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black and white." We are concerned with race, not with ethnicity. Blacks are not an "ethnic group" in American society." They are the historic "slave race" and the racial group against which the social history of racism has been directed. As Professor Perry has observed: "The material inequality of the races is the objective, concrete, manifestation of the past widespread American belief in the moral inequality of the races and of racially discriminatory practices reflecting that belief." The social history of racism clearly was predicated on a belief in the moral inferiority of blacks, a belief that was necessary to justify the institution of chattel slavery, and a belief that persisted to justify pervasive racial discrimination and victimization of blacks throughout American society.

This pervasive racial discrimination and vicitimization, relating to a belief in the moral inferiority of blacks, is qualitatively different from the kind of discrimination that has been practiced in times past against white ethnic groups in this nation. As was observed by the National Advisory Commission on Civil Disorders: "European immigrants too suffered from discrimination, but never was it so pervasive as the prejudice against color in America, which has formed a bar to advancement, unlike any other."55 While white supremacy and advantage may not be evenly distributed throughout all segments of the white population," it is the supremacy of whites as a group and the inequality of blacks as a group that has resulted from the social history of racism, and the equal participation objective is designed to remedy the condition of racial inequality. This being so, the legitimacy of advancing the equal participation objective and of achieving "genuine racial equality" in American society is not affected by the fact that in the past some segments of the white population have been subject to discrimination by dominant segments of that population and may not share to the same degree all the advantages that have come with being white in American society. 57

52. As to the inclusion of other non-white minorities in the legislative definition of "black," see note 6 supra.

53. Justice Powell appeared to assume this throughout his opinion in Bakke. 54. Perry, supra note 10, at 1040.

55.

REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 279 (Bantam ed. 1968). Similarly, as Justice Marshall observed in Bakke:

The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot.

438 U.S. at 400-01 (Marshall, J., concurring in part, dissenting in part).

56. See Justice Powell's discussion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 295-97 (1978).

57. Most persons probably still would agree that on balance, even with "affirmative action," it is better to be white than to be black in American society today.

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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 owes blacks "reparations" and must give blacks benefits now 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.5a In attacking the constitutionality of racial preference, Professor Dixon states that "there is the plea from many blacks for reparations in the form of a substantial approximation to ethnic proportionality in the allocation of scarce social goods," and contends that "a policy of ethnic proportionality that qualifies a person's equality of opportunity has no foundation in our individual-rights focused constitutional tradition."59 Regardless of the validity of Professor Dixon's attack on "reparations" and "proportionality," that attack cannot properly be mounted against the equal participation objective. The equal participation objective is not concerned with "reparations" for the past or with "proportionality," but with the absence of full participation of blacks as a group in all aspects of American life. It is concerned with the present consequences of the social history of racism that are felt by blacks as a group today. The equal participation objective 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 into the "mainstream of American life."60

The focus of the equal participation objective, then, is on the present consequences of past discrimination. If no present consequences remained, despite past discrimination, there would be no basis 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 there has been past discrimination against

58. What they are entitled to is a "degree of participation in American society roughly equal to that enjoyed by whites." Sedler, Beyond Bakke, supra note 6, at 157. Insofar as the legislative body determines the extent of the particular preference with reference to minority representation in the general population, this relates to an effort to make the preference a reasonable one, not to any notion of "proportionate entitlement."

59. Dixon, supra note 23, at 74 & discussion at 84-85.

60. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 396 (1978) (Marshall, J., concurring in part, dissenting in part) (emphasis added).

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Jews in America. Let us assume that if it had not been for such discrimination, Jews as a group would have a greater share of societal power than they now have; for example, that there would be more Jewish physicians and lawyers than there are now. But Jews as a have not been excluded from a "fair share" of societal power group and Jews as a group participate fully in all aspects of American life. There are, for example, quite a substantial number of Jewish physicians and lawyers. 62 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 racial preference for blacks could not be sustained on this basis. Similarly, although Asian-Americans have been subject to discrimination that can be characterized as "racial, "63 Asian-Americans as a group also appear to have a “fair share” of societal power and participation in relation to their representation among the general population, and preference for 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 is that the social history of racism has produced present consequences for blacks as a group, denying to blacks as a group equal participation in American society and relegating them to a condition of racial inequality.65

The Court in Bakke did not deal directly with the constitutionality of the use of racial preference to advance the equal participation objective. Both Justice Powell and Justice Brennan saw the issue as one of remedying "societal discrimination," and as we have said, framed the constitutional question in terms of a conflict between group rights and individual rights. Justice Marshall, however, emphasized the equal participation objective and related it to overcoming present consequences of the social history of racism. As he stated:

61.

