schools at Ohio State and at Yale Universities. Professor Van Alstyne has also been a visiting professor at the University of Pennsylvania, Stanford University, and William & Mary. Professor Van Alstyne is one of the Nation's leading constitutional scholars and has authored numerous Law Review articles on a diverse variety of constitutional subjects. This committee was privileged to have heard from Professor Van Alstyne during the last Congress on the matter of constitutional convention procedures legislation, and, I believe, we will be having the benefit of his views shortly on the question of Congress' authority under article III of the Constitution to limit court jurisdiction. Professor Van Alstyne is the former president of the American Association of University Professors and a former long-time member of the board of directors of the American Civil Liberties Union. He is the author of a recent article in the University of Chicago Law Review entitled "Rights of Passage: Race, the Supreme Court, and the Constitution.' We are pleased to have you with us also, Professor Van Alstyne. Prof. Robert Sedler is a professor of law at Wayne State University. He carries with him the extremely impressive credential of having graduated with a juris doctorate from the University of Pittsburgh, which happens to be my own alma mater. [Laughter.] Professor Sedler has previously taught at the University of Kentucky Law School and has been a visiting professor at the University of Iowa, Washington University, and Cornell. Professor Sedler is one of the Nation's most widely respected authorities on civil rights law in addition to being one of the foremost practicing litigators in this field. Among some of his most recent Law Review articles are an analysis of the Bakke case in the Harvard Civil Liberties Law Review entitled: "The Constitution in Redressing the Social History of Racism," and an analysis in the Wayne Law Review on: "Racial Preference in the Constitution: The Societal Interest in the Equal Participation Objective." Again, Professor Sedler, we are delighted to have you with us as well. Prof. Martin Kilson is the professor of government at Harvard University. He was the first black ever to be appointed to a full professor position on the Harvard arts and sciences faculty. Dr. Kilson is the author of numerous scholarly articles on the subjects of urban politics, Afro-American politics, and ethnic studies. Dr. Kilson is a former consultant to the Ford Foundation and the Guggenheim Foundation, a fellow of the American Academy of Arts and Sciences, and a long-time member of the NAACP. Again, Dr. Kilson, we are delighted to have you with us. In fact, the four of you are as distinguished a panel as I think the Judiciary Committee has ever had. We are delighted to have you with us. Mr. Sedler, we will begin with you, if that is all right. STATEMENT OF ROBERT SEDLER, PROFESSOR OF LAW, Mr. SEDLER. Thank you, Mr. Chairman. I am pleased to have the opportunity to address the subcommittee on the subject of affirmative action. I believe this is the most fundamental issue of equality that faces the Nation today. My definition of "affirmative action" is the same definition as that of the chairman-the use of race-conscious criteria favoring blacks and other nonwhite groups such as Hispanics and Native Americans and gender criteria favoring women. In my prepared testimony before the subcommittee, I have discussed primarily affirmative action from the racial perspective, and I have also shown why related considerations justify affirmative action favoring women. But in my oral presentation, I will limit myself to the justification for racial affirmative action. Senator HATCH. We will be happy to place your full remarks into the record with any additions that you care to submit. Mr. SEDLER. Thank you, Mr. Chairman. SOCIAL HISTORY OF RACISM The primary justification for racial affirmative action is that it is necessary to insure the full and equal participation of black Americans in all aspects of American life, which participation has been denied to them by the long and tragic social history of racism in this Nation. The term "social history of racism" is a shorthand expression for everything that has happened to blacks and for the history of discrimination and victimization of blacks in American society. It had its genesis in the institution of chattel slavery, and it is a history of legally-imposed inferiority, of rampant discrimination in employment, of ghettoization, of segregated and tangibly inadequate schooling, and of the denial of access to societal power. The massive racial discrimination and victimization practiced against blacks is qualitatively different from the kind of discrimination that in times past has been practiced against white ethnic groups in America. This has been noted by all observers. As the National Advisory Commission on Civil Disorders observed in 1968: "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." The consequences of the long and tragic social history of racism remain and perpetuate themselves. Again, as the National Advisory Commission on Civil Disorders observed: "In America, there are two societies: black and white, separate and unequal.' The inequality is manifested in a number of gaps-the statistics and the data are all too familiar to this subcommittee. There is the economic gap-black family income is, at most, 60 percent of white family income; unemployment rates are doubled; blacks are concentrated in the least desirable jobs. There is the educational gap-both a quantitative and qualitative gap between the educational experience of black Americans and the educational experience of white Americans. Stated simply, blacks as a group have received far less benefit from the system of education in this country than have whites as a group, and it was set up this way. There is the power gap. Blacks are underrepresented in the positions of power and prestige in America. Indeed, as the chairman's own introduction of Dr. Kilson indicated, we still hear about the "first black person to *" Blacks do not remotely share equally in societal power with whites. The consequences of this social history of racism are self-perpetuating and self-reinforcing. Indeed, it is only the last two decades that we have made, at most, some progress in halting the overt discrimination against blacks in American society. Today, we do have in place a system of prevention in the sense that the law prohibits overt discrimination against blacks. But the system of prevention does not purport to deal with the present consequences of the long and tragic social history of racism and cannot do so. Because those consequences are so enduring and so pervasive, the system of prevention, even if vigorously and fully enforced, will do very little to alter the societally disadvantaged position of blacks and the condition of racial inequality that exists in American society. This is why affirmative action is necessary, and this is why it is justified. THE EQUAL PARTICIPATION OBJECTIVE Let me explain exactly what I mean by the equal participation objective. The goal of the equal participation objective is to end white supremacy and black inequality in all their manifestations and to achieve genuine equality between blacks and whites in American