1242 WAYNE LAW REVIEW [Vol. 26 payments during times of economic depression." It can require consumers to pay higher prices for the benefit of producers." It can do all of these things, because the benefit that one individual receives at the expense of another individual is deemed to advance societal interests. The government can also give preference to particular individuals over other individuals when it is allocating governmental benefits, on the ground that by so doing it is advancing societal interests. It can give preference in civil service employment to veterans over nonveterans, including those who were not eligible to serve in the armed forces." It can give preference in admission to publicly-supported universities to athletes and give them special scholarships because their skills are useful to the university's athletic programs." It can make classifications in regard to entitlement to welfare benefits that have the effect of denying the benefit to otherwise deserving persons, because the classification avoids the necessity of individual determinations, thus saving costs and making more funds available to other persons eligible for the benefit." Again, the preference for some individuals over other individuals is justified in terms of the advancement of societal interests. In all of these instances there is an element of unfairness. As regards veterans preference, for example, while some veterans may have suffered detriment because of their military service," this is not true of all veterans. Indeed, some veterans may have acquired marketable skills in military service that they would not have acquired in civilian life, and they receive a "double benefit" when those marketable skills and their veteran's status result in their receiving a civil service position. Until recently, no more than 2% of the members of the armed forces could be women, so most women could not acquire veteran status. Even though a woman may be "more qualified" for a civil service position in terms of "objective merit," she may lose out to the veteran. But while the veterans preference may be unfair, it is not unjustifiable. It is not unjustifiable because the legislature has determined that veteran's preference in the civil service 71. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934). 72. Nebbia v. New York, 291 U.S. 502 (1934). 73. Koelfgen v. Jackson, 355 F. Supp. 243 (D. Minn. 1972), aff'd mem., 410 U.S. 976 (1973). Cf. Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979) (preference statute upheld against equal protection claim of sex discrimination). 74. See Justice Blackmun's discussion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 404 (1978). 75. Weinberger v. Salfi, 422 U.S. 749 (1975). 76. This has been the primary rationale relied on by the courts to sustain the constitutionality of veterans preference. See Branch v. Dubois, 418 F. Supp. 1128, 1130 (N.D. III. 1976); Feinerman v. Jones, 356 F. Supp. 252, 260 (M.D. Pa. 1973); Koelfgen v. Jackson, 355 F. Supp. 243, 251-52 (D. Minn. 1972). 1980] RACIAL PREFERENCE AND THE CONSTITUTION 1243 advances an important societal interest, and that determination is a reasonable one." There is unfairness in requiring owners of cedar trees to sacrifice their trees for the benefit of apple tree owners, but it is justifiable to require them to make this sacrifice because the legislature has concluded that society's interest is better served by protecting the apple trees. It is unfair to deny new enterprises the opportunity to compete against established enterprises, but again denial of the opportunity is justifiable because the legislature has concluded that further competition would not be in the public interest. It is unfair to deny welfare benefits to claimants who could establish their entitlement to the benefit if an individualized determination was made, but the societal interest is deemed better served by denying them the benefit to avoid the costs of individual determinations and make more funds available to pay benefits to other claimants. In all of these instances it is unfair, but it is not unjustifiable. It is not unjustifiable because societal interests are advanced by preferring some individuals and groups over other individuals and groups. And because it is not unjustifiable, it is not unconstitutional. The principle that the societal interest may require that particular individuals receive benefits at the expense of other individuals is no less applicable where the societal interest advanced by the giving of the preference is a racial interest and the preference is a racial one. It may be contended that there is a significant difference between preferring apple tree owners over cedar tree owners and preferring black applicants to medical school over white applicants to medical school, because the former situation involves economic and societal legislation subject to "minimal scrutiny" under the "rational basis" test, while the latter situation involves a racial classification which is "suspect" and subject to "strict scrutiny." But this difference has no relevance to the point in issue. "Strict scrutiny" relates to the degree with which the Court scrutinizes the justification for the racial classification and the validity of the asserted governmental interest, and the appropriateness of the racial classification as a means of advancing the interest. As Justice Powell explained "strict scrutiny" in Bakke: "When they [classifications] touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest."78 As Bakke makes clear, however, there is no question that when the racial classification, or more accurately, the racial preference, is 77. It is reasonable because the legislature has some degree of discretion in making classifications with respect to governmental benefits, and can conclude that the majority of veterans have suffered detriment because of their military service. 78. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978) (Powell, J.). 84-280 0-83-4 1244 WAYNE LAW REVIEW [Vol. 26 "precisely tailored to serve a compelling governmental interest," an individual can be asked to bear the burden resulting from that preference. Thus, in Bakke, when Justice Powell, joined on this point by the Brennan group," held that the medical school had a valid interest in achieving an "educationally diverse" student body, so that it could give "competitive consideration to race and ethnic origin" in determining admission to the medical school, 80 he necessarily held that this interest could be advanced at the expense of those white applicants who were excluded from the medical school as a result."1 This is but an application in the racial preference context of the general constitutional principle that the societal interest may require that particular individuals receive benefits at the expense of other individuals. 82 It is clear, therefore, that if the societal interest in achieving the equal participation objective is found to be valid and substantial, the use of racial preference to advance the interest is constitutional, notwithstanding that it causes racial detriment to particular white individuals. V. THE SOCIETAL INTEREST IN THE EQUAL PROTECTION OBJECTIVE When talking about the societal interest in the equal participation objective, I am not concerned with whether the government has a valid and substantial interest in providing equal participation for blacks so that blacks can obtain benefits from such participation. 