result of the program there was a dramatic improvement in police/ community relations; there were fewer citizen complaints; there were fewer shootings of police officers; and, ultimately, there was a lower crime rate.

The equal participation by blacks in the police function most clearly serves the societal interest in effective law enforcement. There is the same societal interest in the equal participation of blacks in all aspects of government to insure that the government will be aware of the problems and needs of minority communities; that the Government, while making and implementing policy, will have the benefit of the perspective that comes from the experience of being black in America, helping to bring about confidence in the institutions of government on the part of the black community and the part of all people.

If we are to have the best government that it is possible to have, it must be a government that is representative of all the people, and it must include the substantial participation of blacks.

There is the same societal interest in the equal participation of blacks in law and medicine. Lawyers do much more than practice law. They are responsible for the administration of justice and for the legal system. Physicians do more than provide patient care. They are responsible for the administration of the health care delivery system. Again, this society needs substantial black participation in those crucial roles.

We need changes in the structure of the economic system, again, to bring blacks into the economic mainstream, to end the economic gap that exists between blacks and whites.

In the final analysis, in response to the question: Who needs affirmative action? I am going to answer: We all do. We need affirmative action so that we will have a racially equal society, so that we will have a racially just society, so that we will have a society in which blacks participate equally with whites in all aspects of American life.

Affirmative action does have its costs, but in the final analysis the costs of perpetuating racial inequality are much greater than the costs of affirmative action.

At this point in time, this Nation must come to grips with the present consequences of a long and tragic social history of racism. Affirmative action is necessary to bring about true racial equality and a truly just society.

Thank you, Mr. Chairman.

Senator HATCH. Thank you for a very articulate statement. Without objection, we will insert your prepared text at this point. [The prepared statement of Professor Sedler, with an attachment, follows:]

PREPARED STATEMENT OF PROF. ROBERT ALLEN SEDLER

Members of the Subcommittee: I am pleased to have the opportunity to address the Subcommittee on the subject of affirmative action. I believe that this is the most fundamental issue of equality that faces the nation today. The term, "affirmative action," may embrace a number of things, but the controversy over "affirmative action" relates to the use of race-conscious criteria, favoring blacks and other "nonwhite" groups, and gender criteria, favoring women, in the allocation of societal benefits, such as employment, university admission and the like. I will discuss affirmative action primarily in the context of the use of race-conscious criteria favoring blacks and other "non-white" groups and will develop what I believe to be

the primary justification for racial affirmative action. I will also show that there is a related justification for affirmative action in favor of women.

The primary justification for racial affirmative action, in my view, 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 inferiority established by law, of rampant discrimination in employment, of ghettoization, of segregated and tangibly inadequate schooling, and of the denial of access to societal power. Racial discrimination was often commanded by the government at all levels, and when it was not commanded, it was tolerated and encouraged. Private entities and individuals added their significant increment. Stated simply, racial discrimination and victimization of blacks was considered legitimate, and this was the way that American society traditionally dealt with black people, first as slaves, and then as "second-class" citizens.

The social history of racism was predicated on a belief in the moral inferiority of blacks, a belief that was necessary to justify the institution of chattel slavery, and a belief that persisted to justify massive racial discrimination and victimization throughout our history in all aspects of American life. 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. As was observed by the National Advisory Commission on Civil Disorders: "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." Justice Marshall summed it up succintly in the Bakke case when he said: "The experience of Negroes in America has been different in kind, not just in degree from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized by the Negro; because of his skin color he never even made it into the pot." Indeed, only in the last two decades has any real progress been made in halting much of the overt discrimination practiced against blacks in America. The consequences of the long and tragic social history of racism remain and perpetuate themselves. In 1968, the National Advisory Commission on Civil Disorders concluded that in America, there were "two societies, black and white, separate and unequal." In 1978, the United States Commission on Civil Rights published a report entitled "Social Indicators of Equality for Minorities and Women," which gave tangible and irrefutable demonstration to the pervasive and continuing societal inequality of blacks and whites. The commission found that while blacks as a group had made some gains in absolute terms according to a number of indicators of social wellbeing, there was little improvement in blacks' societal position in relation to whites. The same tangible and irrefutable demonstration of societal racial inequality is reflected in all the publications of the Census Bureau and every other governmental agency that collects racial information.

