Barack Obama has gotten past affirmative action. Have we?

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

Shades of Gray

Barack Obama has gotten past affirmative action. Have we?

Barack Obama. Click image to expand.
Barack Obama

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

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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

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

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

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

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

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

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

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