Even more offensive to basic notions of fairness is the argument that affirmative action_violates the Fourteenth Amendment and constitutes discrimination based on race. Proponents of this theory even seek support in judicial decisions that have invoked the Fourteenth Amendment to bar racial discrimination against minorities, overlooking the critical fact that the Fourteenth Amendment was created for the protection of minorities. Justice Frankfurter, in his concurring opinion in Railway Mail Association v. Corsi, 11 should have put to rest for all time this perversion of the Fourteenth Amendment. inere, the Supreme Court upheld a New York statute forbidding racial discrimination by labor organizations "with all the economic consequences that such denial entails." The union had argued that such state interference with a private organization violates the due process clause of the Fourteenth Amendment. The Justice had little patience with this argument, stating "a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another's hurt. To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment. Certainly, the insistence by individuals on their private prejudices as to race, color or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution itself exacts."

The Reconstruction Congress, the same Congress that gave the nation the Fourteenth Amendment, passed over President Johnson's veto such explicit preferences for blacks as those contained in the Freedman's Bureau Act of 1866 and the Colored Servicemen's Claim Act of 1867.

To construe constitutional amendments designed to protect the rights of minorities in a way that would prevent state or private action to advance equal opportunity for minorities, and/or to correct past inequities based upon race, is Orwellian double-talk. You recall, in the book 1984, how the government posted signs stating "Love is Hate" and "Peace is War".

Another often heard objection to affirmative action programs is that they require companies or institutions to take steps that they normally would not have to undertake in their economic self-interest in a free society. This argument overlooks the fact that affirmative action plans are a remedy for past discrimination. Where there has been violation of the law in the past, it is not uncommon for the courts to order the violator to take steps that he otherwise would not be obligated to take to remedy the wrongs. Certainly when companies are found in violation of the antitrust laws, they are required to divest themselves of assets, pay damages, or take other actions that they would not routinely be compelled to undertake in a freemarket economy. But when the fashioning of appropriate judicial remedies is applied to the complex and emotional environment of race, suddenly there are outbursts of indignation. Yet, all the courts are doing is fashioning a judicial remedy that corrects a past violation of the law. This type of remedy is accepted and applauded by Americans in almost every other context.

Some Americans, who once had restrictive quotas imposed upon them, have attacked affirmative action programs, in my judgment sometimes erroneously. John Hart Ely, in "Democracy and Distrust," pp. 171-72, has written what to me shows the fallacy of such attacks:

"It may be helpful explicitly to confront a fear that apparently has prompted certain Jewish groups to oppose preferential admissions for blacks. Somehow, the concern seems to run, most of those "black places" will be taken from Jews. I do not for a moment discount the reality of anti-Semitism in our society, nor can we dismiss the feared scenario as "just one of the costs" of pursuing racial equality. It is an unacceptable scenario, and an unconstitutional one as well. An American state legislature, unlike perhaps the Israeli Parliament, cannot legitimately pursue the goal of reducing the percentage of doctors who are Jewish. Whites generally, not Jews in particular, are a majority in our society, and consequently racial discrimination is unsuspicious only when it runs against whites in general. It is hard to see, however, how this danger can form the basis for a constitutional argument against preferences for blacks or other racial minorities. A "discretionary" system of selection already leaves room for various sorts of indefensible prejudice to operate: no matter how one might feel about the comparative merits and dangers of such a system-my own feeling has never been very positive-a decision to extend preferences to blacks does not significantly alter the problem. Administrators who include toward anti-Semitism in the one situation will very likely incline toward it in the other, and the chances of catching them—of demonstrating the illegality of what they are doing-don't seem to be greater one way than the other. Should a preferen

11 326 U.S. 88 (1944).

tial admissions program for blacks be accompanied by an unexplained disproportionate drop in the percentage of Jews, or even by a shift to a selection system that left more room for anti-Semitism-a more discretionary system or a ceiling on the number of students from New York City-the appropriate judicial response would be clear. There would then be reason to suspect that the idea was to prefer one minority at the disproportionate expense of another for reasons of ethnic prejudice, and the scheme should be invalidated. Anti-Semitism is a danger-one that should, in any event, be combated by every available tool, including constitutional litigation-but the danger is independent of a decision to extend preferences to blacks. There is thus nothing constitutionally suspicious about a majority's discriminating against itself, but we must never relent in our vigilance lest something masquerading as that should in fact be something else."

