NRPLUS MEMBER ARTICLE I n a New York Times guest essay titled “The Truth Is, Many Americans Just Don’t Want Black People to Get Ahead,” Harvard Law professor Randall Kennedy — a reputable scholar loved by an intellectually diverse audience — addresses a “sobering feature” of American history: Efforts to advance African Americans and correct racial disparity have faced criticisms of “reverse discrimination” and “preference.”

To his credit, Kennedy’s outline of events is revealing. John C. Calhoun warned that emancipation’s next step would be political equality with whites, and America would “soon find the present of the two races reversed.” Andrew Johnson vetoed Reconstruction-era civil-rights legislation that provided birthright citizenship to all born in the U.S. besides American Indians since it discriminated against “patriotic foreigners” (European immigrants) and favored blacks. He also opposed federal protections for civil rights: “The discrimination of race and color is by the bill made to operate in favor of the colored and against the white race.” Similarly, Johnson viewed the 14th Amendment as racial favoritism. Johnson’s veto was overridden, and the 14th Amendment was, obviously, passed. In 1883, the Supreme Court struck down legislation prohibiting racial discrimination in public-accommodation provisions, stating that the black man “takes the rank of a mere citizen and ceases to be the special favorite of the laws.” In the 1940s, segregationist Southerners as well as New York City administrator Robert Moses — controversially accused of building “racist parkways” in New York — opposed anti-discrimination laws on a similar basis of special preferences.

But Kennedy soon shifts the narrative to 1960s liberals and their attacks on “measures they deemed to constitute illicit racial preferencing,” which were different from the anti-discrimination policies of the 1800s in content and context alike. For instance, the “compensatory” hiring of blacks to make up for past injustices, proposed by the Congress of Racial Equality (CORE), was criticized by President John F. Kennedy. He did not think it possible to “undo the past” or wise to “begin to assign quotas on the basis of religion, or race, or color, or nationality.” Kennedy (the author) argues that President Kennedy was wrong to say that racial politics “begins” with equity for the marginalized, since unofficial quotas had already “enabled white men to monopolize huge swaths of the most influential and coveted positions in society.”

Here is where the author makes a mistake: Just because opponents of preferential hiring practices for blacks did not publicly dispute preexisting parallel preferences for whites, that does not mean that their opposition was wrong or prove that it is or was based on racial bias. Nor does Kennedy present evidence that modern-day opponents of affirmative action — in contrast with transparently prejudiced Southern segregationists and the like — harbor animosity toward black success.

Kennedy commits the hypocrisy fallacy in the modern context, noting that “those who have been at the forefront of attacking affirmative action have hardly been militants in challenging white supremacist policies, habits, and customs.” He adds, “Often, the discrimination that snags their empathy is that which they see as adversely affecting white people.”

However, what “white supremacist policies, habits, and customs” is Kennedy referring to? We cannot say for sure, but I doubt that most vocal opponents of affirmative action are in favor of the Ku Klux Klan. And the type of discrimination that typically “snags” Americans’ empathy these days is the one that is best known for systemically working against Asians. Is the focus on Asians a façade for white solidarity? We have no reason to think so, as multiple prominent media outlets have argued that affirmative action benefits whites.

Kennedy suggests that even the Supreme Court should consider the “malign resentment at the sight of Black people getting ahead” as a reason why the usual supporters of small government now favor an “absolutist, judicially imposed command when it comes to affirmative action.” Isn’t it possible that the reason is those same individuals’ wholehearted embrace of the anti-discrimination ethos?

I understand why we ought to be aware of our history when we debate affirmative action, and Randall Kennedy is right that the historical pattern “should give pause to all the participants in the debate.” But I do not understand why likening affirmative action’s opponents to segregationists is appropriate in this debate, as opposed to focusing singularly on the arguments’ merits.