83 79. Id. 311-15 (Powell, J.); id. 326 n.1 (Brennan, J., concurring in part, dissenting in part). 80. Id. 320 (Powell, J.). 81. See Sedler, Beyond Bakke, supra note 6, at 164-65. 82. See the discussion of this point in regard to the set-off for minority business enterprises in Fullilove. 48 U.S.L.W. at 4989. By the same token, the government could give racial preference to whites where this would advance a valid and substantial governmental interest by appropriate means. A state university, with a predominantly black student body, in order to advance its interest in achieving a racially diverse stu dent body, could give the kind of racial preference to white applicants that the medi cal school in Bakke was permitted to give to black applicants. Or, a public housing authority could assign persons to its housing on a racial basis in order to insure that all sites would be racially integrated, even if there were more blacks than whites on the waiting list so that some whites would obtain public housing sooner in preference to some blacks. See Otero v. New York Hous. Auth., 484 F.2d 1122 (2d Cir. 1973). 83. It was this theme that I developed in Beyond Bakke. As I started there: Sedler, Beyond Bakke, supra note 6, at 170-71. I am not qualifying my position in any way by maintaining that in addition there is a strong societal interest in the equal participation objective. Nonetheless, the focus on the societal interest rather than on the interest of blacks may tend to perpetuate the 1980] RACIAL PREFERENCE AND THE CONSTITUTION 1245 The societal interest to which I am referring is the interest of the society itself in the benefits that result from the equal participation of blacks in any or all aspects of American life. Although the Court in Bakke did not deal directly with the equal participation objective, it did deal directly with the matter of the societal interest, and it is the societal interest that is the basis of Justice Powell's conclusion that the medical school could use race-conscious admissions criteria in order to achieve an "educationally diverse" student body. As Professor Dixon has observed: Justice Powell's diversity idea is based on an interest of the institution— that is, an enterprise interest in an enriched educational atmosphere- rather than on an interest held by the represented minority group. This seems to be Justice Powell's view, despite the fact that the represented groups are the immediate beneficiaries of the policy, and the proximate cause of the hypothesized enrichment.85 This is precisely the point that I want to make about the societal interest in the equal participation objective. The focus is on the societal interest that is advanced by having the equal participation of blacks in various aspects of American life. Just as the university in Bakke could assert its own institutional interest to support the use of race-conscious admissions criteria, other agencies of government can assert both their particular institutional interest and the interest of the society they serve in having the equal participation of blacks, so as to justify their use of racial preference in the circumstances presented. This points up the distinction between the societal interest in the equal participation objective that I am discussing in the present writing and the group interest of blacks in the equal participation objective that I discussed in earlier writings. 86 Justice Powell's opinion in Bakke also gives some insights, perhaps unintended, on precisely why there is a societal interest in the equal participation of blacks in the various aspects of American life. Although purportedly applying a standard of "strict scrutiny," Justice Powell appeared to be giving considerable deference to the university's contention that it had a valid and substantial interest in achieving an "educationally diverse" student body, so as to justify regrettable process of viewing "affirmative action" with reference to "white interests" and from a "white perspective." See Bell, supra note 40, at 3-9. 84. This necessarily involves racial preference in that it enables particular blacks to be admitted in preference to particular whites who would have been admitted if race-conscious admissions criteria had not been used. 85. Dixon, supra note 23, at 75-76. 86. There is a valid and substantial governmental interest in providing equal participation for blacks. See note 83 supra. 1246 WAYNE LAW REVIEW [Vol. 26 the use of race-conscious admissions criteria. 87 Justice Powell stated that, "[t]he atmosphere of 'speculation, experiment and creation'-so widely essential to the quality of higher education-is widely believed to be promoted by a diverse student body" and concluded that, "[i]n this light, petitioner must be viewed as seeking to achieve the goal that is of paramount importance in the fulfillment of its mission." But there is very little discussion about racial diversity as such in the opinion, and Justice Powell does not explicate why race as such contributes in a major way to educational diversity. 89 The answer may be that this is so obvious that he considered extended discussion of the point to be unnecessary. Such an explanation is fortified by his reference to the Harvard College Admission Program, in which it is simply stated that, "[a] black student can usually bring something that a white person cannot offer."90 The reason why this is so relates to the perspective that comes from "the experience of being black in America." Professor Blasi has contended that, "[i]t is difficult to maintain that there is any one trait that compares with race in terms of the likely contribution of persons who possess the trait to the goal of diversifying," and that, "most educational institutions can rightly regard racial homogeneity as by far the greatest threat to the goal of a truly diverse educational environment."91 Professor Blasi relates the contribution of blacks to "educational diversity" because of their race by having gone through the "black experience" in American society, and concludes that, "membership in a minority race can be viewed as a good proxy for several personal characteristics that may be important in the learning process. "92 At a minimum, blacks can tell to others first hand 87. See the very penetrating analysis of Justice Powell's "two opinions" in Bakke, in Karst & Horowitz, The Bakke Opinions and Equal Protection Doctrine, 14 HARV. C.R.-C.L. L. REV. 7, 7-20 (1979). As they note, justice Powell's scrutiny of the university's "educational diversity" claim "is far from exacting." Id. 12. 88. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312-13 (1978) (Powell, J.). See the discussion of this statement in relation to "strict scrutiny" in Karst & Horowitz, supra note 87, at 12-13. 89. He refers to race or ethnic origin as a "single though important element" in achieving "educational diversity." Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978) (Powell, J.). 90. Id. 316. 91. Blasi, Bakke as Precedent: Does Mr. Justice Powell Have a Theory? 67 CALIF. L. REV. 21, 43, 45 (1979). 92. Id. 44. As he states: |