as a group. To the extent then that eligibility for any position depends on comparative test scores, in practice blacks are likely to be disproportionately excluded from that position.

In the Weber case, which involved entrance into the skilled crafts, affirmative action was necessary because of the much greater seniority of white workers in relation to black workers, resulting from the fact that blacks had been hired by the employer only in very recent years. Prior to 1974, the employer had no in-plant training program for skilled craft workers, and hired all its skilled craft workers from the outside. Because blacks had long been excluded from craft unions and union apprenticeship programs, less than 2 percent of the skilled craft workers at the plant were black, although blacks comprised 39 percent of the workforce in the relevant labor market. In response to affirmative action pressures from the federal government, the employer established a skilled crafts training program for its inplant workers. Applicants were selected on the basis of plant seniority, with the proviso that at least 50 percent of the trainees would be black. In effect, there were racial seniority lists, with the white workers and the black workers having the highest seniority on the respective lists being chosen. If the choice had been on the basis of straight seniority without regard to race, not many blacks would have been chosen, since the employer's workforce was only 15 percent black, and most of them were fairly recent hires with very little seniority. It is somewhat ironic that the training program challenged unsuccessfully in Weber by a white employee as being "discriminatory" benefited whites as well as blacks, and that if it had not been for that program, neither Weber nor any other in-plant white employee would have had the opportunity to obtain entry into the skilled crafts.

Whenever seniority is used as the criterion for selection, it will perpetuate the present effects of past employment discrimination and severely curtail the opportunities for advancement on the part of black employees. Since many employers, particularly in the south, did not hire blacks at all, except for menial jobs, prior to the Civil Rights Act of 1964, and continued to discriminate against blacks long after the Act went into effect, black workers as a group have much less seniority than white workers as a group. The relatively low seniority of black workers as a group has become quite apparent during these times of economic downturn, with blacks, who have been hired later, being laid off disproportionately in comparison to whites. To the extent that seniority is used for any purpose, the effect will be to disadvantage blacks as a group and to perpetuate the present effects of the past racial discrimination in employment.

Affirmative action is also necessary if black business enterprises are to participate at all in the governmental marketplace and to compete at all successfully against white-owned enterprises. When Congress provided for a ten percent "minority business enterprise" set aside in the Public Works Employment Act of 1977, which was unsuccessfully challenged in Fullilove, it made legislative findings to the effect that there had been a long history of racial discrimination in the construction industry, which had impaired or foreclosed access by minority business enterprises to public contracting opportunities. Although minority business enterprises were capable and ready to do the work, they simply were not in a position to compete against whitecontrolled enterprises. The difficulties that minority business enterprises have in capital formation and in other aspects of entrepreneurship were well-known to Congress when it enacted the set aside and continue today.

So unless affirmative action is employed, minority business enterprises will be virtually excluded from participation in the governmental marketplace.

The above discussion, it is submitted, demonstrates why affirmative action is necessary to overcome the present consequences of the long and tragic social history of racism in this nation and to insure the full and equal participation of blacks in all aspects of American life. As stated previously, these consequences are selfperpetuating and self-reinforcing. The same factors that have created a condition of societal racial inequality will, if not redressed directly and concretely by affirmative action, serve to perpetuate and continue that societal inequality.

There are few today who will try to justify, at least publicly, overt discrimination against blacks, or who fail to express regret over the condition of societal racial inequality that exists in America today. But there are many who because they proclaim the virtues of racial neutrality, are opposed to affirmative action. They contend that despite the long history of racial discrimination against blacks and despite the fact that the pervasive consequences of past discrimination against blacks remain, we cannot take race into account and must be "color-blind."

By proclaiming the virtues of racial neutrality, however, they deliberately choose to ignore the self-perpetuating and self-reinforcing consequences of the social history of racism. If we have racial neutrality, we will perpetuate and maintain white supremacy. If we have racial neutrality, we will not have racial equality. After a

long history of racial discrimination, the principle of racial neutrality sounds nice, but the bottom line-and the realistic meaning of racial neutrality today—is the perpetuation of white supremacy and of "two societies, black and white, separate and unequal."

The realistic "choice of models" for American society today then is illustrated by the following diagram:

The racial neutrality model

Stage one.-The social history of racism; race taken into account to disadvantage blacks.

Stage two.-Racial neutrality.

Result.-Racial

situation of blacks.

inequality, white supremacy, and the continued disadvantaged

The affirmative action and racial equality model

Stage one.-The social history of racism; race taken into account to disadvantage blacks.