We may briefly review some of the now all too familiar and depressing evidence showing the present consequences of the social history of racism. First there is the economic gap between blacks and whites. The unemployment rate for blacks has consistently been over double that for whites. In 1976, the unemployment rate for black males stood at 15.9 percent, compared to 5.9 percent for white males; for black women it was 18.9 percent, compared to 8.7 percent for white women. The disparity was even greater for black teenagers, with 47.8 percent of the black males and 51.3 percent of the black females in the 16 to 19 year old range unemployed, compared to 5.9 percent and 19.2 percent for white male and females in that age range. Today, in the midst of a depressed economy, the gap is likely to be even worse.

Among the blacks who are employed, a disproportionate number are found in the low-paying, low-prestige occupational categories. In 1976, for example, 34.7 percent of the nonwhite work force (this includes Asian-Americans who are adequately represented in the higher-paying, higher prestige occupational categories) were employed in "white-collar" occupations compared to 51.8 percent of white workers. Conversely, 25.4 percent of nonwhite workers were employed in "service" occupations, including household help, while only 12.3 percent of white workers were so employed. Even within the "blue collar" category, where the distribution of blacks and whites is more even, blacks are disproportionately concentrated in the least desirable occupations.

The end result is a most significant income gap between blacks and whites. Median black family income is approximately 60 percent of white family income, a

figure that has remained constant for a long time. The disparity in median household per capita income is even greater; as of 1975, black median household per capita income was only 52 percent that of whites. A much greater percentage of black families than white families live below the federally-defined poverty level. In 1976, 28.2 percent of all blacks lived in families whose income was below the poverty level, compared to 7.5 percent of all whites. The gap is even starker for children. As of 1975, over 40 percent of black children were growing up in families with income below the poverty level compared with 11 percent of white children. Finally, blacks enjoy much less upward mobility in income than do whites; the earnings increment by age for black males, for example, is half that of white males. One of the most pronounced consequences of the social history of racism then is a very significant economic gap between blacks and whites.

Another pronounced consequence of the social history of racism is an educational gap between blacks and whites. Blacks continue to lag behind whites in the level of education attained. According to the Census Bureau, as of 1976, the median number of school years completed by black males over age 25 was 10.8, compared to 12.5 for white males. The median number for black women over age 25 was 11.4 years compared to 12.4 for white women. A black American in 1976 was only 32 percent as likely to graduate from college and only 85 percent as likely to graduate from high school as his or her white counterpart.

When the quality of education received by blacks is considered, the gap grows even wider. Recent studies show that in urban areas, where over three-quarters of the black population now live, there is marked discrimination in educational expenditures between low income, predominantly nonwhite neighborhoods and wealthier, predominantly white neighborhoods, even within the same school district. As between the urban school districts, an increasing number of which are predominantly nonwhite, and the virtually all-white suburban school districts, the disparity in expenditures and in the quality of education offered is still greater. A 1977 study by the Office of Education found that only 58 percent of black 17-year-olds were functionally literate compared to 87 percent of white 17-year-olds. By the time that black males reach high school, they are more than twice as likely to be two or more grades behind in school than their white peers. The quality differential carries over into higher education, where blacks are much more likely to be attending poorly rated colleges than are whites.

The economic gap and the educational gap are mutually reinforcing, and perpetuate each other. There is a direct correlation between economic condition and academic performance, even if everything else is equal. Children from economically advantaged homes as a group, who start out with educational advantages, have a much higher level of academic achievement than do children from economically disadvantaged homes as a group. Because so many black children grow up in poverty and low-income homes in comparison to white children, that whites as a group will have a significant "educational lead" over blacks as a group is foreordained even before the children start school.

The built-in educational handicap that black children as a group start out with is aggravated by the fact that the great majority of them have received all or part of their education in predominantly black and thus predominantly lower-income schools. Apart from the socio-economic status of the individual child, the next most important determinant of academic achievement is the socio-economic composition of the classroom in which the child is enrolled. The academic performance level of all children enrolled in classrooms in which economically advantaged children predominate is, on the average, considerably higher than the academic performance level of those enrolled in classrooms in which economically disadvantaged children predominate. The "double built-in" educational handicap of black children as a group is aggravated still further by the overall tangible inequality between predominantly black schools and predominantly white schools, as discussed above.

