operate negatively, and they operate destructively, even as reported in the Washington Post about a year ago, in the particular administration of the District of Columbia's own racial double standards pursuant to which "proper" racial certification guarantees competition for racial spoils alone.

I now read to you a portion of that report:

A highly unusual and controversial proposal under consideration by a city agency would eliminate a large number of local ethnic groups from eligibility for lucrative minority contracts with the District of Columbia government. The proposal by the staff of the Minority Business Opportunity Commission would eliminate from minority status all Hispanics born in Europe and South and Central America, leaving only Hispanics born in Mexico or Puerto Rico eligible for the contracts. The proposal would eliminate from minority status persons born in Vietnam, India, China, Korea, and Africa.

Four major local Hispanic-owned companies have won a total of more than $20,000,000 worth of the city's special minority contracts in the last year. These, incidentally, are set-aside contracts quite apart from their equal and uniform eligibility to bid on all of the other contracts-it is just a racial add-on. This represents 40 percent of the entire minority additional share of the local market.

"Oh, my God," one influential Hispanic leader with ties to the mayor's administration said when informed of this proposal.

If [Mayor] Marion Barry agrees to do something like this, then it's really going to be a political war between Hispanics and blacks, and that would be terrible.

I've been working in the District of Columbia for 20 years, said Jose Rodrigues, who was born in Argentina and is coowner of a major Hispanic company that does minority business with the District. To be Rodrigues or black is the same thing. Rodrigues and his brother Francisco own Fort Myer Construction Corp., in Arlington, which he says does more than $3 million in the minority business with the city quite apart from $1.5 million in the regular competitive market. (Italic added.)

WHAT CONGRESS SHOULD DO

It is to me unbelievable that this Congress would not know from 300 years of failed efforts to use race in measuring civil rights now to have stopped it completely and to have stopped it across the board.

Yet, as the members of this committee are very well aware, among our current laws there are several which provide for racial discrimination and, indeed, require racial discrimination in the administration of several Federal programs.

They are not, I say again, affirmative action in any proper sense. They do not end racial discrimination, and they do not relieve people in this country of a continuing anxiety that their race will be used at the Federal, State, and local level to their disadvantage.

Their presence drains away support for efforts to help disadvantaged persons generally, and they tend monumentally to discredit more genuine affirmative action undertakings of the kind I attempted to describe in the opening portion of my statement.

Respectfully, I would urge this committee to prepare for Congress a new act, succinct and unequivocal, forbidding any form of racial discrimination by the Government of the United States, superseding all other laws of the United States insofar as they are inconsistent with this statute.

Thank you, Mr. Chairman.

Senator HATCH. Thank you, Professor Van Alstyne. Without objection, we will insert your prepared text at this point.

[The prepared statement of Professor Van Alstyne follows:]

PREPARED STATEMENT OF PROF. WILLIAM Van AlstyNE

I am William Van Alstyne, Perkins Professor of Law at Duke University. My principal concentrations in teaching and in writing are constitutional law and the federal practice of civil rights. I am a member of the Supreme Court Bar and of the Bar of the State of California. My academic degrees are from the University of Southern California and from Stanford University. During the past decade, I have served on the National Board of Director sof the American Civil Liberties Union and, for two years, I was National President of the American Association of University Professors. I have appeared by invitation previously before a number of Senate and House Committees, usually in connection with an inquiry into some issue of constitutional law, and often in support of various civil rights bills. I appreciate your invitation to appear on this occasion in respect to the subject of racial discrimination and affirmative action. My views on both matters can be easily summarized. Racial discrimination by the government of the United States should be forbidden without exception and utterly without qualification. Affirmative action which requires that appropriate care be taken to safeguard individuals from racial discrimination by their own government is readily defensible as well. Essentially, such affirmative action provides safeguards that a clear and firm policy forbidding racial discrimination in any practice or operation related to this government is neither deliberately nor even inadvertently violated. In brief, affirmative action, properly understood, goes beyond the mere statement that racial discrimination is forbidden, recognizing that racial discrimination may in fact take place, both willfully and gratuitously, despite an express Act of Congress forbidding it. Affirmative action thus supplements a policy forbidding racial discrimination by putting into place a variety of mechanisms to insure the complete integrity of that policy of nondiscrimination. Among these mechanisms are the following:

