I absolutely agree with Mr. Atkins on that question. I don't think we should back off that. I think we should say that when it is appropriate, it is something that should be used. It is a measure that is available for use. And we should not try to fudge that issue, because I think that in the long run would be destructive. I think that the important thing to remember is that we want to make the public aware that affirmative measures-and when the discriminatory process ends-and that without affirmative intervention the discriminatory process may never end. Indeed, we've gotten some examples around the table here about the kinds of inroads that have been made because of affirmative action measures in this country.

I will give you a personal example as someone at this table just did. I went to law school in the 1970s. I entered law school in 1969. I graduated college in 1956, however, and in 1956 there were 150 Puerto Rican lawyers in New York City. When I went to law school in 1969, there were still 150 lawyers in New York City that were Puerto Rican. And between 1969 when there were approximately 70 Puerto Rican law students around the country in all 3 years and 1978, the latest ABA statistics have been increased to 444 in all 3 years. And we believe at this point there is a pool of at least 500 lawyers in the New York City area. So we're talking about work that has been done in the last couple of decades that is terribly important, that should be supported, and it is important for this Commission to make sure that message gets across.

Affirmative action is a way of dealing with past discrimination; it is a way of correcting and remedying, and there are occasions when it is absolutely appropriate to use quotas, goals. I don't think those words are dirty words. I know they have been used that way and perhaps, if you want to use your terminology, your process remedy, fine, you know, but I think it is just another word for the very same thing.

Thank you very much.

MR. HARTOG. Thank you, Ms. Taracido. Chairman Flemming?

Discussion

CHAIRMAN FLEMMING. First of all, I would like to express to all of the members of the panel our very deep appreciation for these presentations. They have been very, very helpful. And at this point we would like to engage in a dialogue.

COMMISSIONER SALTZMAN. Thank you, Mr. Chairman. I would like to express my appreciation for the very positive responses to this statement by all of you. It is very gratifying. I think we labored over practically every single word as if it were a contract we were negotiating with some of our Iranian counterparts, perhaps, for the release of hostages. In this case the hostages, perhaps, are the Nation, hostaged to former patterns of discrimination, and so your kind words about this, I'm sure, are very deeply appreciated by all of us and the staff.

I just would like to express a concern I have. I am not sure that we would promote the purposes of this statement by dismissing those who are opposed to it, implying that either they lack the intellectual comprehension and intelligence to appreciate the rationality and logic of what we have seen and they are beclouded in their ignorance, or that they are essentially bigots. There are some distinguished scholars, legal minds, who have set forth a point of view that some aspects of affirmative action endanger some of the premises of our society, and I do think we have to look seriously and respond seriously. And I think this is an attempt, albeit perhaps not as deeply rooted in the philosophical framework that some statements have reflected-but we have attempted to respond to the legitimacy of their arguments with our, hopefully, equally legitimate arguments to counteract what they seem to see in affirmative action as a danger to American society. I guess, as has been pointed out, group entitlements, the danger to the meritocracy of American society, etc., are the points with which they take great issue, and I think we have to respond to that as carefully and as thoughtfully as we can. We ought not, I mean to say, trivialize their objection and, if this is not an adequate response, that's what I would like to know, because I think that's what I am most deeply concerned about.

I don't think and I am not sure you were saying this, Ms. Taracido-we were afraid to use the words "quota" or "preferential treatment," or whatever the words have been, upon which some of the opposi

tion has been based. Indeed, I think we do say in some places that it is appropriate to use a quota. I think my own concern and sensitivity is that we must maintain a broad coalition in this Nation which accepts and which is committed to the objectives of the civil rights aspirations that we have, and that affirmative action and the issue of quotas has been one of the issues around which that coalition has been dismantled. And I think we have to re-create that coalition for continued progress.

I would like it if the panelists would address these issues that I suggest are the core of the opposition and evaluate their response to that opposition, specifically, that quotas, when they are used, endanger the merit system. And I know there were some responses to that in the various remarks, and that preferential treatment, which I think I would note in the examples given-say it is right just because President Reagan is using preference in his appointments, or colleges give preference to alumni-I am not going to accede to the rightness or the morality of that kind of process-which ultimately becomes discriminatory, and then the argument is made: are we not sacrificing the ends ourselves by using means against which we object?

I think we have tried to respond in this, and I wonder whether there are any further responses on some of these crucial focal points that the opposition has made, by the panelists?

