preted in case after case and which I proudly supported and still support.

Thank you.

Senator HATCH. Thank you, Dr. Abram. Without objection, we will include your prepared text at this point.

[The prepared statement of Dr. Abram follows:]

PREPARED STATEMENT OF MORRIS B. ABRAM

Ever since I was 17 years old and living in rural Georgia, I have considered segregation and racial discrimination repulsive to the traditions of my country and my faith.

I am proud of my length devotion to civil rights for each and everyone of this country's citizens and I yield to no one in my desire to have equality of opportunity become inextricably woven into the fabric of our national life.

I fought the racially motivated country unit system in Georgia for 14 long years until I finally prevailed in the Supreme Court in the one-man, one vote case (Sanders v. Gray).

President Johnson appointed William T. Coleman and me the co-chairmen of the Planning Conference for the White House Conference on Civil Rights in 1965. I served as the U.S. Representative to the United Nations Commission on Human Rights, and was one of the principal authors of the United States Convention for the Elimination of All Forms of Racial Discrimination. I have also served as Chairman of the United Negro College Fund.

In addition, President Johnson offered me the opportunity to become the first Chairman of the Equal Employment Opportunity Commission.

In 1963, I litigated the first major case for the Lawyers' Committee for Civil Rights Under Law in Americus, Georgia, to free five followers of Martin Luther King, Jr. held without bail under an invalid sedition law.

In sum, for half a century I have not altered my faith and support of the principle of equality of all men and the rights of all citizens to equal treatment regardless of race, creed, color or sex.

It follows then that I oppose any preference based on any of those distinctions. The civil rights movement itself has historically and invariably regarded such preferences as invidious, odious and intolerable. Indeed, in the 1950's-and until the mid-1960's-the only persons insisting on racial preferences were white supremacists. The very hallmark of white supremacy was to maintain by law preferences for the white race. Its legal theorists successfully defended the cornerstone of this system under the equal but separate doctrine which was not finally overturned until Brown v. Topeka in 1954. Those who today advocate racial preferences for minorities are treading on old and dangerous political ground, wading into murky ethical swamps and traducing the constitutional principles which guard us all in our marvelously hetergenous and wonderfully volatile society. They are today struggling to overturn the very principle that the law must be blind to distinctions based on race, creed, color or sex, which from 1896 (the date of Plessy v. Ferguson) until 1954 they fought to establish.

The last thing needed in America is a constitution which expands and contracts as an accordion to play the current political hit tune. Today it may be "We Shall Overcome;" tomorrow it may be the theme song of the Birth of the Nation. Justice Robert Jackson, in the Japanese exclusions cases, put the matter most eloquently as he railed against the 1941 military order which operated exclusively against citizens of Japanese ancestry: “Once a judicial opinion rationalizes such an order or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time 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 of an urgent need."

Despite the fact that the very heart of the civil rights movement was consecrated to the riddance of color preference and in behalf of a color blind interpretation of the Constitution-a cause urged upon the country and the court by no less a figure than Justice Thurgood Marshall in 1952-53-that "movement" now pushes for the very opposite. The reversal of direction has been gradual and insidious. Laudable purposes have been cloaked in innocuous phrases such as "affirmative action"-a program which had and has my support when presented as an effort to seek out, train and educate (often by remedial means) persons qualified but overlooked. Gradually the strategists of the movement inched up notch after notch and affirmative action has come to mean goals and timetables as indices not to test equality of

opportunity but rather to enforce equality of result. The laudable goal of affirmative action has been skewed into a full throttled program of quotas by whatever name. Examples of this sorrowful transformance abound. This is nowhere better illustrated than in the Affirmative Action Proposal of the United States Commission on Civil Rights, entitled "Affirmative Action in the 1980's: Dismantling the Process of Discrimination." In that proposal, drafted by the governmental organization established in 1957 at the behest of people such as myself, the words "quotas," "targets," "goals," and "preferential treatment" are used elusively as in a game of four-card monte. Henceafter I shall call Affirmative Action Plans by the name into which they have been transmogrified: "Preferential Treatment Plans."

The philosophy of the Civil Rights Commission proposal is the same as that expressed in a letter to me dated February 13, 1981, from Richard Seymour of the staff of the Lawyers' Committee for Civil Rights Under Law as a representative of the plaintiffs in Leuvano v. Campbell. Attacking PACE, the qualifying examination for 118 intra-level positions in the federal civil service merit system, and defending a preferential action consent decree which would have required racial-quota hiring, he wrote:

"For example, suppose that 100 whites and 100 blacks applied for 50 jobs. If there were no adverse impact in the examining procedure used to select for these jobs, one would expect to see 25 blacks and 25 whites hired. Under the 80 percent test used by the Consent Decree, it would be a matter of indifference if 27 whites and only 23 blacks were hired."