Stage two.-Affirmative action; use of race-conscious criteria favoring blacks in order to overcome the present consequences of the social history of racism.

Result.-Racial equality between blacks and whites in American society; thereafter racial neutrality.

Proponents of affirmative action, no less than its opponents, also would like to see a society in which race would be irrelevant. But they recognize that we cannot move in one fell swoop from a society in which race was universally taken into account to disadvantage blacks into a society premised entirely on racial neutrality. At least we cannot do so without perpetuating white supremacy and black inequality. Racial neutrality must promote, not defeat racial equaltiy. When we have racial equality between blacks and whites in American society, then and only then can we have true racial neutrality. This is the objective of affirmative action. In the America of the future, as a result of affirmative action, we will have racial equality, and then racial equality and racial neutrality will be correlates, not opposites.

This society has been race-conscious for a long, long time. It has been raceconscious in its discrimination and victimization of black Americans. The consequences of that discrimination and victimization remain, and they will be alleviated only if we deal with them directly. Just as a physician must not only arrest a disease and prevent its recurrence, but must also prescribe treatment for its lingering effects, American society must now deal with the present consequences of its legacy of racism. It is only by the use of affirmative action that we can realistically hope at long last to put an end to this tragic legacy. It is only by affirmative action that we will finally have One America, and true equality between blacks and whites in American society.

Affirmative action has its costs, and this is perhaps the heart of the controversy. Affirmative action will benefit blacks as a group, by increasing the participation of blacks in all aspects of American life. While the immediate beneficiaries will be individual blacks-the black student who is admitted to medical school or law school, the black employee who enters the skilled crafts training program, the black enterprise that gets the government construction contract-the ultimate benefits are realized by blacks as a group, as blacks become full and equal participants in all aspects of American life, and, as will be demonstrated, by the society as a whole. The costs are not borne by whites as a group. Whites as a group now have full and equal participation in all aspects of American life and will not be injured if this participation is shared with blacks. Whites as a group of course can have no legitimate interest in maintaining their present position of societal dominance, and cannot legitimately object to sharing power with blacks.

The direct costs of affirmative action are borne by individual whites, who, but for affirmative action, would have received the benefits that instead are going to blacks. Those individual whites suffer in the literal sense of the term, racial discrimination-disadvantageous treatment due to considerations of race. We may assume, although this is not always the case, that the individual whites who suffer this racial disadvantage are "innocent" in that they did not benefit directly from past discrimination against blacks.

What this means, however, is that the burden of the consequences of the social history of racism in this nation is shared to some degree by whites instead of falling entirely on blacks. While the adversely affected whites are innocent, so are all of the black population, which has been denied full and equal participation in American life. As Chief Justice Burger observed in the Fullilove case: "A sharing of the burden by innocent parties is not impermissible." In addition, as will be demonstrated, there is a strong public interest in the full and equal participation of blacks in

all aspects of American life. It is a well-settled legal principle that individuals may properly be required to make sacrifices in the public interest, and that the public interest may require that particular individual interests-let alone the interests of an entire race of people-be preferred over other individual interests.

It cannot be a legitimate objection to affirmative action then that it imposes costs on individual whites. Affirmative action is necessary to overcome the present consequences of a long and tragic social history of racism in this nation. It is morally right that those consequences be overcome and that we have true racial equality in American society. The moral rightness of affirmative action is in no way lessened because it imposes some costs on whites and requires that the burden of the consequences of the social history of racism be shared by innocent whites as well as by innocent blacks.

I now want to discuss more precisely the meaning of the equal participation objective. The goal of the equal protection objective is to end white supremacy and black inequality in all of their manifestations and to achieve genuine equality between blacks and whites in American society. This means that ultimately blacks as a group will participate equally with whites as a group in all aspects of American life. Blacks, as well as whites, will be significantly involved in societal governance. Blacks, as well as whites, will share positions of power and prestige. Blacks will be meaningfully represented in the economic system, and blacks will not be disproportionately lower-income in relation to whites. The consequences of the social history of racism will not be so strikingly visible in American society as they are today. The equal participation objective is not based on any notion of "reparations" or "proportionality." It does not mean that because blacks have been subject to a long history of discrimination and victimization, white society now owes blacks "reparations" and must give blacks benefits at the expense of whites. Nor does it mean that blacks as a group are entitled to the "proportionate" share of the benefits of American society that they would have received had it not been for the social history of racism or a share of those benefits in exact proportion to their representation in the general population. The equal participation objective is not concerned with "reparations" for the past or with "proportionality," but with the absence of the full and equal participation of blacks in all aspects of American life. It does not seek to give blacks the proportionate share of societal participation and power that they would have had in the absence of the social history of racism, but to give blacks as a group some meaningful share of societal participation and power and to bring them fully into the mainstream of American life.

