I'm Deficient about a lot of things Let's you know let's learn So that I catch up But others you know but I think

Sometimes there have been people who've Been afraid Of even acknowledging The gaps of course there's uh I guess a Colleague of yours Michael sandel with Uh with tyranny and Merit there's uh Interesting rigorous ways to kind of Challenge ways on the flip side of that Were obsessing with Merit can go wrong Also yes uh you mentioned Michael sandel He's a a a wonderful colleague and he's A wonderful friend I've known him a long Time I think he makes very important uh Arguments uh about meritocracy Um I disagree with uh some of the points That he makes about you so you lean Towards the the importance of Mayor Talkers I think that Mary uh yes I think That I think that there are values in Meritocracy extremely important that in Fact You know the the the movement from you Know feudalism the movement from status The the the the the idea of you know I Don't you know I don't care who your you Know father or mother was I don't care From what part of town you come from I Don't care what your last name is I Don't care what your color of your skin Is Show me what you can do And then somebody sits down okay I'll Show you what you can do you know what I Can do and they show it you're in

I think there's a lot to that and you Know the the impulse the sentiments Behind that I'm I I I resonate with that I think That there's a lot there what I want to Do is Um I want to get rid of those features In society That deprive people Of uh the the what you need To develop yourself Uh you know sometimes those are Psychological Sometimes it's uh you know you're not Around people who've done things that Give you the idea that you can do things I want to get rid of that But the idea of You know people Um the idea by the way of You know distinguishing you know this is Excellent And the people who are excellent You know they're they're here And then there are people who are Good Are they excellent no they're not Excellent They're good Uh I I would I want to I'm not gonna you Know close my eyes to that distinction And uh uh highlight that distinction and Yet at the same time maintain a sense That uh their basic worth as a human

Being is equal yes so To you know uh Was a run BMC one of the rap groups no You know we're all written down on the Same list yeah we're all written down on The same list yes we're you know uh so I Want to recognize our fundamental Humanity Um I don't think that that I think that One can recognize our fundamental Humanity and one can also recognize as Far as I'm concerned That Um we all collectively should make sure That we we do all that we can to prevent People from sinking below a certain Level and being you know in misery I'm You know All for that But I want to be careful About Some of the attacks that I hear on Meritocracy so some of the people Including again I have all the respect In the world for for for for for for Michael sandeli you know talks about the The the arrogance of the winners Okay I want to be you know I I don't Want the winners to be arrogant that's Right luck has a lot to do with things You know you were you you didn't have Any control over the circumstances in Which you were born into you were lucky That you were born healthy and that you

Were born with a you know well working Mind you didn't have anything to do with That that was pure luck there's some People who don't have that luck so don't You know you know don't be you know Mr Big Stuff Okay So I'm you know I'm against that sort of Arrogance you know I'm entitled as if as If I taught myself how to read no you Didn't teach yourself how to read there Was people who did all sorts of things For you and you don't even know it Okay so you know I want to you know get Rid of the arrogance Uh have have decent humility I'm all for That at the same time You know Um I want to be careful about The problem of Envy I want to be prob I Want to be careful about the problem of Resentment I want to be I want to be careful about You know I I've heard you know so let's Not have Let's not give a trophy To the person who wins the race because To give a trophy to the person who wins The race will make the person who they Defeated feel bad no no no Um no I don't want that I want to give a trophy to the person Who wins the race because I think it's a

Good thing To valorize The best Yeah it's a it's a a kind of celebration Of Um this whole human project that we're On yes is celebrating the best You mentioned your father several times So let me just Linger on that what what Have you learned from What did you learn about life from your Father There's I've been just such A lucky person I mean I I I feel like I've just lived An absolutely Charmed Life And I live I mean The work that I do Is what I love doing Um I would pay to do what I am paid to Do yeah I mean it's it's you know it's It's great and um I've been I've been fortunate in so many Ways And one way in which I've been fortunate Is uh my parents My parents Um Rachel Spann Kennedy Henry Harold Kennedy my mother born in Columbia South Carolina my father From uh New Orleans Louisiana They were refugees from the Jim Crow

South Uh they were people who put their all Into their children I have an older brother of a younger Sister All three of us know Beyond you know beyond any controversy That we were loved and dearly loved by Our parents And they were great people My father Um very interesting man very Independent-minded he was perfectly Willing to go his own way And uh I learned much from him including I Learned I learned things from him even When I ultimately disagreed with him so For instance again to go back to his Pessimism Yeah he was pessimistic thoroughly Pessimistic Um But He was also He was also willing to change in certain Ways in fact both my parents I mean one of the most important things That happened to my parents was that I'd say When I was Let's say 10 years old I was born in 1954. so in 1964 in 1964 I Think my parents would have taken the