We all know that those applicants who merit selection for any given administrative or professional job do not come proportionately qualified by race, gender and ethnic origin in accordance with U.S. population statistics. Yet those who want to believe otherwise find it impossible to accept as valid any selection procedure which does not result in a one-to-one match between the race, gender and ethnic composition of the applicant pool and the candidates selected. This, I fear, is the underlying philosophy of what "affirmative action" has come to mean-a presumption that, for every opportunity in life, the meritorious candidates selected must necessarily include minority applicants in their proportionate numbers, and that a test or admission practice based upon merit which does not confirm this presumption is therefore suspect, however neutral and relevant, must overcome the presumption.

The underlying principle of a Preferential Treatment Plan is that group rights (leaving aside the question of how the group should be defined) are more important than individual rights. That is, that everyone is to be treated as a group member, not as an individual with distinctive abilities, interests and character, and that individual merit is to count for little or nothing as compared to one's gender or the color of one's skin.

Given that principle, preferential treatment for a minority, especially when that minority has unquestionably suffered egregiously from past discrimination, seems on its surface to be appealing. Why should not those who have suffered long a pervasive discrimination, the effects of which still persist, be given some form of compensation? But the idea becomes less and less appealing under rigorous analysis and eventually it is appalling. Consider, for example, the case of the Georgia black voter. My native state had denied black voters the precious civil rights of franchise from the adoption of the Thirteenth Amendment until the middle 1930's. The effects of this deprivation endure. Then why should Georgia not restrict white registration until blacks are proportionately enrolled or place whites on hold at the polling places at every election until blacks have turned out in exact proportion to their appearance in the local population?

Next, let us not forget that America has had many different victims of discrimination beginning with its native Indians. To the ranks of those who have suffered in varying degrees must be added blacks, Chicanos, Chinese, scores of ethnics, Catholics, Jews and women. To measure discrimination by creating broad classifications of those who may ever have been affected by it is impossible, and to compensate for it by individual allocation of advantages and burdens becomes ridiculous. Those who suffered most from discrimination may have long departed and the most egregious oppressors with them. More importantly, within each of the protected minority groups which the EEOC classifies as "Black of non-Hispanic origin," "Hispanic," 'Asian or Pacific Islanders," and "American Indian or Alaskan Native," are subgroups with different experiences of oppression. Do blacks of British West Indian origin suffer the same discrimination as American blacks? Are Japanese "Asians" in the group of persons to be protected from present disadvantage, and on what premise? Are Hispanics of Argentine origin to be given the same preferential treatment as Puerto Ricans? How much blood is required for admission to or exclusion from the preferred caste?

Second, the EEOC's broad categories of minorities to be afforded special protection, on which many of the premises of Preferential Treatment rest, simply will not stand up under even the most gentle examination.

The 1970 census figures demonstrate that the mean income of employed persons varied as much by subgroups within the "protected minority" classifications as the comparative figures for these classifications varied in comparison with the total U.S. population, whose median annual family income was then $10,678. West Indian black families here earned almost as much, $9,821, though black American families earned a meager $6,821. In the face of these facts, should we prefer all blacks equally? Are Puerto Ricans, whose average family income was $6,728, to be preferred over American Indians whose family income was even lower? And if Hispanics in general are to be advantaged, should we include professionals of Castilian origin?

Under the protection and advantages to be conferred on "Asians" do we include Chinese Americans whose family income of $12,176 is well above the national average, or Japanese here who enjoy, I believe, an extraordinarily high family income for any group in America? And where do the Italian Catholics fit, who may rightfully point to the massive discrimination against them enshrined for generations even in the immigration laws; or the Poles, who suffer even today from persistent ethnic slurs?

Such a concept of Preferential Treatment, if enforced as national policy across the board, would thus recast the nature of American society. Groups would be assigned proportions of opportunities in the most bizzare manner. After allocating perhaps 20 percent of such opportunities to blacks and "Hispanics," 2 percent to American Indians, 5 percent to "Asians," 20-30 percent to those of various kinds of European ethnic origin, and varying percentages for others of differing religious or ethnic origin who have legitimate claims of unequal treatment, and making sure that assigned opportunities within these groups are divided equally between men and women, the whole may not be equal to the sum of the parts. The stage would be set for a vast resentful confrontation between people of differing race and ethnic origin. Any group-oriented proposal must fail to fit the problems of our society because it is comprised of individuals, not groups. Any attempt to categorize by group is doomed to failure because there is often greater diversity within any group than between groups.