1. Requirements of record keeping subject to periodic review for the purpose of determining whether in fact individuals are being discriminated against, despite formal commitments or promises to the contrary;

2. Periodic review of employment, contract, promotion, or other standards which, while nominally not racially discriminatory on their face, do not in fact have any defensible significant purpose and do in fact operate gratuitously to discriminate racially;

3. The development of additional programs, operated without any racial discrimination whatever, which may nonetheless be expected significantly to improve the skills and opportunities of disadvantaged persons many of whom are of ethnic minorities.

This third step is not, strictly speaking, essential as a means of affirmative action that safeguards a policy of nondiscrimination from furtive or from gratuitous violation. Insofar as it assists disadvantaged people without presuming to pick and choose on racial grounds, however, it may be an altogether proper means to enhance the real opportunity of many people who would otherwise not acquire the skill or the education enabling them to advance very far even in the absence of any racial discrimination whatever. Such programs are wholly affirmative. They reflect appropriate government action. So long as they do not themselves then presume to use race as a means to fix eligibility for participation, or to favor or to disfavor any otherwise eligible person on racial grounds, they are consistent and, indeed, supportive of a policy pursuant to which this government resolves never to make any citizen to be anxious that his own government will use his race as a basis of exclusion or disadvantage.

This brief summary of my views, and especially in respect to its position on affirmative action, is rooted in my profound agreement with the views of two justices of our Supreme Court, writing more than a half-century apart. The first was Mr. Justice Harlan, dissenting from a decision by the Court permitting racial segregation under the law. The second was Mr. Justice Douglas, dissenting from a decision by the Court which declined to forbid racial discrimination against a white applicant to a state university law school. In each, the common element was the government use of race to index people by their race and, in some measure, to fix their civil rights according to their race. In each instance, these justices recognized all such practices by the government as necessarily divisive, discriminatory, immoral, and unconstitutional. Mr. Justice Harlan declared:

"The destinies of the

races in this country are indissolubly linked together, and the interests of [all] require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law."

*

"The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and States, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race."

And Mr. Justice Douglas declared:

"So far as race is concerned, any state-sponsored preference for one race over another is in my view 'invidious' and violative of the Equal Protection Clause. Mr. Douglas wrote almost exactly one century after Richard Cain, a black Representative from North Carolina, addressed his colleagues in the House of Representatives in this Congress, in 1875:

"We do not want any discrimination. I do not ask any legislation for the colored people of this country that is not applied to the white people."

As distinguished from large numbers of lobbyists who have presumed to advise this Congress in recent years that this sentiment is no longer shared, moreover, no major poll has disclosed a prevailing sentiment within any race whatever declaring that they wish race to be used as a factor in any government program.

There is, for instance, a far higher percentage of black people who are poor in this country than of white people. There are, at the same time, vastly more poor white people in the United States than the total number of poor black people. No poll has reported that among the poor, there is a majority of any race that thinks it just or fair to make racial distinctions respecting eligibility for programs at the local, state, or national level meant for the disadvantaged: the very idea of providing racial budgets, of dividing eligible persons by racial cohorts, or of suggesting that the "white" budget has already been exhausted by prior users (or the "black" budget exhausted by prior-applying blacks) is repugnant.

Similarly, as poverty is poverty, such that one person's poverty is not to be measured as less than another, or less "eligible" than another, by race, so equally unemployment is unemployment and no racially-contrived shares can creditably be established by this Congress or by an federal agency. And identically, if a particular family is by need and circumstance at least as eligible as another for housing assistance, by what proper power has this Congress, or any federal agency, to ask that they step aside because of their race? On the basis that this Congress (or, rather, more typically a federal agency) desires what it regards as a more "wholesome" racial mix in a particular housing facility and will, on that account, declare persons ineligible for such housing when the "desired" racial mix is threatened? But that was exactly the arrogance by government rightly regarded as a shocking instance of outrageous presumptuousness when used by a state university law school to support its racially discriminatory policy in the Defunis case; it was the very thing Mr. Justice Douglas believed to be a vice, not a virtue. Indeed, his fuller quotation is additionally instructive:

"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."