Position that Um you definitely never under any Circumstances trust a white person If a black person trusts a white person That person is a fool do not trust white People all right They are not to be trusted And Um It's the highly highly highly unusual One Who is not prejudiced okay so white People are not to be trusted and you Know by and large are going to be your Enemy all right so let's just face that That's that's was their their point of View Um I'd say that I'd say that 10 years later That point of view had been leavened Somewhat Um I think and you know you say well What happened in those 10 years well Certainly in my life Uh one of the things that happened in in Those 10 years is I I was a student In various schools And I had a series of Teachers I've had wonderful black Teachers I've also had wonderful white teachers

And my parents paid attention to who my Teachers were and how my teachers Treated me And I think that they were affected By the way In which There were white people Who Really helped me And were on my side And we're thoroughly on my side And I think that that experience Uh Changed my parents in their General view They you know skeptical yeah but they Were Um the the the the possibility the Possibility Of a white person Genuinely being the friend Of a black person That Became alive to them and I give them a Lot of credit because they were they Were adults and you know for an adult To change that's a big deal but my my Parents did change in that Transformation that was inspiring to you Was formative to you in terms of joining The Optimist Camp hugely and you know uh The the school I mean I again I you know I said a moment ago how lucky I've been Heck Um I teach it I teach at Harvard Law

School I attended Baleo College Oxford I got my law degree from Yale Law School I got my undergraduate degree at Princeton University Those are some pretty good schools they All were they all were The most important School however that I Attended the school that made the most Difference in my education was my high School Saint Albans School St Albans school for Boys And at St Albans I encountered A Cadre of teachers And by the way uh Saint Albans when I Went to Saint Albans All these features were white All these teachers so there was one the The the the the the the the head of Athletics Very important man very impressive man Brooks Johnson was black otherwise White teachers And these teachers made a huge Difference in my life And you know I can call their names boom Boom boom boom boom The greatest of them all Was a man by the name of Um Jack McCune

Yeah We called him Gentleman Jack Gentleman Jack McCune And um what subject did he teach he Taught me Uh history he was my advanced placement History teacher But um John F McCune and we shared a birthday Um John F McCune was a fabulously good Teacher And we developed a deep Lifetime friendship I was with Mr McCune The day before he died And Um You know He was a white man And uh I've had other teachers who some of whom Have become colleagues of mine uh You know Sanford Levinson Sanford Levinson was a teacher of mine at Princeton Uh he's become a colleague of mine I mean it would be frankly it would be Impossible for me to You know I hear I can't make some sort Of You know sort of blanket Condemnation Of white people With Sandy Levinson in my life I mean it Would be seriously John F mccunamai with

Eric foner in my life with my colleague Martha minnow in my life my colleague Cass sunstein in my life impossible You know that speaks of the power of Teachers and mentors oh yeah And you're that to a lot of people well I I've I've taken that to I hope I hope Listen I would be I would listen I would Be absolutely overjoyed If there was a student who thought of me In the way that I think of Gentleman Jack McCune if there if if that's the Case eat just one just one If that's the case I'm Overjoyed that's uh that's a life Well lived What do you think uh of Martin Luther King's uh I have a dream Do you still share that dream I think that Martin Luther King Jr's I Have a Dream speech is one of the great Speeches not only in American history But in the history of the world you know There's there's a tendency now for People to sort of poo poo that speech Um I think unfortunately the speech you Know has been embraced by you know you Know advertisers and Corporate America It's been it's been so you know it's It's been heard so many times that it's Sort of has been made to suffer from What some people might view as Overexposure it's so unfortunate I mean

Uh it's too bad when uh especially when Hollywood rolls in they did that with uh John Lennon's imagine uh recently uh Which I think is one of the greatest Songs ever and the actors and actresses Ruined it by trying to like sing along And do this kind of cliche Hollywood Thing it has but people have tried to Make it into a cliche the fact of the Matter is it's the the the sentiment the Sentiment behind I have a dream yeah I'll associate myself with that and Anybody wants to anybody wants to see Some great oratory Go watch And uh you know Martin Luther King Jr I mean he he gave he gave You know several great speeches you know His first speech the first speech that He gave As a civil rights Leader The Holt Street Baptist Church 1955. At the beginning of the Montgomery Bus Boycott which was virtually an Extemporaneous speech was one of his Greatest and he was he was I think 26 Years old great His last speech you know his Mountaintop Speech great speech but I have a dream I Love it Um I will associate myself with those Sentiments any day of the week Absolutely there's still hope for um a

Deep kind of uh multi-racial a deep Unity in the 21st I have that hope and I Think that the I think the sentiments That Martin Luther King Jr expressed in August 1963 That represents The best Of American Life And Um I think it's a you know do I want to See that come to pass yeah I want to see That come to pass and we'll we'll work To You know push that project as along as As far as it'll go well thank you for Carrying his Spirit of optimism forward Uh the spirit of your mother and father Uh thank you for all the amazing work You've done and thank you for just this Conversation is a huge honor this is Awesome thank you thank you thank you Randall Thanks for listening to this Conversation with Randall Kennedy to Support this podcast please check out Our sponsors in the description and now Let me leave you with some words from Martin Luther King Jr Darkness cannot drive out Darkness only Light can do that Hate cannot drive out hate only love can Do that Thank you for listening and hope to see You next time

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