For example, gross income figures, when broken down, show that if discrimination is measured by income, it is not equally pervasive within any one group. For example, educated black women earn more than their white female counterparts and the gap between all black and white family groupings is closing, except in "the exploding number of black female-headed families" over which poverty hovers, as the black Chairman of the University of Chicago's Sociology Department, Professor William J. Wilson, has noted. In this category, family income is about one-third that of black households headed by a male. Thus, within the black community (leaving aside any comparison with the white) there is a vast disparity in the incomes of black families. Homes without an adult male head have grown from 23.2 percent of all black families in 1962 to 40.5 percent in 1979. It is the woefully meager incomes of these families that is skewing the median black family income average and preventing the closing of the 40 percent disparity between black and white families as a whole.

Moreover, no "affirmative action" proposal to date has taken into consideration the nigh hopeless condition of our uneducated and unemployable urban underclass, whether black, white, male, female. We ignore these growing numbers at our peril, but their problems are not touched by scrapping the Federal Merit System Examination or other such "achievements" under Title VII. Nor by the extraordinary racially biased State Department regulation set forth in 1980 which waives the written examination for minority candidates and sets up a separate register on the basis of race for the employment of Foreign Service officers.

The transition from equal opportunity to guaranteed result has been grafted into our consciences and consciousness by imaginative legal craftsmanship. It developed through the analogy by which disparate impact in one field-where it correctly identified discrimination-to other areas in which disparate impact proves nothing except disparate qualification

In a wide variety of circumstances, discrimination can be supported by disparate impact. For example, if my home town of Fitzgerald, Georgia, permitted illiterate whites to vote and only 5 percent blacks were registered in a community of 9,000 souls, 35 percent of which were black, it would be clear that there is discrimination. Similar disparate impact with respect to the composition of grand juries in that community would indicate that discrimination is at work. Literacy tests such as those which I attacked in Franklin v. Harper, 305 Ga. 779, 555 E.2d 221 (Sup. Ct. Ga.

1949) in 1949, were nothing but shams, the purpose of which was to put a screen around the discrimination rather than to set neutral tests for voter qualification. The experience in voter and jury selections-where citizens are for the most part fungible under qualifications generally prevailing could properly be transported into the employment field for relatively unskilled workers. Thus, in a southern town, a great disparate impact in the proportion of black coal handlers, was tangible proof of discrimination and contrived tests to justify the disparities were properly judged to be sham. A sham is a sham whether it is used for voter or worker qualification. It was a clever try to insinuate abstract principles correctly applied in Griggs-involving coal handlers-into contests involving academic and professional employees, and no doubt some courts will not detect the sleight of hand. But if the issue which Title VII addresses is discrimination, disparate impact in the case of academic, professional or indeed any skilled employment does not prove nor even necessarily suggest that discrimination is at work.

Indeed, the Supreme_Court_recently gave the Fifth Circuit Court of Appeals a unanimous rebuke in Texas Department of Community Affairs v. Joyce Ann Burdine, 49 U.S.L.W. 4 214 (Mar. 4, 1981). In that case, the Supreme Court rejected the Fifth Circuit's determination that, in order to prevail, an employer charged with employment discrimination in hiring, firing or promotions would bear the burden of proving that the person hired was more qualified than the allegedly discriminated against employee. The Supreme Court was not willing to impose such burden on the defendant and quite properly held that the burden of proof rests at all times on the plaintiff.

There are serious economic and social problems in this country and racial and gender discrimination persists. The most serious racial handicap is closely tied to poverty. This reminder may have come as a shock to the coterie of pleaders, bureaucrats and even courts, who seem to have overlooked the fact that the civil rights reforms were directed at discrimination, which is a fact to be proved rather than an assertion to rebutted. Too many have slipped into the false assumption that the Congress has legislated and the Constitution permits the redistribution of society's opportunities to racial, ethnic and gender groups by aliquot fractions. Discrimination still means what the Supreme Court in Furnco v. Waters, 438 U.S. 567, said: "The central focus of the inquiry * is always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex or national origin,'" citing Teamsters v. U.S.