See also op. cit., n.109.

I have discussed why I believe some of the arguments against affirmative action are fallacious. The best argument for affirmative action, however, is that it works. It is not a panacea, but in my own experience, I have witnessed its effectiveness from several perspectives.

As an incoming freshman at Harvard Law School in 1941, I could count on one hand-only four-the number of black students in my class of over 500. Today, many years later, after a concerted commitment to affirmative action, ten to twelve percent of the student body are members of minority groups. I know the tremendous opportunity that my Harvard Law School training provided me, and I believe it is genuine progress to be able to say that ten times as many members of minority groups today have the advantage of that opportunity.

Secondly, when I was appointed Secretary of Transportation by President Ford, I soon became dismayed at the low numbers of minority employees in the Department and the low levels of minority participation in the public works construction projects funded by the Department. When I took the oath of office to defend the Constitution and to execute faithfully the laws of the United States, it placed upon me an obligation to see that all Americans, including minorities, had the same opportunities for federal employment, and that since the federal government was taking a significant percentage of the gross national product each year, the contractors and subcontractors to profit from such money should be of all races. Yet I saw that (a) although air traffic controllers, for example, received most of their pertinent training from the government, very few blacks were admitted to this program; (b) major expenditures were made for transportation projects, many of them in the inner-city, yet blacks were very much under-represented on the construction crews and almost nonexistent among the contractors; and (c) when outside accountants were needed to review the books of various transportation agencies, minority firms were never selected. I assure you that, by merely stating that there shall be no longer any racial discrimination, I did not, and could not, change these brutal facts. In each of these and other areas I thus set about to establish affirmative action plans, to make affirmative action an essential prerequisite for government funding and to create goals and other incentives for the hiring of minority personnel. We made substantial progress in each of these areas. Minority CPA's were hired to examine the FAA's books; more minorities were recruited as air traffic controllers; the Northeast Corridor Project included a substantial minority business program which has not only benefited black entrepreneurs but created construction jobs and training for black laborers. 12 The fact is that there was a long history of limited or nonexistent access by blacks to the benefits provided by the Department of Transportation. The fact is that it took a strong commitment to affirmative action to begin to change this trend.

My experience as Secretary of Transportation is not unique. Other responsible government officials and private institutions have found that, in many circumstances, there is no effective alternative to the use of race-conscious measures if blacks and other minorities are ever to become full and equal participants in our society. The Detroit Police Department, for example, over a period of years upgraded its minority recruitment efforts and modified its selection procedures without substantially increasing the numbers of black police officers hired and promoted. Only after the department adopted a policy of hiring and promoting one qualified black for every qualified white did it succeed in integrating the police force. Similarly, for more than 25 years federal committees and agencies attempted without noteworthy success to secure compliance with executive orders banning discrimination by government contractors. The Labor Department eventually concluded,

12 Seventeen percent of the subcontracting work on the Northeast Corridor Project is being done by minority contractors.

during the Nixon Administration, that it was necessary to adopt measurable numerical goals and timetables for minority employment and advancement.

Race-conscious affirmative action plans, when properly designed and implemented, can benefit whites as well as minorities in a number of ways. The training program at issue in the Weber case,13 for example, was adopted primarily to provide opportunities for black employees to move into the skilled crafts, but half of the openings went to unskilled white employees who previously had no access to such training. Affirmative action plans which focus on observable numerical results also encourage institutions to reform arbitrary tests and qualification standards. While such tests and standards may have a disproportionately adverse impact on minorities, they almost always operate to the detriment of some whites as well. Changes in such standards not only benefit the arbitrarily excluded whites, but also contribute to the development of a true merit system.

Using race-conscious methods to bring minorities into predominantly white schools, offices, factories, and neighborhoods can also have a beneficial educational effect on the white majority. As Justice Powell noted in his opinion in Bakke, raceconscious university admissions policies benefit all students by insuring racially and ethnically diverse student bodies. As well thought-out and sensitively administered affirmative action plans increasingly bring qualified minorities into contact with whites, some of the old myths, stereotypes, and prejudices are beginning to fall away. Moreover, using race-conscious measures to achieve full minority participation in police and fire departments and in other governmental functions is often essential to the provision of fair and effective law enforcement and other government services. All citizens benefit when blacks as well as whites trust their police departments and other governmental institutions.

