1980] RACIAL PREFERENCE AND THE CONSTITUTION 1257 was this problem that Title VII's prohibition against racial As the above discussion indicates, racial economic inequality, in all its manifestations, is a "serious social problem," and "integration of blacks into the mainstream of American society" cannot be achieved until race is no longer associated with low-income status and until there is no longer racial economic inequality in American life. Racial economic inequality is perhaps the most enduring and persistent consequence of the social history of racism, 136 and it can only be ended by making structural changes in economic activity to increase black participation in that activity and bring about equal participation of blacks in the economic system. 137 There is a strong societal interest in ending the racial economic inequality that exists in today's American society which should render constitutional governmental efforts to bring about equal participation of blacks in the economic system. 138 It is my submission, therefore, that there is a strong societal interest in bringing about equal participation of blacks in a number of important aspects of American life: the institutions of government, the "power professions," and the economic system. The use of racial preference to advance the equal participation objective, therefore, advances a valid and substantial governmental interest and should be held to be constitutional, 139 135. United Steelworkers of America v. Weber. 443 U.S. at 202-03 (citations omitted). 136. Black family income, for example, has never exceeded 60% of white family income, Sedler, Beyond Bakke, supra note 6, at 139, and the other indicators of economic inequality have likewise persisted over the years. See generally U.S. Comm. ON CIVIL RIGHTS, SOCIAL INDICATORS OF EQUALTY FOR MINORITIES AND WOMEN (1978). 137. This point was emphasized in the debates over the minority business enterprise set aside. According to Representative Mitchell: "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." 123 CONG. REC. H. 1437 (daily ed. Feb. 24, 1977) (statement of Representative Mitchell). As Representative Biaggi concluded: "This amendment will go a long way toward helping to achieve [economic] parity and more impor tantly to promote a sense of economic equality in this Nation." Id. (statement of Representative Biaggi). 138. Because these efforts adversely impact upon the economic interests of individual whites, the courts will carefully scrutinize the appropriateness of the means used. But the key to appropriateness is the reasonableness of the preference, and a reasonable racial ratio, such as the 50-50 ratio involved in Weber, which is intended to "eliminate a manifest racial imbalance," United Steelworkers of America v. Weber, 443 U.S. at 208, or the 10% set aside involved in Fullilove, clearly satisfies this test. Fullilove v. Klutznick, 48 U.S.L. W. at 4889-90 (Burger, C.J.), 4997 (Powell, J.), 4999 (Marshall, J.). 139. Since Fullilove v. Klutznick, 48 U.S.L. W. 4979 (1980), was decided after this article had gone to press, there was no opportunity to incorporate a discussion of the 1258 WAYNE LAW REVIEW VI. CONCLUSION [Vol. 26 In this writing, I have considered the constitutionality of racial preference in light of the societal interest in the equal participation objective. In the final analysis, the societal interest is an interest in bringing about equal participation of blacks in all aspects of American life, in getting the consequences of the social history of racism behind us, once and for all, 140 in ending the existence of "two societies, black case in the body of the article. By a vote of 6-3, the Court upheld the constitutionality of the 10% minority business enterprise "set aside." There was no majority opinion. Chief Justice Burger wrote an opinion joined in by Justices White and Powell. Justice Powell also wrote a separate opinion. Justice Marshall wrote an opinion, joined in by Justices Brennan and Blackmun. Justice Stewart, joined by Justice Rehnquist, dissented, and Justice Stevens dissented separately. The remedying of past discrimination was the essential basis of the opinions upholding the constitutionality of the "set aside." Chief Justice Burger saw the "set aside" as representing the determination of Congress, acting pursuant to its spending power and to its power under Section 5 of the Fourteenth Amendment, that grantees of federal funds would not employ procurement practices that might result in "perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities." 48 U.S.L.W. at 4986. Justice Powell contended that deference had to be given to the conclusion of Congress that "purposeful discrimination contributed significantly to the small percentage of federal contracting funds that minority business enterprises have received." 48 U.S.L.W. at 4995. Justice Marshall, while maintaining that his resolution of the issue in Fullilove was governed by his separate opinion in Bakke, also emphasized that "Congress had a sound basis for concluding that minority-owned construction enterprises, though capable, qualified, and ready and willing to work, have received a disproportionately small amount of public contracting business because of the continuing effects of past discrimination." 48 U.S.L. W. at 4999. Justices Stewart and Rehnquist in dissent argued that the government could never require that public works contracts be awarded on the basis of race. 48 U.S.L.W. at 5000-5001. Justice Stevens, while not going quite that far, maintained that Congress had failed to "demonstrate that its unique statutory preference is justified by a relevant characteristic that is shared by the members of the preferred class.” 48 U.S.L.W. at 5008. Because of the majority's emphasis on remedying past discrimination, there was no real consideration of the societal interest in the equal participation of blacks in the economic system. Fullilove may indicate that for the foreseeable future, “affirmative action" cases will be litigated (and "affirmative action" programs will be structured) within the framework of "remedying past discrimination" rather than with reference to the equal protection objective that has been the focus of this article. 140. As Justice Blackmun observed in Bakke: "In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot - we dare not - let the Equal Protection Clause (perpetrate racial supremacy." Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J.). Professor Van Alstyne argues to the contrary: Rather, one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one's own life- or in the life or practices of one's government - the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in life, whatever we may do in life, to treat any person less well than another or to favor any more than another for being black or 1980] RACIAL PREFERENCE AND THE CONSTITUTION 1259 and white, separate and unequal."141 The use of racial preference to achieve the equal participation objective, therefore, is in the societal interest, and since it is in the societal interest, it is constitutional. Whether viewed in terms of constitutional values, 142 or in terms of the societal interest in the equal participation objective, the use of racial preference to advance the equal participation objective is constituonal because it is related to achieving “genuine equality" between blacks and whites in American society.143 white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding. Van Alstyne, supra note 10, at 809-10. Given the present consequences of the social history of racism in this nation, however, Van Alstyne's view of a "Constitution universally worth expounding" would be a Constitution that reinforces white supremacy and black inferiority. As has so frequently happened in American society, see Bell, supra note 40, at 16, the costs of this "lofty" constitutional principle would be borne unmitigatedly by blacks, who for the remotely foreseeable future would be relegated to a condition of societal inferiority and denied equal participation in American life. I do not think that such a Constitution would be one "universally worth expounding." 141. See note 50 supra. 142. This was the approach that I took in my prior writings. See note 83 supra. 143. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 398 (1978) (Marshall, j. concurring in part, dissenting in part). 84-280 0-83-5 Senator HATCH. Dr. Abram, let us turn to you. Then we will turn to Dr. Kilson and then finally to Prof. Van Alstyne. TESTIMONY OF MORRIS B. ABRAM, ESQUIRE, NEW YORK, N.Y. Mr. ABRAM. Thank you, Mr. Chairman. I have a prepared statement which I have filed with the committee. Senator HATCH. We will insert your complete statement in the record as though fully delivered. We will be interested to hear whatever you have to say here this morning. Mr. ABRAM. Thank you. I would like to say, to begin with, something about where I come from and the angle from which I approach this issue. Since I was 17 years old, in rural Georgia, I have considered segregation and racial discrimination as repulsive to the traditions of my country and my faith. You have, in my biography, stated, I think clearly, the acts which affirm my long devotion to the civil rights movement. Senator HATCH. There is no question about that. Mr. ABRAM. I would like to say that for 14 years of my life-and I would never have left Georgia until that job was completed-I fought and eventually won in the Supreme Court of the United States with Bobby Kennedy arguing by my side the one-man, onevote decision which overturned the racially motivated county unit system in Georgia. I was one of the original founders of the Lawyers Committee for Civil Rights Under Law, to which I am going to refer in a moment, and I think I took the first litigated case of that distinguished group when I went down to Americus, Ga.-whilst Jimmy Carter, by the way, was the State senator-and freed five black and white kids-demonstrators in Martin Luther King's ranks who were being held without bail under a capital charge of an invalid law which claimed they were seditious. So, for half a century I have been engaged in this work, and I have not altered my faith since I enlisted in this cause in order to remove all distinctions based on race, religion, or sex. I enlisted in this cause to end white supremacy, and I might say that until 1965 the only person to argue for preferences based on race were white supremacists. The whole thrust of the white supremacist argument was that whites deserve-for whatever reason-preference. For 40 years, the standard under which we marched was the dissenting opinion in Plessy v. Ferguson by the first Mr. Justice Harlan who wanted, and was not able to obtain in that decision in 1896, a colorblind interpretation of the equal protection clause. Mr. Chairman, I am here today to say that we do not need a Constitution like an accordian to play the current political hit tune. Today, such a hit tune may be "We Shall Overcome," the anthem of a movement that I enlisted in, but tomorrow it can easily become the theme song of "The Birth of a Nation." I would like to call the subcommittee's attention to the extraordinarily pertinent words of Mr. Justice Jackson written in the Japanese exclusion cases that grew out of our sad history with respect to the racial discrimination against the Japanese. Speaking of a military order which applied only to Japanese of American ancestry, Mr. Justice Jackson warned: "Once a judicial opinion rationalizes such an order”—that is, a racial order-"or, rather, rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all times has validated the principle of racial discrimination. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim"-as Mr. Sedler just did-"of an urgent need." The entire civil rights movement, in which I enlisted in the 1950's, agreed with Mr. Justice Jackson. So did the distinguished Thurgood Marshall. Now there has been a reversal of direction, and it is now fashionable in some circles to argue as Mr. Sedler has. But this reversal has been gradual, and it has been insidious. It has amounted to what I now wish to discuss as the transmogrification of a laudible spirit of what was first known as affirmative action and which I supported, and apparently you do, too, Mr. Chairman. Senator HATCH. That is correct. Mr. ABRAM. I understood "affirmative action" to mean affirmative remedial efforts to identify those who had been left out of the race and to bring them up by education and other means, but without regard to what their race was, or their color was, or their gender. The purpose was to assist all to come to full fruition of their talents and to see that none was left in the closet and overlooked. But the test is not now that of equality of opportunity or affirmative action. The test now is equality of result. It has become, and it is undeniably now, a full-throttled program of quotas. I would like to give you the paradigmatic example. I recently testified before the U.S. Commission on Civil Rights. They had put out on the table a proposed affirmative action called-I wish you would get it, Mr. Chairman, and read it-"Affirmative Action in the 1980's." They speak of quotas, targets, goals, and preferential treatment, mixing them all up elusively as in a game of four card monte. It is all the same thing. It is a set-aside, a quota, it is racial discrimination and gender discrimination of which the target always is the white male, despite the fact he may be an Appalachian who has been, for generations, in ignorance and deprivation. Another example of what affirmative action has come to mean is a letter I received from a very distinguished lawyer on the staff of the Lawyers Committee for Civil Rights under Law, Mr. Richard Seymour, who was defending the action of the lawyers committee and the Government in entering that consent decree in the Leuvano v. Campbell case invalidating the PACE examination for 118 entry-level jobs in the Federal civil service. Listen to what Mr. Seymour, a distinguished lawyer, said to me in this letter. "For example," he said, "suppose that 100 whites and 100 blacks applied for 50 jobs." Now, this is in the Federal civil service. This happens to be those who examine your taxes, the curators of your museums, the claims examiners for the social security system. He continued: "If there were no adverse impact in |