blacks as skilled workers will contribute to increasing the income of blacks as a group. Similarly, since experience indicates that black business enterprises are likely to employ proportionately more blacks than are whites business enterprises, the continued survival of these enterprises will likewise increase the income of blacks as a group. In addition, the increase in the number of black craft workers and viable black-owned enterprises may have the effect of reducing black unemployment and underemployment. Finally, there will be a multiplier effect insofar as these enterprises deal with other black enterprises as suppliers or customers.

Racial economic inequality is perhaps the most enduring and persistent consequence of the social history of racism and it reinforces other forms of racial disadvantage. Integration of blacks into the mainstream of American society cannot be achieved until race is no longer associated with low-income status, as it is today. As Representative Mitchell has stated: "We cannot continue to hand out survival programs for the poor in this country. We cannot continue that forever. The only way we can put an end to that kind of a program is through building a viable minority business system." Racial economic inequality can be ended only by making structural changes in economic activity so as to increase black participation in that activity and bring about equal participation of blacks in the American economic system. For all of the above reasons, there is a strong societal interest in doing so. The above discussion is designed to demonstrate the societal interest in the equal participation objective. In response to the question, "Who needs affirmative action," I would answer, "We all do." We need affirmative action so that we will have the full and equal participation of blacks in all aspects of American life. Ultimately, this will give us not only a racially equal society, but a better society, a society in which we will have succeeded in putting the consequences of the social history of racism behind us, once and for all.

I would like next to address what I consider to be some of the "false issues" associated with affirmative action. First there is the "horrible example." With many affirmative action programs, sponsored by a large variety of governmental agencies and private institutions, there are bound to be instances where a particular use of race-conscious criteria or a particular affirmative action program can be shown to have produced what everyone would agree was an unsound result. I am sure, for example, that some government official somewhere has demanded that an employer have certain percentage of blacks in the workforce where no blacks were available. But these "horrible examples," which are found in any program, do not undercut the legitimacy or efficacy of affirmative action. The answer, here as elsewhere, is to correct the deficiencies and to make sure that affirmative action serves the purpose that it was designed to serve.

On the other hand, some of the classic "horrible examples" do not demonstrate an unsound or improper use of affirmative action, particularly in regard to the implementation of the equal participation objective. The most classic "horrible example" cited by opponents of affirmative action is the preference given to an "advantaged" black allegedly at the expense of a "disadvantaged" white. There is the proverbial "black physician's son,' who, notwithstanding a superior education at the best private schools, had lower comparative objective indicator scores than white applicants who "worked their way through college," but who was admitted to medical school ahead of the white applicants because of affirmative action. This example, it is said, shows why affirmative action is "wrong." Well, it doesn't. In the first place, as pointed out previously, there simply aren't very many black physicians, so there won't be very many black physician's sons or daughters, and this particular example can't happen too often.

Similarly, while advantaged blacks do show up disproportionately among medical and law school applicants-which would be expected, since they are less likely to have suffered educational disadvantage than other blacks—the fact remains that at most schools, the great majority of the black applicants have come from low or moderate income backgrounds. More to the point, if the purpose of affirmative action in regard to professional school admissions is to increase the number of black physicians, it is rational, in light of that purpose, to admit the advantaged black student despite the lack of individual “deservedness." Because of that person's superior education, that person is more likely to succeed academically, and no matter how advantaged a black person has been, that person still has had the "experience of being black in America." Since the admission of that person serves the social goals of the affirmative action program, it is justifiable. Any criticisms of particular applications of affirmative action must be evaluated in relation to the purpose of the affirmative action program in question, and when viewed in that light, the criticisms may turn out not to be well-founded.