CHAIRMAN FLEMMING. This is a kind of general invitation to the members of the panel. Commissioner Saltzman is sharing with you some of his concerns as he has shared them with us as we worked on the statement, as we have discussed these matters together as members of the Commission. As he has indicated, you have touched, you have referred-a number of the members of the panel-to the issues that he has identified. I am hoping you just pick up where he has left off here and share with us any further views you have on the kinds of issues that he has identified.

MS. TARACIDO. It seems to me that the best one can do, even though we are dealing with a very emotionally laden issue-and I know when I said that quotas and goals are not a dirty word from my perspective, but I know they are from other people's perspectives-but the best it seems you can do is give the rational underpinnings for why these things are allowed.

COMMISSIONER SALTZMAN. You said we ought not to fudge. Do you think we fudge here?

Ms. TARACIDO. Well, I have mixed feelings about it because I know what you're trying to do. You are trying to diffuse; you are trying to use another set of circumstances or a new terminology to try to get away from the dirty words, you know, the words that may have made people very unhappy, and I can understand your wanting to do that and, indeed, I think it probably appropriate because it is time for us to try to look at the issues from the perspective that you are suggesting anyway, which is, what is the problem and how can we best achieve equity, you know, what are the considerations that one should have in dealing with that issue?

However, it seems to me that the lay public has to be the lay public. I'm sorry, but I'm talking about a document that, hopefully, is going to be circulated very broadly, and I would like that public to understand that there are legal reasons why you can use a quota or a goal as one of the affirmative measures, using your language, to address the question of discrimination. I think that that has to be put up front. We have to let people know that if you argue that it is going to affect the quality or the merit of the applicants that you get, that that's wrong. If you are saying it is going to trample on the rights of whites, that's wrong, because there are cases that indicate you cannot do certain kinds of things. For example, bumping, you know. That argument must be right there.

COMMISSIONER SALTZMAN. Don't you find it

here?

MS. TARACIDO. It's there. But when I talked about my comments on part C, I was talking not about the substance; I was talking about the organization of the material and the focus of the material and how the arguments are presented. The arguments are confusing, I think. I think people can miss what you are trying to say around those questions. That's what I think. It is a personal opinion. There may be others that disagree.

Maybe it is clear as glass for certain people. I don't think it is clear as glass, frankly, so that's the reason I am commenting in this way. I think it is very important to be very, very clear. This is an important document. We are going into very hard times and, you know, we have to be able to explain why, although it seems that things have been going on for long time and life has continued in a way that, presumably, should have corrected and remedied discrimination. It has not and that message must be clear-that it has not.

CHAIRMAN FLEMMING. Mr. Atkins?

MR. ATKINS. Yes, Commissioner Saltzman, I think that you fudge, in answer to your question, on the issue of the use of quotas. I think there is fudging and I think-I understand the discussion that is reflected here and part of the problem I have is that in responding to those who have criticized affirmative action plans, as your statement does-and I think contributes significantly to this general discussion. You concede too much. You concede, for instance, in responding to those who attack affirmative action as somehow jeopardizing or threatening a meritocracy. You concede that there was one and there ain't been one.

This country has not been run on a meritocracy, and to begin an argument about, or defense of, affirmative action on the grounds that it does not needlessly or unnecessarily undermine the meritocracy that has existed concedes too much. What meritocracy? I haven't seen it at the local level; I haven't seen it at the State level; I haven't seen it at the Federal level; I haven't seen it in the private sector; I haven't seen it in the public sector; I haven't seen it in the schools; I haven't seen it in government service of any type. There has been no meritocracy in this country.

What we are talking about here is not whether or not there will be preference, but for whom, and how it will be arrived at-and affirmative action plans suffer precisely because their premises are outfront and explicit, whereas the previous preference systems have been implicit ones, and they have been around so long that they have come to be taken as articles of faith.

Yes, I believe, because of accepting to an extent, almost an article of faith, the prior existence of merit systems, there's fudging. I also think that the importance of re-creating, maintaining, and strengthening, whichever status it is now, the civil rights coalition is every bit as important as you have described it. It is terribly important that a means be found. It cannot, however, be done at the risk of proceeding to a least common denominator level. We cannot re-create that coalition by conceding, as it were, that affirmative action measureably put forward will not be a centerpiece of the thrust of the civil rights movement.