society. This means that ultimately blacks as a group will participate equally with whites as a group in all aspects of American life, blacks as well as whites will be involved in societal governance, blacks as well as whites will share positions of power and prestige, blacks will be meaningfully represented in the economic system, blacks will no longer be disproportionately lower income in relation to whites. This is the goal of the equal participation objective. It is not based on any notions of reparations or proportionality. It does not mean that because blacks have been subject to a long history of discrimination and victimization, white society now owes blacks reparations. It 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 it does seek to give blacks as a group some meaningful share of societal participation and power and to bring them fully into the mainstream of American life. The focus of the equal participation objective is on the present consequences of past discrimination, on the self-perpetuating and self-reinforcing consequences that are felt by blacks as a group today. If those consequences did not exist, there would be no basis for affirmative action to implement the equal participation objective. This is another basis for distinguishing the situation of blacks from the situation of white ethnic groups. For example, it cannot be doubted that in the past there has been discrimination against Jews in America. Since I am Jewish, I can discuss the existence of Jewish societal power without being accused of antisemitism. But let us assume that if it had not been for such discrimination, Jews as a group would have even a greater share of societal power than they have now-for example, that there would be even more Jewish physicians and lawyers. But Jews as a group do not lack a fair share of societal power. There are, indeed, quite a substantial number of Jewish physicians and lawyers. 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 to favor blacks. Similarly, although Asian Americans have been subject to discrimination that truly can be characterized as racial, Asian Americans as a group also have a fair share of societal power and participation in relation to their representation among the general population. So affirmative action favoring Asian Americans cannot be justified as being necessary to advance the equal participation objective. There are few today who will try to justify overt discrimination against blacks or who fail to express regret over the condition of societal racial inequality that exists today. But they extol the virtues of racial neutrality. They say: "We must have a Constitution that is colorblind." By proclaiming the virtues of racial neutrality, however, they deliberately choose to ignore the self-perpetuating and self-reinforcing consequences of the social history of racism. If we have racial neutrality, we will perpetuate and maintain white supremacy. If we have racial neutrality, we will not have racial equality. After a long history of racial discrimination, the principle of racial neutrality may sound nice, but the bottom line and the realistic meaning of racial neutrality today is the perpetuation of white supremacy and of two societies-black and white, separate and unequal. There may be other means proposed to overcome this, but basically those means are not directed to the condition of racial inequality that exists in American society. I would submit, therefore, that in the absence of affirmative action we will continue to perpetuate and maintain white supremacy and racial inequality. THE COSTS OF AFFIRMATIVE ACTION Affirmative action has its costs, and this is perhaps the heart of the controversy. Affirmative action will benefit blacks as a group by increasing the participation of blacks in all aspects of American life. While the immediate beneficiaries, of course, will be individual blacks, the ultimate benefits are realized by blacks as a group as blacks will become full and equal participants in all aspects of American life, and those benefits will be realized by the society as a whole, which needs the full and equal participation of black Americans in that society. The costs are not borne by whites as a group. Whites as a group now have full and equal participation-indeed, they have supremacy and dominance in all aspects of American life-and whites as a group will not be injured if this participation is shared by blacks. The direct costs of affirmative action are borne by individual whites who, but for affirmative action, would have received the benefits that are now going to blacks. These individual whites suffer, in the literal sense of the term, racial discriminationdisadvantageous treatment due to considerations of race. We may assume for purposes of our analysis-although this is not always the case-that the individual whites who suffer this racial disadvantage are "innocent" in the sense that they did not benefit directly from past discrimination against blacks. But they are no more innocent than all of the black population of the United States which has been denied full and equal participation in American life. What affirmative action means is that the burden of the consequences of the social history of racism in this Nation are shared to some degree by whites instead of falling entirely on blacks. As Chief Justice Burger observed in the Fullilove case: "A sharing of the burden by innocent parties is not impermissible." As is clear, there is a strong societal interest in the full and equal participation of blacks in all aspects of American life. Again, it is a well-settled legal principle that individuals may properly be required to make sacrifices in the public interest. It cannot be a legitimate objection to affirmative action, then, that it imposes some cost on individual whites. Affirmative action is necessary to overcome the present consequences of a long and tragic social history of racism in this Nation. It is morally right that those consequences be overcome and that we have true racial equality in American society. The moral rightness of affirmative action is in no way lessened because it requires that the burden of the consequences of the social history of racism be shared by whites instead of being borne entirely by blacks. THE SOCIETAL INTEREST The last point I want to make is in regard to the societal interest in the full and equal participation of blacks in all aspects of American life. Let us take an example-the participation of blacks in the functions of government. Consider first the police function. Blacks traditionally have been grossly underrepresented in municipal police forces, even in cities having a substantial black population and virtually nonexistent in State police forces, even in States having a very large black popula tion. For example, when the city of Detroit adopted an affirmative hiring program with respect to police hirings and promotions in 1974, the city, with a black population of nearly 50 percent at that time, had a police force that was only 17 percent black and among the supervisors less than 5 percent black. The city of Detroit, under the leadership of Mayor Coleman Young, adopted an affirmative action program in 1974. When that program was challenged in Federal court, the court found that as a 84-280 0-83-2 |