The second false issue is the matter of “merit." It has been contended by opponents of affirmative action that affirmative action is inconsistent with the principle

that "each individual should be judged on his or her own merit." In the first place, it may be asked what is meant by "merit." Is it the person's "intrinsic merit," or is it the sum total of the person's knowledge and ability, which frequently reflects the advantages the person has received in life, including for white persons, the advantages that come from being white instead of black in American society? Obviously it is the later. Second, and more importantly, "merit" relates to the needs of the institution or instrumentality making the selection and the purpose for which the selection is made. When a law school or medical school, for example, selects the most "meritorious" students on the basis of comparative objective academic indicator scores, it is selecting the students that it considers most likely to successfully complete the academic work at the highest level, and to the extent that there is a correlation between high level academic performance and successful practice of the profession-a much mooted point-the students most likely to be successful practitioners. The framework of "merit selection" then is determined by institutional and societal needs, and the individual is selected not because of the individuals' “intrinsic merit," but because of the individual's predicted ability to meet institutional and societal needs.

"Merit" then is a function of needs. We select those individuals who have the qualifications needed by the institution or the society to perform particular tasks. The fact that a person is more "qualified" than other persons will not result in the selection of that person if the person's qualifications will not meet the needs at hand. For example, if a baseball team has three outstanding second basemen, it is probably going to have to cut one from its roster, although the one cut is better than all of the pitchers that it keeps. Similarly, if all of the applicants for positions on a police force who have the highest test scores are white, and the police department needs black officers so that it can effectively perform the police function, selecting applicants solely on the basis of the highest test scores will not meet the needs of the police department. As regards those needs, a black applicant with a good test score has more "merit" than a white applicant with a better test score, because the selection of the black applicant will advance certain needs of the department that the selection of the white applicant will not. As this example indicates, since "merit" is a function of needs, and since there is a strong societal interest in the equal participation of blacks in all as aspects of American life, affirmative action is fully consistent with the principle that, "each individual should be judged on his or her own merit."

The third false issue is the matter of "quotas." There are some who say that they are not opposed to affirmative action generally, but do object when affirmative action takes the form of a fixed proportion of benefits going to blacks, e.g., the 10 percent set aside in Fullilove, because then it is a 'qouta," and "quotas" are undesirable. The term, "quota" does conjure up emotional reactions, because in the past maximum "quotas" were used to limit the opportunities of certain ethnic groups such as Jews. But the "quotas" involved in affirmative action programs, which are designed to provide a minimum porportion of the benefits for blacks, distinguish only between blacks and whites and do not limit the opportunities of any particular ethnic group or of any particular segment of the white population. As stated previously, the equal participation objective contains no notion of "proportionality," and no notion that any group should be limited in its opportunities. There would be no justification, for example, for limiting Jews or Italians or any group to a specified proportion of the available places in medical school or law school, and there is no correlation whatsoever between insuring the equal participation of blacks and limiting the opportunities of any particular group or any particular segment of the white population.

In addition, from a constitutional standpoint, the use of race-conscious criteria favoring blacks must be "reasonable in the circumstances presented. As Justice Powell put it in Bakke, the use of race-conscious criteria must be "precisely tailored to serve a compelling governmental interest." It is concepts of "reasonableness" and "precise tailoring" that adequately protect the interests of whites as a group whenever race-conscious criteria favoring blacks are employed. Whether the particular use of race-conscious criteria takes the form of a "quota" is in no way determinative of the question of whether or not it is reasonable, and in Fullilove for example, the Supreme Court found that it was fully reasonable for Congress to impose a 10 percent set aside for minority business enterprises. So, once we get over the emotional reaction conjured up by the term, "quota," we see that the matter of "quotas" is a false issue in regard to the validity of affirmative action programs.

In summary, the primary justification for racial affirmative action, for the use of race-conscious criteria favoring blacks, is that it is necessary and proper to insure the full and equal participation of blacks in all aspects of American life. Blacks have a moral right to such participation and to racial equality in American society,

and there is a strong public interest in having the full and equal participation of blacks. Racial affirmative action, it is therefore submitted, will bring about a better society for all of us.