Poverty must be attacked across the board and not on purely racial lines. As Supreme Court Justice Stewart recently noted: "No race has a monopoly on disadvantage. In 1978, 83.4 percent of persons over the age of 25 who had not completed high school were white and 79 percent of households with annual incomes of less than $5,000 were white." Need is need, ignorance is ignorance, in whatever identifiable groups they occur. Obviously full employment, the control of inflation, better medical care, sensitive education in a non-combatant environment, are all probable requirements to help people in their efforts to meet opportunity equally well prepared.

Preferential Treatment Plans, however, seek to focus remedial action on the areas where most progress has already been made in eliminating inequities, and would leave those in direst need in the pit. Justice Douglas wrote in dissent in DeFunis: "The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." Preferential Treatment Plans are ill-fated social engineering attempts to move up those who are already on the upward-mobile escalator, leaving the most disadvantaged behind and dividing man against man and man against woman. It is not enough that we recognize the drift from the American principle of equality now masked as "affirmative action."

It is time that we take affirmative action to end racial, ethnic and gender preferences in state action and at the same time rededicate the country to the extirpation of every vestige of unequal treatment based on these invidious distinctions. The Congress should clearly reaffirm that all of its legislation in the civil rights field must be read by the bureaucracy and the courts as the Supreme Court read Title 42 U.S.C., Section 1981 in the recent case of Washington v. Davis, in which the Court stated:

66

The invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." The Executive should weed out all regulations-there are tons of them-which are not predicated on a color or gender blind reading of our traditions.

Agencies of governments such as the United States Commission on Civil Rights, the EEOC, the OFCCP, and the civil rights organs of the departments should be staffed by servants committed to human equality and equal justice under law.

It was this cause in which I enlisted as a young man and it is under this banner I still wish to march. It happens to be the same banner under which moved all of my colleagues in the civil rights struggle until a new and strange device was unfurled in the middle 1960's. Some say that we should march under this new banner temporarily and then return to the old. For my part the constitutional principles of freedom of speech or press or, as in this case, the equal protection of the laws, cannot be set aside, not by the Congress, not by the courts, not by the bureaucracy and not by people of good will.

[From the New York Times, June 7, 1981]

SKEWING AFFIRMATIVE ACTION'S PURPOSE

(By Morris B. Abram)

As a former Georgian, I am proud of my lengthy devotion to civil rights. I fought the racially motivated electoral system in Georgia for 14 years until the United States Supreme Court finally affirmed the principle of one man, one vote.

In 1963, in litigation, I helped free five followers of Dr. Martin Luther King, Jr., held without bail in an Americus, Ga., jail, under an invalid sedition law carrying a capital penalty.

I have always believed that the very heart of the civil rights movement is abhorrence of color preference and devotion to a color-blind interpretation of the Constitution. I endorsed and continue to support affirmative action as an effort designed to seek out, to train, and to educate (often by remedial means) disadvantaged persons who would not otherwise acquire the qualifications necessary to make equality of opportunity a reality.

Some leaders of the civil rights movement now push, however, for racial preferences that the movement has always considered invidious, odious, and intolerable. The laudable purpose of affirmative action has been skewed into a program of quotas, goals, and timetables, used not to test equality of opportunity but rather to enforce equality of result. Affirmative action has been turned into preferential treatment. Thus, it is now assumed that if under a merit system, 100 whites and 100 blacks apply for 50 jobs, nearly 25 blacks and 25 whites should be hired, for otherwise discrimination is assumed to be present in either the testing or the hiring practices, or both.

The transition from equal opportunity to guaranteed result has been grafted into our conscience and consciousness by imaginative legal craftmanship. It developed through the misuse of a legal analogy by which "disparate impact" (the apparent underrepresentation of minorities), which exposed discrimination in one area was applied in others where such underrepresentation reflected nothing except unequal qualifications.

In a wide variety of circumstances, discrimination can and should be proved by disparate results. For example, if my hometown of Fitzgerald, Ga., with a population of 9,000 of which 35 percent are black, permitted illiterate whites to vote, but only 5 percent of the blacks were registered, it would be clear that there was discrimination. In such an instance, "qualification" such as a literacy test is nothing but sham, the purpose of which is to put a screen around discrimination rather than to set a neutral test for voter qualification.

The experience in voter selection, whereby citizens must be considered the same if democracy is to function, could properly be applied in the employment field to relatively unskilled workers.

Thus, in a southern town, if blacks were not permitted to work as coal handlers, "disparate impact" was tangible proof of discrimination. Any test contrived to justify such disparity could be dismissed only as sham. But disparate impact of a selection process in the case of academic, professional, or indeed any skilled employment does not prove, nor even necessarily suggest, that discrimination is at work.