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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." 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 constitutional 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 univerlly 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).

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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

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 degree that the Carter administration entered into under the cover of night in the waning days of the administration, "It would be a matter of indifference," he writes, "if 27 whites and only 23 blacks were hired."

I shall not hereafter in this testimony use the words "affirmative action." I shall call it by what it is-the preferential treatment plan.

We have been led to accept that, as Mr. Seymour assumes, for the Federal merit system, if minorities happen not to be chosen in proportionate numbers to the population or, as he suggests, in proportionate number to the applicants, that the system of examination is presumptively discriminatory.

Such a rationale has to proceed from the premise that for any academic or administrative or professional opportunity people are proportionately qualified by race, gender, and ethnic origin in accordance with U.S. population statistics. That is absurd.

Mr. Chairman, I have a fairly good IQ, I think. I have five children. Not one of them has ever done well on the mathematical aptitude test; they do brilliantly on the others. On the other hand, I have a partner who has two children who each scored 800 on mathematical aptitude, and they do not read well. There are differences in people.

Since we know this to be true, how can leaders contend that unless an examination produces a proportionate result it is presumptively discriminatory, and how can lawyers litigate such issues?

I would like to trace how we got there because I think it is important to do this to see how we get out of it.

Mr. Chairman, I was raised in a little country town-Fitzgerald, Ga.-right in the middle of south Georgia. It had 6,000 people, and 35 percent of its population were black.

Since you could vote if you were white and illiterate, the fact was that you had all white voters and almost no blacks-disparate impact on the voting rolls. What did it prove? It proved discrimination. That is obvious. Since the same was true of the grand juriesthat no blacks served on the grand juries-you had to know that there was discrimination at work in the selection process.

As a matter of fact, that great man, Elbert Tuttle, the former chief judge of the fifth circuit court of appeals, and I as a very young lawyer appeared amicus curiae in a brief in the Supreme Court of Georgia in 1949 in a case called Franklin v. Harper, in which Judge Tuttle-then Mr. Tuttle-and I tried to overturn this specious sham of a literacy test designed to still keep blacks from voting in Georgia.

A sham is a sham is a sham, and these original disparate impact cases were discrimination cases, and the testing was merely a device, screen, or a sham to keep the discrimination in place.

Now you get title VII and you get this Griggs v. The Duke Power Co. case involving coal handlers. Coal handlers in the South are fungible. A coal handler does not really need to have passed the thematic aptitude perception test; we know that. So the fact that you did not have blacks handling coal for the Duke Power Co.-the