The focus of the equal participation objective is on the present consequences of past discrimination and victimization that are felt by blacks as a group today. If those present consequences did not exist and were not self-perpetuating and selfreinforcing, there would be no justification for invoking the equal participation objective. This is another basis for distinguishing the situation of blacks from the situation of white ethnic groups, and it also points up the irrelevancy of “reparations" and "proportionality" to the equal participation objective. For example, it cannot be doubted that in the past there has been discrimination against Jews in America. (Since I am Jewish, I can discuss the existence of Jewish societal power and distinguish the situation of blacks from the situation of Jews without being accused of anti-Semitism.) Let us assume that if it had not been for such discrimination, Jews as a group would have even a greater share of societal power than they now have, for example, that there would be even more Jewish physicians and lawyers than there are now. But Jews as a group do not lack a "fair share" of societal power; there are, for example, quite a substantial number of Jewish physicians and lawyers. If blacks as a group, despite the social history of racism, also had a "fair share" of societal power and were participating fully in all aspects of American life today, there would be no justification for invoking the equal participation objective, and affirmative action favoring blacks could not be sustained on this basis. Similarly, although Asian-Americans have been subject to discrimination that can be characterized as "racial," Asian-Americans as a group also have a "fair share" of societal power and participation in relation to their representation among the general population. Thus, affirmative action favoring Asian-Americans cannot be justified as necessary to advance the equal participation objective.

In other words, the justification for the invocation of the equal participation objective in support of affirmative action favoring blacks is that the social history of racism has produced present consequences for blacks as a group denying them equal participation in American society and relegating them to a condition of racial inequality, consequences that cannot be overcome without affirmative action. Again, to quote Justice Marshall in Bakke: "In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the

mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society."

I believe that blacks as a group have a moral right to societal racial equality, to the full and equal participation in American society and in all aspects of American life. This is the essence of the promise that this Nation made to black-Americans when it emancipated them from the chains of slavery that it had forced upon them. This is a promise that the Nation has yet to keep.

But I want now to approach the equal participation objective from another perspective. I want to approach it from the perspective of the societal interest in the full and equal participation of blacks in all aspects of American life. I believe that there is a very strong societal interest in such participation, and that many benefits will flow to American society from the implementation of the equal participation objective. I will develop this proposition by illustrating the operation of the equal participation objective in three areas: participation in the functions of government; participation in the "power" professions, such as law and medicine; participation in the economic system.

As regards participation in the functions of government, consider first the police function. Blacks traditionally have been grossly underrepresented in municipal police forces, even in cities having a substantial black population, and virtually nonexistent in state police forces, again regardless of the size of the state's black population. For example, when the City of Detroit adopted an affirmative action program with respect to police hiring and promotions in 1974, the City had a black population of nearly 50 percent, but the police force was only 17 percent black, and less than 5 percent of the supervisors were black. The State of Alabama and the State of Mississippi, despite large black populations, did not have a single black on the state police force until the federal courts ordered them to do so. So long as blacks are grossly underrepresented in the police force, the police force will be perceived by the black community as an occupying army, as was so tragically demonstrated in the 1967 riots. According to the President's Commission on Law Enforcement and the Administration of Justice: "In order to gain the general confidence and acceptance of a community, personnel within a police department should be representative of the community as a whole. . . If minority groups are to feel that they are not policed entirely by a white police force, they must see that Negro or other minority officers participate in policymaking and other crucial decisions." It was in this spirit that the City of Detroit, under the leadership of Mayor Coleman Young, adopted an affirmative action program with respect to police hiring and promotions in 1974. When that program was challenged in federal court, the Court found that as a result of the program, there was a dramatic improvement in police-community relations, there were less citizen complaints, there were fewer shootings of police officers and ultimately there was a lowered crime rate. As a federal appeals court observed in connection with Detroit's affirmative action program: “The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to public desires. Rather it is that effective crime prevention and solution depend heavily on the public support and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public's perception of law enforcement officials and institutions." The equal participation by blacks in the police function then most clearly serves the societal interest in effective law enforcement.