I will not discuss the justification for affirmative action favoring other "nonwhite" groups and favoring women. The social history of racism also has an adverse impact on other groups such as native-Americans and hispanics, who like blacks, have been subject to discrimination and victimization because the dominant majority has perceived of them as "non-white." The victimization of native-Americans paralleled the victimization of blacks, and was rooted in the same belief of "moral inferiority." Hispanics, because they too were perceived of as "non-white," shared in the racial victimization of blacks. As the Supreme Court has pointed out, "one of the things which the Hispanic has in common with the Negro is economic and cultural deprivation and discrimination." Today, neither native-Americans, nor hispanics, who now comprise about 6 percent of our population and are the second largest minority, are full and equal participants in American society. The same kind of consequences that are suffered by blacks as a group because of the social history of racism are suffered by native-Americans and hispanics as a group, and there is the same need to insure the full and equal participation of native-Americans and hispanics in all aspects of American life.

As stated previously, the equal participation objective is not based on any notions of "reparations" or "proportionality." It is based on the absence of full and equal participation in American society because of the present consequences of past discrimination. Since Asian-Americans as a group, despite past discrimination against them, now do have a "fair share" of societal power and participation, affirmative action favoring Asian-Americans cannot be justified as being necessary to advance the equal participation objective.

It is a legitimate criticism of some affirmative action programs that they include all nonwhite groups such as Asian-Americans, and even immigrant groups such as Vietnamese, without regard to whether or not those groups, as a result of past discrimination and victimization, presently lack full and equal participation in American society. The equal participation objective, as I have developed it, justifies affirmative action favoring blacks, hispanics and native-Americans. But since it is not designed to bring about "ethnic proportionality" or anything of that sort, it does not justify the extension of affirmative action beyond those groups.

The justification for affirmative action favoring women is related to the justification for affirmative action favoring blacks; it is necessary at the present time to bring about the full and equal participation of women in all aspects of American life. Just as there has been a social history of racism in this nation, there has been a social history of sexism. While the social history of sexism was not predicated on a belief in the moral inferiority of women, and while the discrimination and victimization of women was not overly brutal and was tempered by family and marital intimacy, it existed nonetheless. It was rooted in notions of male supremacy and female dependency, and women suffered discrimination whenever they sought to break out of the dependency role. The primary consequences of the social history of sexism has been the societal subordination of women as a group. Women as a group do not share societal power equally with men, and realistically do not exercise societal power to any significant degree. It is still, as they say, "a man's world," and we still hear about "the first women to *

On the other hand, all of the consequences of the social history of racism do not track those of the social history of sexism. Women as a group obviously do not grow up in poverty, nor is their an "educational gap" between men and women. Women, who have received the same quality of education as a group as have men, perform academically as well as men and can compete equally with men for positions where selection is based on academic achievement or test performance.

There is, however, a great economic gap between working women and working men, just as there is between blacks and whites. The income of working women is about 60 percent of the income of working men, the same income disparity that exists between blacks and whites. Women are disproportionately concentrated in the service and "pink collar" jobs, and are seriously underrepresented in the "power" professions. A lot of this is due to past "channeling," where women have been "channeled" into "women's jobs," while men have been "channeled" into "men's jobs." Since there is a significant income disparity between working women and working men, for many working women, just as for full-time homemakers, their economic status and standard of living depends on their ties to a man.

Certain problems that women face today, which are directly traceable to the social history of sexism and to the historic dependency role of women, do not lend themselves to solution in terms of affirmative action, that is, in terms of the use of gender-conscious criteria favoring women. For example, in most American house

holds, notwithstanding the great influx of women into the labor force, women still assume the primary childbearing and homemaking responsibilities. The need to combine childrearing and homemaking responsibilities is even more acute for the ever-increasing number of women who are single parents. Thus, questions relating to the provision of day care facilities, flexible working time, employment leave and the like, are of crucial importance to women, but are necessarily beyond the scope of affirmative action as that concept has traditionally been understood. The same is true for the problems of the dependent wife in the marriage relationship. Many of the problems faced by women in American society today then are not problems that can be dealt with in terms of affirmative action.

From another perspective, affirmative action is not necessary in some areas because of the differing consequences of the social history of sexism in comparison to the consequences of the social history of racism. Since there is no educational gap between women as a group and men as a group, the elimination of overt discrimination against women will enable women to compete equally with men for positions that depend on educational achievement or other "objective qualifications."