We face an economy that is bad and getting worse, and disproportionately, and almost with a vengeance, impacts minorities and poor people. And in that context affirmative action is a centerpeice of

the civil rights thrust, and to the extent there are those who have difficulty grappling with how affirmative action will be pursued, then let's tackle that. Let's try to work that out. I don't care what we call it. If that's a problem, call it something else; call it "popcorn." But the issue cannot be sacrificed, because it is too important and I think that, to the extent the Commission has-and I believe you have in this statement-addressed this issue-my call to you is for emphasis, a greater emphasis on the permissibility of numerical measurement. Let those who oppose call it what they want to. They are going to call it what they want to anyway.

We're not going to be able to change the dialog about that, and I'm not particularly concerned. We have tried for years to convince the public that when courts order desegregation, it is not forced busing. We haven't convinced a single one of the Congressmen who vote every time a bill or amendment or rider comes up to change their mind, and we are not going to change it, because the use of the term "forced busing," like the use of the term "quota," is a tactical device. They use the term precisely to put you and us on the defensive, and we simply refuse to be on the defensive about it. They can call it what they want to.

MR. MARK. I would like to commend the Commission on their attempt in the report to make a distinction about how discrimination has-not distinction so much, but that they tried to explain how whites are possibly injured by affirmative action in the sense you make a distinction between expectancy and whites as a class, and I think that should be developed more and explained more to counter some of the misconceptions about affirmative action. But no one should delude themselves into thinking there will be individual whites who will have their expectancy harmed by affirmative action. But we should look, overall, in the main of society, that affirmative action has actually improved the opportunities not only for minorities but for white people as well.

There is increased enrollment in law schools, where many seats are taken by not only minorities but whites as well, and I think throughout the society where there is growth in different industries or areas, minorities are not taking positions or jobs away from white people. They are taking their share of the increase, and I think that's the way we should look at it.

CHAIRMAN FLEMMING. Vice Chairman Berry?

VICE CHAIRMAN BERRY. Thank you very much, Mr. Chairman.

Mr. Greenberg, you referred to what you call some of the social factors relating to this whole issue, and in your discussion I think you said something like: "affirmative action is the only game in town," and you talked about the continuing economic problems that blacks, in particular, face: the income disparity, the youth unemployment problem, and the like.

I know you are aware that there are a number of people who say that because affirmative action is the only game in town, these economic disparities persist and that, in effect, if we were to focus our attention on some other matters, such as economic incentives and the like, that these disparities might not persist, and that we should not applaud the fact that affirmative action is the only game in town, as I inferred you were doing, but we should decry that and simply focus our efforts elsewhere.

Do you have any response to that?

MR. GREENBERG. Well, I'm not applauding it as the only positive factor that we see at this time. I am merely pointing out that that is a very powerful reason why it should not be scrapped, and there are a lot of arguments being made that affirmative action programs should now be dismantled.

Of course, I believe that a variety of other measures must be taken by government and private persons, private agencies, with regard to employment and so forth. I am not an economist and wouldn't have a clue as to which of the many cures being offered are the best to be adopted.

I guess I have some political and personal preferences. I think a lot of things should be done. My remarks were addressed to those who now want to dismantle existing affirmative action programs with the commencement of the new administration. They say, "Let's do away with affirmative action," and all I am saying that is going to do away with the only thing that is really working successfully, as far as I know, for minorities at this time. I wish there were more things working successfully, and I would be much more in favor of it.

VICE CHAIRMAN BERRY. Do you have any notion as to whether, under the Executive order perhaps, or in some of the laws on affirmative action, it would be possible to target efforts on what is now called "the underclass," those people who are unemployed and the like? Is there some way to interpret

affirmative action so that one can focus on those specific groups of people in a legal way?

MR. GREENBERG. I am certain you could do that. The CETA programs, which I understand are to be dismantled, I think do that in a way. I know in our office, for example, we have hired CETA workers who we would never be able to hire, who would otherwise not be able to obtain employment, and that was, I think, that was one of many ways in which there is a targeting of disadvantaged groups, economically, racially, and otherwise. So there are a lot of ways of doing that.

VICE CHAIRMAN BERRY. To be more specific about what I mean, could one, for example, under the Executive order program, establish goals and timetables for blacks or Hispanics who are members of the underclass?

MR. GREENBERG. I'm certain you could, yes. It depends on how you fashioned it and what the justifications were. I'm sure that for many situations it could be done, yes.

VICE CHAIRMAN BERRY. Does anyone else care to answer?

Mr. Atkins?