Whether this in fact would be so depends on the time when the discrimination essentially ended.

62. On a personal note, when I was in law school, which was over 20 years ago, I did not feel conscious of being Jewish, since there were a number of other Jewish students in the class. There was not a single black student in the class.

63. See note 6 supra.

64. See the discussion in Greenawalt, supra note 6, at 120. In 1973, 13 Asians were admitted to the entering class at the Davis medical school through the general admissions process and only two were admitted through the special program, thus creating doubt that Asians as a class needed the preference." Id. 120 n.133. Preference for Asians generally, however, could be justified in order to advance the "educational diversity" objective.

65. As Professor Greenawalt points out, the Brennan opinion in Bakke requires a "combination of past discrimination and present disadvantage" in order to support racial preference as a means of redressing "societal discrimination." Greenawalt, supra note 6, at 115.

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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 . . .

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible. 66

As will be demonstrated subsequently, there is a strong societal interest in bringing blacks "into the mainstream of American life." It is my submission that the existence of that strong societal interest justifies the use of racial preference to advance the equal participation objective.

IV. RACIAL DETRIMENT AND SOCIETAL INTEREST

In the next section of the writing I will discuss the societal interest in the equal participation objective. When the equal participation objective is advanced by means of racial preference, however, this causes racial detriment to whites. By racial detriment I mean tangible detriment caused to particular white individuals by the preference given to blacks in the allocation of societal benefits. Racial detriment is suffered by the white applicant excluded from admission to a publicly-supported university because of preference for black applicants. It is suffered by the white denied public employment or promotion because of preference for blacks. It is suffered by the white entrepre neur who loses out on a public works contract because of preference given to black entrepreneurs. The question with which I am now concerned is whether the use of racial preference, which otherwise is found to advance a valid and substantial governmental interest, becomes unconstitutional because it causes racial detriment to particular white individuals. It is submitted that the answer is clearly in the negative.

It is a general principle of constitutional law that individuals may

66. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 396, 401-02 (Marshall, J., concurring in part, dissenting in part).

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be required to make sacrifices in the public interest, and the public interest may require that particular individual interests be preferred over other interests and that particular individuals receive benefits at the expense of other individuals. This general principle is applicable in a number of contexts. Perhaps the Court's strongest exposition of the principle occurred in Miller v. Schoene." There it sustained against a due process attack a state statute requiring the destruction of cedar trees found to be the host plant for cedar rust, where the cedar trees were located within two miles of an apple orchard. Cedar rust, although having no effect on cedar trees, could destroy apple trees within a two mile radius, and since apple-growing was a major industry in Virginia, the legislature decided to protect the apple trees at the expense of the cedar trees. In holding that this was constitutional, the Court stated:

. . . [t]he state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. It will not do to say that the case is merely one of a conflict of two private interests and that the misfortune of apple growers may not be shifted to the cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of the one interest over the other. And where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property."

68

The giving of benefits to particular individuals and groups at the expense of other individuals and groups on the ground that societal interests are advanced thereby appears in much economic and social regulation. The government can create a monopoly in favor of a particular enterprise or individual.69 It can prohibit new entrants into a business activity, thereby favoring established enterprises, on the ground that further competition would be "detrimental to public interest."70 It can favor the financial interests of debtors over the financial interests of creditors by declaring a moratorium on mortgage

67. 276 U.S. 272 (1928).

68. Id. 279-80 (citations omitted).

69.

Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552 (1947); The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).

70. "Lochner era" cases holding to the contrary, such as New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), and Louis K. Leggett Co. v. Baldridge, 278 U.S. 105 (1928), have been overruled. North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156 (1973).