"A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color."

"So far as race is concerned, any state-sponsored preference to one race over another is in my view 'invidious' and violative of the Equal Protection Clause."

As it is with these several examples, so it is equally in respect to all else undertaken by government. There is no noninvidious basis whatever to reject an application for a small business loan on the foundation that the "fair share" of that businessman's race has already been exhausted by others of "his" race. Whether in terms of his need, the soundness of his proposal, limitations on the budget of the Small Business Administration, or any fair comparison with the applications by others, what does his race have to do with it? If he is white, but the majority of those who work for him are black (and thus may especially benefit if the loan is granted), shall he then be switched into a different, racially-qualifying group? Or is there some agency perception that this is unwise, as it preserves racial stereotypes within a business, and that it would be "better" to "favor" a small business where

the owners were black and the employees white? If it is an award of a federal contract, restricting the competitive bid process by racial shares, shall this Congress act to authorize federal agencies to work out distinctions of this kind? What percentage of a contracting firm's management must be black (or brown) to be eligible for special racial advantage? What percentage of its workforce? What percentage of its stockholders?

These examples doubtless sound harsh. They are harsh * because they are real. They report the actuality of ubiquitous race uses compelled by any exception which this government makes never to tolerate the use of race as a means of indexing its citizens by race and measuring their rights under law by race. They are not instances of affirmative action to safeguard persons from racial discrimination, whether overt, furtive, or merely inadvertent. They are not affirmative action to increase the skills and opportunities of disadvantaged persons generally or in particular. They are not "affirmative" action at all. They are instances of racial discrimination which divide us, and render all of us anxious that this government may "ask" us what race are we so that it might treat us differently on that account under the laws of our own country. They reduce us in our common humanity and insure the permanence of racial anxiety. They operate negatively and destructively, even as reported in the Washington Post of May 22, 1979, in the administration of the District of Columbia's racial double-standards pursuant to which "proper" racial certification guarantees competition for racial spoils:

"A highly unusual and controversial proposal under consideration by a city agency would eliminate a large number of local ethnic groups from eligibility for lucrative minority contracts with the District of Columbia government.

"The proposal by the staff of the Minority Business Opportunity Commission, would eliminate from minority status all Hispanics born in Europe and South and Central America, leaving only Hispanics born in Mexico, or Puerto Rico eligible for the contracts.

"The proposal would also eliminate from minority status persons born in Vietnam, India, China, Korea, and Africa.

"Four major local Hispanic-owned companies have won total of more then $20 million worth of the city's minority contracts in the last year. This represents 40 percent of the entire minority share of the local market."

""Oh, my God,' one influential Hispanic leader with ties to the Barry administration said when informed of the staff proposal. 'If [Mayor] Marion agrees to do something like that, then it's really going to be a political war between Hispanics and blacks, and that would be terrible.'"

"I've been working in the District of Columbia for 20 years,' said Jose Rodrigues, who was born in Argentina and is co-owner of a major Hispanic company that does minority business with the District. To be Rodrigues or black is the same thing.

"Rodrigues and his brother Francisco own Fort Myer Construction Corp. in Arlington, which he said does more than $3 million in minority business with the city. He said his business also does another $41.5 million in the regular competitive market."

It is frankly unbelievable to me that this Congress would not know from three hundred years of failed efforts to use race in measuring the civil rights of people to have stopped it completely, and across the board. Yet, as the members of this Committee are well aware, among our current laws there are several which provide for racial discrimination and, indeed, require racial descrimination in the administration of several federal programs. They are not, respectfully, forms of "affirmative" action in any proper sense in relation to ending racial discrimination and relieving citizens of this country of a continuing anxiety that "their" race will be used by their own governments, federal, state, and local, to discriminate against them. There presence, moreover, drains away support for efforts to help disadvantaged persons generally, and they tend to discredit more genuine affirmative action undertakings of the kinds I described in the opening portion of my testimony. Respectfully, I would urge this Committee to prepare for Congress a new Act, succinct and unequivocal, forbidding any form of racial discrimination by the government of the United States, superseding all other laws of the United States insofar as they are inconsistent with this statute.