MR. ATKINS. To the extent that, Commissioner Berry, your question is, could the Executive order and its implementation be more greatly focused on the needs and disabilities impacting this economic underclass, I think the answer is yes. To the extent your question is whether or not there ought to be a refocusing of the effort, I think the answer must be no. The reality is that racial minorities and women, in differing ways and to differing extents and circumstances that vary, face these problems, whatever their situation may be, and it is not adequate to say that we should focus our effort only on those who are the most disadvantaged, because it becomes very difficult, in our society as race conscious as it is, to single out and calibrate the degree of disadvantage and say we're going to give a score of 100 percent disadvantage on this and 83 on this one and 75 on this one.

The affirmative action efforts must be aimed at eliminating the disadvantages and the disabilities, wherever they are, to those who have been able, by one means or another, to prepare themselves through training programs and/or academic preparation, to take off, then eliminate that small barrier that prevents their takeoff. For those who have been precluded from getting in the door of the training program or getting out of the high school because of

racially discriminatory public education systemsthen address those.

I think the answer is yes, it can be more greatly targeted, but they cannot be targeted in an effort that is characterized by some enshrining of a trickledown theory. It is not going to trickle down to us. VICE CHAIRMAN BERRY. So affirmative action, indeed, if I understand you correctly, is designed for middle-class people and their aspirations.

MR. ATKINS. No. I'm saying affirmative action has to be designed for disadvantaged people wherever they may be, middle income, lower income, under lower income, and it would be a fallacy to think that any of us here, or anybody else I've seen on the scene, has the capacity to identify that one sector of our society which alone needs this help. We simply have not reached that Nirvana yet.

Let me say one other thing. I think that it is not possible to pursue effective affirmative action efforts without unsettling the expectation of white males in this country. It is not possible to do that. We do not accept the notion that affirmative action should work only where there is an expanding pie. That locks in to an unacceptable extent the present effects of the past discrimination. We want to address that great bulk of the jobs where people are benefiting because of illicit expectations built up by the very interlocking system of discrimination which your report, in the first section, so adequately describes.

It is not possible for women and minorities to make gains in this country without there being a challenge to the expectancy of white males, because they have expected to benefit from the continuation of a discriminatory system.

VICE CHAIRMAN BERRY. Thank you, Mr. Atkins. Ms. Lichtman, just one question related to your discontent with the paragraph on page 13. It seems to me, if I understand it correctly, that with the possible exception of changing the word "will" to "may enjoy," instead of "will enjoy," "women may enjoy," that this paragraph reflects information in some of the Commission's reports on social indicators and other economic data that we are familiar with, which indicates that, by and large, white males have greater incomes than minority-group males and that most white women who are married or who are white women or even the children of white malesor if they are married, they do, indeed, marry white males. So, although I understand your point that one cannot assume that because someone is a white female, one, indeed, is married, can stay married,

and has married someone who has a high income, that if one were to change the word "will" to "may," that, in fact, a difference which does exist, is distinguished appropriately in the paragraph.

MS. LICHTMAN. That won't do it for me, and the reason it won't do it is that I don't view that status as a sponsorship of enjoyment. I view it as a cage. I think that goes to the very essence of sexism in America. It limits a woman's choices. A white woman's choice, perforce, psychologically, intellectually, economically, any way you want to count it, to know that she's got to, she must link her future to the existence of that white male, either the father or the husband, and to talk about that as enjoyment and not as the cage, that pedestal becomes a cage. I have a lot of trouble talking about that relationship as sexual security when I view it as bondage.

VICE CHAIRMAN BERRY. Well, I don't-I was only pointing out that does reflect certain economic data and it does not indicate that women are happy with the situation; it simply indicates that the cycle of poverty and discrimination does not-was not as taken hold in that regard.

Ms. LICHTMAN. When you look at the economic statistics of the earning power of women, everything I've ever seen says that it goes men to women and that white women earn less than men, considerably less than men, and minority women earn even less than white women.

VICE CHAIRMAN BERRY. Sure.

MS. LICHTMAN. And to talk about that relationship of women to men as somehow benefiting those white women, I just don't understand it. I mean, I don't understand it. I don't understand your economic indicators.

If women, as a group, are earning less than men, as a group, white women cannot have it so good just because they are tied to those white men.

VICE CHAIRMAN BERRY. Well, I have no pride in the paragraph of authorship or otherwise. MS. LICHTMAN. Good.

VICE CHAIRMAN BERRY. I simply wanted to point out, it did reflect that. I think whether it is included or not is partly a political question—

MS. LICHTMAN. I think it is a divisive paragraph. VICE CHAIRMAN BERRY. -which relates to a point made earlier by two of your colleagues, as to whether we ought to distinguish differences and tailor remedies for different groups and talk about minorities separately, women separately, and the like.