This point is illustrated by the dramatic increase in the proportion of women in law school and medical school today and as a result in the proportion of women lawyers and doctors. Today, at most law schools women make up between 20 percent and 40 percent of the entering class, with the average being close to onethird, and at some schools it is approaching half. At some point in time, as "channeling" diminishes, it is reasonable to assume that half of the law students will be women. A similar change has occurred in medical school enrollment and may be expected to continue.

Just as women possess equal qualifications with men in regard to professional school admission, they possess equal qualifications for jobs in the labor market generally. Title VII of the Civil Rights Act of 1964 has effected a significant improvement in women's access to jobs, at least from a legal standpoint. The statute invalidates non-job-related requirements, such as height and weight restrictions, that disproportinately exclude women, and its "bona fide occupational qualification" exception has been interpreted fairly narrowly. If enforced fully and effectively, the statute can help to bring about gender-based equality in the workplace.

There are two important reasons, however, why affirmative action favoring women is necessary at the present time to insure true gender-based equality and the full and equal participation of women in all aspects of American life. First, in the employment area, both as regards the "prestige" jobs and the other traditional "men's jobs,” affirmative action, in the sense of requiring that the proportion of women in the particular employer's workforce bear some reasonable proportion to the proportion of women in the relevant labor market, is necessary as a prophylactic measure to prevent what may be called "institutional sex discrimination." While there seems to be general acceptance of the principle that there should not be overt racial discrimination in employment, there is still a lot of resistance, conscious and unconscious, to the idea that women should be employed in traditional "men's jobs." This is true at all levels and in all kinds of employment, e.g., on the assembly line and in academic departments. No matter how vigorously Title VII similar state laws are enforced, this "institutional sex discrimination" often will be hard to overcome. In this regard affirmative action will complement Title VII and will insure that in practice women will have the same employment opportunities as men.

Second, affirmative action is necessary to accelerate the full and equal participation of women in all aspects of American life and the sharing of societal power between men and women. Gender-based equality is a concept that has come into being only in the last decade or so, and women today do not have a meaningful share of societal power in any respect. They are not adequately represented in the upper or even the middle levels of corporate management, or in the government, or in most societal institutions. They are not adequately represented in the more "prestige" jobs, and in fact are not adequately represented in the "better" jobs within any field.

The same societal benefits that will accrue from the equal participation of blacks will accrue from the full and equal participation of women, and affirmative action is necessary to accelerate such participation. Consider, for example, the equal participation of women in the functions of government. There is a "women's perspective" that comes from the "experience of being a woman in American society" and from a sensitivity to the kinds of problems that women face in that society. The substantial involvement of women in the governmental function will insure that the government will be aware of the problems of women and will have the benefit of the "women's perspective." It will also help to bring about confidence on the part of women in the institutions of government. Above all, it will demonstrate a societal commitment to gender-based quality, made visible by the full and equal participa

tion of women in the governance of that society. The same is true in regard to the full and equal participation of women in corporate management and in the administration of societal institutions.

The movement of women into the "better jobs" and away from the concentration in the "service" and "pink collar" fields will result in reducing the income gap betwen men and women. There is a strong societal interest in reducing that income gap. To the extent that women have true economic equality with men, women will be less dependent on men, and the host of problems associated with the "dependent wife" will be alleviated. In addition, with the sharp increase in the number of families headed by women, there is a societal interest in improving the earning capability of women so as to improve the economic well-being of those families. Gender-based equality, like racial equality, should be an important goal of American society today, and affirmative action is necessary at the present time to bring about true-gender based equality in that society.

In conclusion, I would submit that at this point in time, this Nation must come to grips with the present consequences of a long and tragic social history of racism and a similar social history of sexism. As a result of this tragic legacy, blacks and women are not full and equal participants in American society. Affirmative action is necessary to bring about true equality and a truly just society. It must be continued and strengthened.

I have appended some of my writings on the subject of affirmative action to this testimony. Thank you for the opportunity to appear before the Subcommittee.