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AN ADDENDUM RESPECTING THE CURRENT CONSTITUTIONALITY OF RACIAL
DISCRIMINATION UNDER LAW

The preceding statement, and the preceding proposed Act of Congress forbidding any form of racial discrimination by the government of the United States, represent my best personal and professional recommendations to this Subcommittee. Among other witnesses appearing before you, however, not all take the same view. Among those urging the continuation of racial discrimination in the government of the United States, moreover, some will point out that popular misconceptions to the contrary notwithstanding, racial discrimination by the government is not now unconstitutional. In this respect, they are correct. Because the prevailing plurality within the Supreme Court finds no suitable basis for holding certain varieties of racial descrimination by government unconstitutional, moreover, some have also concluded that such discrimination may therefore even be desirable. In this respect, I think they are wholly mistaken. It may be useful to this Subcommittee to have some additional statement on this matter.

First, as a professional matter, I think it important to be clear and straightforward respecting the current constitutionality of government-directed racial discrimination in the United States. Briefly, the Court's majority position is essentially one of equivocal deference to the continuing discretion of this Congress to pursue experiments in racial discrimination.

În 1896, a Supreme Court majority declined to invalidate laws forbidding citizens to attend the same school or even to find seats in the same railroad passenger car, insofar as state legislatures "determined" that blacks and whites might be better off under such arrangement. This was the Court's view in Plessy v. Ferguson, the case that provoked the anguished dissent from Mr. Justice Harlan (previously quoted). In 1974, a Supreme Court majority declined similarly to invalidate a racial restriction eliminating, solely on reacial grounds, a white Jewish applicant from a state university law school. In holding the case to be moot (because lower courts had granted relief to the excluded student who would therefore, contrary to the law school's original efforts, be allowed to complete his education), the Court drew the dissent from Mr. Justice Douglas also noted earlier in this statement. In 1979, A Supreme Court majority declined to invalidate a racial limitation on the number of white students eligible for admission to a state university medical school. The controlling (singular) opinion by Mr. Justice Powell "held" that a citizen's race could be used by his own state government to exclude him from its institutions of higher learning if the state legislature were of the view that that exclusion would serve useful educational purposes. In 1944, a Supreme Court majority declined to invalidate the forced physical exclusion of more than 100,000 American citizens selected categorically and solely by race, when in the President's opinion such racial "relocation", without due process, was warranted in the interests of national defense. And in 1980, a Supreme Court majority declined to invalidate an act of Congress requiring that white citizens may be disqualified from bidding on federal contracts, if "their" racial "share" of such contracts had already been exhausted by other citizens of "their"

race.

So far as the Supreme Court is concerned, therefore, it is quite plain that government-directed racial discrimination is not now constitutionally forbidden. Rather, so long as the government's own racial discrimination comports with public interests that, at the time, the Court itself thinks not unreasonable to advance by racial laws (as it agreed in all of the cases noted above, in 1896, 1944, 1979, and 1980), the determination as to whether racial laws, differently indexing people by subrace, allocating contracts, university education and other resources by race, is solely a legislative prerogative.

This is not to say, of course, that the Court is of one mind. Indeed, in fact no point of view respecting the constitutionality of racial_discrimination by government commands more than three votes on the current Supreme Court. (More precisely, three Justices, Stevens, Stewart, and Rehnquist, would virtually never sustain racially discriminatory government practices; three Justices, Marshall, Brennan, and Blackmun, would usually sustain racially discriminatory practices against whites; the remaining three, Burger, White, and Powell, are somewhere between and effectively control the outcome of adjudication.)

Professor Sedler and other's who will appear before this Subcommittee are therefore correct in maintaining that the Constitution does not foreclose this Congress merely from taking race into account (which it might do, of course, without also using race as an explicit basis for discriminating between two or more persons). Indeed, the Constitution is not now interpreted by a majority of our Court to foreclose this Congress from explicitly, by law, fixing one person's legal rights as different from another's using race alone as the basis for "preferring" one and