There is the same societal interest in the equal participation of blacks in all functions of government. The Senate Committee on Labor and Public Welfare, when recommending the extension of Title VII to state and local governments in 1972, observed that: "The exclusion of minorities from effective participation in the bureaucracy not only promotes ignorance of minority problems in that particular community, but also creates mistrust, alienation, and all too often hostility toward the entire process of government." The equal participation of blacks in all functions of government serves important societal interests by (1) insuring that the government will be aware of the problems and needs of minority communities, (2) insuring that the government, while making and implementing governmental policy, will have the benefit of the perspective that comes from "the experience of being black in America," and (3) helping to bring about confidence in the institutions of government on the part of the black community. If we are to have the best government that is possible to have, it must be a government that is representative of all the people, and it must include the substantial participation of blacks.

We may now consider the societal interest in the equal participation of blacks in the "power" professions, such as law and medicine. As lawyers, we are fully aware of the power and influence that lawyers as a group have in American society, not only in regard to their role in the legal system and the administration of justice, but

in Congress, in state legislatures and governmental bodies, and many other important societal institutions. Being a lawyer means that one is in a position, by virtue of one's profession to do important things in American society.

Although the black population is now close to 12 percent, less than 2 percent of the lawyers in this country are black, and blacks clearly are not equal participants in the exercise of societal power that is reflected in membership in the legal profession. The societal interest in the equal participation of blacks in the legal profession is not so much that black lawyers will be available to represent black clients (although blacks should have the same right to be represented by black lawyers that whites have to be represented by white lawyers), but that blacks will be participants in the exercise of societal power by the legal profession and will be able to bring the "black perspective" to that exercise of societal power. Once admitted to the profession in reasonable numbers, blacks, like whites, will be judges and prosecutors and law professors. They will be lawyers for the government, "members of the firm," and bar association officers. They will be in a direct position to contribute to the development of the American legal system and to make that system responsive to the needs of black people. In addition, blacks as a group will have greater confidence in the administration of justice, because blacks, as well as whites, will be full participants in that system. There is thus a strong societal interest in the equal participation of blacks in the legal profession.

There is likewise a strong societal interest in the equal participation of blacks in the medical profession. Apart from the fact that it has been clearly demonstrated that black physicians are far more likely than white physicians to practice in black communities and to serve the immediate health care needs of those communities, the societal interest in the equal participation of blacks in the medical profession relates to incorporating the "black perspective" into the exercise of societal power by the medical profession. The medical profession exercises societal power in a very significant way by controlling, to a large degree, the nation's health care delivery system. Physicians do much more than treat patients. They serve on hospital staffs and medical committees. They influence the distribution of medical resources and the location of health care facilities. They are involved in decisions that affect the kind of medical services that will be offered and the cost of those services. They perform substantially the same function with respect to the health care delivery system that lawyers do with respect to the legal system and the administration of justice.

There is a considerable "health gap" between blacks and whites in this nation, with blacks as a group having higher mortality and morbidity rates than whites as a group and with black communities being underrepresented in the delivery of health care services. It is certainly reasonable to believe that the equal participation of black physicians in the medical profession can contribute to ending the "health gap" between blacks and whites. Black physicians would seem for the most part to be in a better position than white physicians to assess the health care needs of black communities and to understand the difficulties that black people have in making use of the traditionally white-dominated health care delivery system. They could also be expected to be more disposed to "lobby" for the provision of adequate health care facilities for black communities. The equal participation of blacks in the health care delivery system, like the equal participation of blacks in the legal system, serves a very strong societal interest.

Blacks as a group do not participate equally in the American economic system, just as they do not participate equally in the legal or health care delivery systems. As pointed out previously, there are relatively few black-owned business enterprises, and such existing enterprises generate less than 1 percent of the total business volume in the nation. In addition, as pointed out previously, blacks are disproportionately underrepresented in the "white collar" jobs, particularly the more prestigious ones, and even in the "blue collar" category, blacks are disproportionately concentrated in "laborer" jobs and are very underrepresented in "skilled" and "crafts" jobs.

The lack of the equal participation in the economic system directly correlates with the condition of racial economic inequality that has been described earlier. Affirmative action in the economic area involves making structural changes in the way that particular forms of economic activity operate so as to increase black participation in those activities. The affirmative action program involved in Weber was directed toward increasing the representation of blacks in the skilled crafts. The affirmative action program involved in Fullilove was directed toward improving the position of minority business enterprises by giving them a 10 percent share of public works projects financed by federal grants. The ultimate objective of these structural changes is to alleviate the condition of racial economic inequality, reflecting the lack of equal participation of blacks in the economic system. The training of