Low educational attainment, caused in large part by economically disadvantaged status and attendance at schools in which economically disadvantaged children predominate, in turn has a severe detrimental impact, when the children become adults, on their economic status, social mobility and other indicia of social wellbeing. Thus, poorly educated black children find themselves as adults in low-status, low-paying jobs, and their depressed economic condition adversely affects the educational opportunities of their children. Thus the cycle of poverty and inequality is perpetuated from one generation to another.

The third pronounced consequence of the social history of racism is the power gap. Blacks are seriously underrepresented in the "elite" professions, in positions of societal power, and in the "economic mainstream." Although the black population of the United States is close to 12 percent, less than 3 percent of all physicians and less than 2 percent of all lawyers are black. The absence of blacks in the top

management of America's corporations needs no documentation. Blacks are equally underrepresented in the top levels of the governmental bureaucracy and educational institutions. There are relatively few black-owned business enterprises, and such existing enterprises do not generate a significant amount of business volume. As of 1976, only 3 percent of the 13 million businesses in the United States were owned by by blacks and other minority persons, and of the $2.54 trillion in annual gross business receipts, only about $16.6 billion, or 0.65 percent of the total, were realized by minority-owned businesses. We still hear about, "the first black person to "There is then an enormous power gap between blacks and whites in this nation, and blacks do not in any way share equally in the exercise of societal power. As stated previously, it is only in the last two decades that any real progress had been made in halting the overt discrimination against blacks in American society. During this time, the struggle for racial equality concentrated almost entirely on attacking the existing structure of societal racism, in order to remove the structural impediments that denied equality to blacks. From a legal standpoint, this struggle has been largely successful. The Constitution has now been interpreted to prohibit state-imposed segregation and other traditional forms of intentional discrimination against blacks. Federal laws prohibit racial discrimination in voting, employment, public accommodations and housing, and similar protection is afforded by the laws of many states. This means that there is now a system of prevention. The law prohibits present discrimination against blacks and provides remedies for such discrimination.

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. This is why affirmative action is necessary, and this is why it is justified. It is only by affirmative action, by the use of race-conscious criteria favoring blacks, that we will be able to make any progress toward undoing the present consequences of the social history of racism and to come anywhere near to achieving genuine racial equality in American society. The consequences of the social history of racism are, as has been demonstrated, self-perpetuating and selfreinforcing. The same factors that have created a societal condition of racial inequality, of "two societies, black and white, separate and unequal," will, if not redressed directly and concretely by affirmative action, cause that condition to continue for the remotely foreseeable future.

I will try to explain in some detail why affirmative action is necessary to bring an end to societal racial inequality and to insure the full and equal participation of blacks in all aspects of American life. I will use as illustrations the three situations that were presented in the affirmative action cases that have been decided by the Supreme Court: medical school admissions, which was involved in Bakke, entrance into the skilled crafts, which was involved in Weber, and participation in the governmental marketplace, which was involved in Fullilove. In all of these situations it is clear that the present consequences of the social history of racism leave blacks as a group at a tremendous disadvantage in comparison with whites as a group with respect to the ability to obtain the benefit in question, so that if racially neutral criteria were strictly followed-if affirmative action were not employedblacks would be substantially denied access to the benefit.

In the context of admission to medical school, the racial disadvantage is the result of the educational gap that exists between blacks and whites. The number of fully qualified applicants for medical school vastly exceeds the number of available places. At the Davis medical school, for example, there were 3,737 applicants for 100 available places in the 1974 entering class. The approach to medical school admission on the part of the medical schools has been to determine which of the many qualified applicants are the "most qualified" in relation to each other. Since the probability of academic success, particularly at a high level, is a major objective of the selection process, it is not surprising that the selection is made primarily on the basis of comparative predictors of academic performance, such as college grades and standardized achievement test scores. While many of the black applicants are fully qualified in the sense that their college grades and achievement test scores indicate that they can successfully complete the academic work, given the significant educational gap between blacks as a group and whites as a group, the objective academic indicator scores of the white applicants as a group are likely in the aggregate to be much higher than the objective academic indicator scores of black applicants as a group. This does not mean that the black applicants as a group are any less intelligent or any less industrious than the white applicants as a group. It simply means that whites as a group are much better educated than blacks as a group and have derived much more benefit from the system of education in this nation. Thus if