As a member of eight corporate boards of directors, I take a special interest in the affirmative action programs of the companies with which I am affiliated. Although good news does not travel very far, I can say categorically to this Subcommittee that my overall conclusion is that major U.S. companies support affirmative action programs, and that such programs are working effectively to bring black Americans into the mainstream of our economy. Given the recognition by corporate executives that such programs are in the nation's economic interest as well as in their own self-interest, government should encourage and support efforts by the private sector to act in a socially and economically responsible manner.

In the twenty-seven years since Brown v. Board of Education, many of us may have forgotten that black Americans were brought to this country in chains in the hulls of cargo ships and sold as slaves. It is also forgotten that the Supreme Court held in the Dred Scott case that blacks, whether slave or free, imported or native born, could not be citizens of the United States. Through the combined actions and inactions of state and federal governments over the years, they were held in a position of legal inferiority for another century after the Civil War. In fact, not until the mid-1970's can one fairly say there was a national consensus that governmentally sponsored racial discrimination and segregation were legally wrong. Righting the wrongs of this legacy of social injustice, this legacy of racial intolerance and bigotry, cannot be accomplished by one landmark Supreme Court decision or by egalitarian pronouncements in civil rights laws.

The consequences of centuries of slavery and second-class citizenship cannot be overcome by simply pretending that those consequences do not exist. It is nothing but a sham to allocate jobs, university admissions, government contracts, and other scarce opportunities and resources on the basis of so-called "neutral" criteria that in fact perpetuate the legacy of slavery and discrimination. Bringing real equality into the mainstream of American culture and purging that culture of the effects of racism and racial segregation will take many more decades of committed effort. The facts today demonstrate that we have a long way to go.

The substantial inequality between minorities and whites today is susceptible of many interpretations. Some will argue that blacks are inherently inferior and thus relegated to an economically subordinate status. Yet, such a theory explodes upon the existence of an Alexander Pushkin, a William DuBois, a Charles Drew, a Langston Hughes, or a William H. Hastie, to include only a few of the dead. Others may argue that, while there may be talented exceptions, God has not distributed ability proportionately among the races. I believe both of these theories are wrong and must be vigorously refuted. And if they are wrong, then the only rational explanation for the enormous disparity that continues to exist between minorities and the majority of white Americans is the legacy of slavery and racial discrimination. That legacy calls for affirmative action to remedy past wrongs, to realize the

13 United Steelworkers of America v. Weber, 443 U.S. 193 (1979).

human potential of black Americans, and to transform egalitarian wishfulness into pragmatic experience. To do so requires more than simple color-blindness; it requires the skillful use of race-consciousness to achieve a race-neutral society. As Justice Marshall so eloquently stated in the Bakke case:

"The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.

"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."

In a series of cases decided over the past three years, the Supreme Court has recognized the validity of various forms of race-conscious affirmative action. In the Bakke case in 1978, while a majority of the Court invalidated a particular medical school special admissions program on statutory grounds, a different majority held that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." In the Weber case the following year, the Court held that Title VII of the Civil Rights Act of 1964 permits private employers and unions to adopt race-conscious numerical affirmative action plans which are designed to break down patterns of racial segregation and hierarchy in traditionally segregated job categories, provided that such plans do not "unnecessarily trammel the interests of the white employees" and that they are "temporary measure[s] . . . not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance." Finally, last year in the Fullilove case the Court held that Congress, in providing grants of federal funds to state and local governments for public works contracts, may properly require that a minium percentage of those funds be set aside to procure services and supplies from minority business enterprises.

In each of these cases, members of the Court carefully reviewed and documented the evidence demonstrating the need for race-conscious affirmative action: a long history of limited minority access to the medical profession and denial of adequate health care to minority communities; exclusion of blacks from vocational schools and jobs in the skilled trades for a century after Emancipation; the longstanding denial of effective participation by minority businesses in public contracting opportunities. And in each case, as in our society generally, the recent adoption of racially "neutral" admissions policies, employment practices, and contracting procedures could not suddenly obliterate the consequences of our history and bring about immediate equality of opportunity. On the contrary, in the context of our national history of slavery, segregation, and discrimination, the failure to take race into account often perpetuates the effects of our past. In reality, "neutral" practicessuch as admitting to professional schools only those students with the highest grades and test scores, or selecting for job training programs only those employees with the most seniority, or awarding government contracts only to the lowest bidders may simply insure that black Americans continue to be excluded from full and equal participation in our society. Far from serving the goal of equality, such racially "neutral" policies guarantee that there will continue to be no escape from the self-perpetuating cycle of discrimination, poverty, and despair: discrimination in education will deny the credentials to get good jobs; discrimination in employment will deny the economic resources to buy good housing; discrimination in housing will confine minorities to school districts providing inferior education; and so on, ad infinitum. The warning given by the National Advisory Commission on Civil Disorders in 1968 will prove to be true: our nation will be "two societies, black and white, separate and unequal."