race is not affirmatively taken into account, and if the selection is made on comparative objective academic indicator scores alone or any other racially neutral factor reflecting the quality of an applicant's education, few if any black applicants will be admitted. This in turn means that nothing will be done to alleviate the serious underrepresentation of blacks in the medical profession.

It has been argued that it is not necessary to use race-conscious criteria in order to obtain the admission of a substantial number of black students, that this goal could be accomplished if the admission criteria were made more subjective and put less reliance on comparative academic indicator scores. Leaving aside the question of precisely how the admission criteria should be made more subjective and whether this is really feasible, the fact remains that if this were done, the result would be to exclude substantially the same number of white applicants that are now being excluded because of affirmative action programs. The cost of increasing the number of black medical students would still be borne by white applicants, and the "injury” to them is the same whether race-conscious criteria are used directly, or whether the racial objective is achieved by purportedly neutral means. And if the goal of changing the existing admission criteria is to increase the number of black students, it is realistic to assume that whatever subjective criteria were adopted would be skewed so that this goal could be achieved. It seems to me that it is much more desirable, if the goal is a racial one, for the medical school to be "up front" about what it is doing, and to use race-conscious criteria to select what it considers to be the "most qualified" black applicants and the "most qualified" white applicants. It has also been argued that since so many blacks come from economically disadvantaged backgrounds, if the medical school were to admit a certain number of "economically disadvantaged" students, this would bring about the admission of a reasonable number of black students. It wouldn't for two reasons. First, while proportionately there is a substantially higher incidence of economic disadvantage among blacks as a group than among whites as a group, in strict numbers termswhich is what is important here there are more economically disadvantaged whites than there are economically disadvantaged blacks. In 1974, for example, there were 6.2 million white children under 18 years of age in families below lowincome level compared to 4.0 million non-white children, although only 11.2 percent of all white children were in families below low-income level, compared to 40 percent of all black children. Even if everything else where equal, there would still be a much higher number of whites competing for the "disadvantaged" places than blacks. Second, and even more important, economically disadvantaged whites as a group have not suffered the same degree of educational disadvantage as have blacks as a group. This is so in part because whites are likely to have attended predominantly white and thus predominantly advantaged schools, both in terms of social class composition and tangible quality. The empirical data clearly shows that the academic achievement levels of economically disadvantaged whites as a group are higher than those of economically disadvantaged blacks as a group. The use of the "disadvantaged" criterion then will most certainly favor "disadvantaged" whites, and is not likely to result in the admission of a substantial number of black applicants.

Thus, if blacks are to be admitted to medical school in any reasonable numbers, race-conscious criteria will have to be employed, either directly under an affirmative action program, or by subterfuge, using more subjective admission standards, but skewing them to favor black applicants. It seems far preferable for the medical schools to be honest about what they are doing and more rational for them to use race-conscious criteria directly to select what they believe are the "most qualified" students of both races.

What has been said about admission to medical schools is equally applicable to admission to law schools. Law schools too have a surplus of qualified applicants, and although the objective academic indicator scores of many black applicants are higher than the objective academic indicator scores of many white applicants who were admitted 15 and 20 years ago (and who graduated and became lawyers), if race is not affirmatively taken into account, relatively few blacks will be admitted in most law schools today. Thus the failure to employ affirmative action in determining admission to medical school and law school will result in the substantial exclusion of black applicants and the continued underrepresentation of blacks in the medical and legal professions.

The educational gap between blacks and whites operates to disproportionately exclude blacks whenever eligibility for any position depends on comparative test scores, such as those on a civil service examination or any other standardized test. Any examination will to a large degree be testing the quality of the examinee's prior education, and in light of the educational gap, the test scores of black applicants as a group are likely to be significantly lower than those of white applicants