The ultimate goal of affirmative action, then, contrary to the arguments of some of its critics, is not to set up a permanent system of proportional representation for all racial and ethnic groups. Rather, it is to break the cycle of discrimination and to achieve equality of opportunity which is real and not illusory.

Despite the continuing legacy of slavery and discrimination, there has been some progress in recent years. Among blacks who are employed, there has been a substantial increase in professionals and managers. While about one percent of America's law students were members of minority groups in 1964, today the figure is close to ten percent. In 1969 only about three percent of medical school enrollment was minority; today it is about ten percent. The ratio of black undergraduate enrollment

to black population for the first time is virtually the same as the ratio of white undergraduates to white population.

This is not to say that we no longer need affirmative action. Minority managers are clustered at low levels; the percentage of minority professionals remains in the low single digits. A disproportionate number of blacks attend two-year colleges or fail to graduate from four-year schools. Unemployment among blacks remains double that among whites; the jobless rate for teen-age blacks is four times that of young whites. Black median income is less than 60 percent of white median income. But affirmative action has begun to work. As Jack Greenberg, Director-Counsel of the Legal Defense Fund, has stated:

"It doesn't take a statistician to perceive the shifting racial and ethnic makeup of the American social and economic structure. Anyone who walks down the corridors of a major corporation or looks into a university classroom can readily observe the difference between today and a decade ago. There are conspicuously more blacks, Latinos and women everywhere."

Affirmative action is at least partly responsible for this change. It has given some black citizens and other minorities their first foothold on equal participation and their first stake in the success of America's institutions. If we are ever to achieve the goal of a truly race-neutral society, those institutions must be permitted to continue using affirmative action to bring minorities into the mainstream of American life.

It would be my fondest hope to appear before this Subcommittee one day to state that affirmative action is no longer an essential tool in the realization of the American dream. When practical realities reflect our egalitarian aspirations, then we will have created a true tradition of equal opportunity regardless of race. But let us not be deceived by mistaking our wish for a society free of discrimination for the reality of today's conditions. As Mr. Justice Blackmun stated 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."

Perhaps this Committee can establish criteria by which it will measure the practical conditions against the principles of equal opportunity. When we can show, as a nation, that we have made sufficient progress in meeting these criteria, then the remedy of affirmative action will no longer be an essential tool in realizing our constitutionally recognized values.

The criteria I would list include the following:

1. Substantial equality in average wages between minorities and whites; 2. Approximately equivalent rates of unemployment among minorities and whites;

3. Substantial equality in housing conditions and opportunities;

4. Substantial equality in admissions to institutions of higher education and professional schools;

5. Substantial representation in membership in trade organizations and unions; and

6. Substantial representation in corporate board rooms, banks, the guiding bodies of the major political parties, the Congress and state legislatures-in short, in the positions of influence and power in our society, where basic economic and political decisions are made

Perhaps, as views of the Chairman of the Legal Defense Fund, my comments today have not been surprising. But I would hope that my comments also will be received and accepted as the views of a life-long Republican. At this time of Republican resurgence, when the nation is awakening to the potential for greater economic freedom and freedom from government intrusion and regulation in our lives, the Republican Party should remember that it is the party of Abraham Lincoln and Charles Evans Hughes and Earl Warren. These great Republicans also were dedicated to a free society, one in which all Americans-black and whitewould have a genuinely equal opportunity to participate in the fruits of a free society and, in fact, would so participate.

EQUALITY-NOT YET

(By William T. Coleman Jr.)

WASHINGTON.-For black Americans, racial equality is a tradition without a past. Perhaps, one day America will be color-blind. It takes an extraordinary ignorance of actual life in America today to believe that day has come.

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