Proceedings

March 10, 1981

CHAIRMAN FLEMMING. I will ask the meeting to come to order. My name is Arthur S. Flemming, Chairman of the United States Commission on Civil Rights. I wish to welcome you to this consultation. The other members of this Commission are Vice Chair Mary Frances Berry, professor of history and law and senior fellow at the Institute for the Study of Educational Policy at Howard University, Washington, D.C.; Stephen Horn, president of California State University, Long Beach; Blandina Cardenas Ramirez, director of development at the InterCultural Research Association, San Antonio; Jill S. Ruckelshaus, former special assistant to the President for women's affairs, Washington, D.C.; and Murray Saltzman, rabbi, Baltimore Hebrew Congregation, Baltimore. Louis Nunez is the Staff Director of the Commission.

Today's session is the second part of the Commission's consultation on its proposed statement, Affirmative Action in the 1980s: Dismantling the Process of Discrimination. The first session was held on February 10, at which time the Commission heard from five distinguished legal experts from major civil rights organizations. They assessed the Commission's proposed statement on affirmative action from a legal perspective.

Today's participants will assess the proposed statement from policy and enforcement perspectives. On March 11, 1981, participants will address the design and implementation of affirmative action plans and how to monitor and evaluate them once they are in place. Based on the presentations at the consultation, the Commission will review the proposed document and issue a final statement, accompanied by a transcript of this consultation, in the fall of 1981.

In order to explain to today's audience the purpose of this consultation, I will repeat the remarks I made at our opening session in February.

As you may know, the proposed statement is the third document dealing specifically with affirmative action that this Commission has issued in the past 8 years. During that time, the issue of affirmative action has been extensively debated within all parts of the government and throughout the private

sector.

That public debate has often been acrimonious, particularly over such terms as "goals," "quotas,” and other types of "preferential treatment." These terms arouse strong emotions, and, perhaps because of this, the debate surrounding them has frequently centered on the terms themselves rather than on what are the most effective methods for combatting discrimination.

Although few people today argue against working toward the goal of nondiscrimination, people will disagree about how to go about identifying and combatting discrimination. Our goal, and that of the proposed statement, is to make that disagreement productive, rather than destructive. Determining whether the proposed statement brings us closer to achieving that goal is the purpose of this consultation. We are optimistic about the proposed statement's usefulness, but we believe, as we state in the preface of the proposed statement, that its approach needs to be tested in the "court of public opinion and real world activities." For this reason we are distributing the statement widely and we welcome comments in writing from any interested persons or groups.

In this draft statement, Affirmative Action in the 1980s, the Commission proposes a "problem-remedy" approach to affirmative action. This conceptual approach to affirmative action endeavors to link an understanding of affirmative action with an understanding of the problem of discrimination. The premise of the proposed statement is that consensus on the remedy of affirmative action can best be achieved through consensus on the nature and extent of the contemporary problem of discrimination based on race, sex, and national origin.

We are deeply indebted to the Office of General Counsel for the work that has gone into this draft. The Commission itself has considered it on a number of occasions, and I am going to ask Mr. Jack Hartog, from the Office of General Counsel, who has done a great deal of work on this, to introduce our guests of the morning to the Commission, but I just want to personally welcome them as a group and tell them how indebted we are to them for their willingness to help us in dealing with this very difficult issue.

Mr. Hartog?

Assessments of Affirmative Action in the 1980s from a Policy Perspective

MR. HARTOG. Thank you, Mr. Chairman.

Good morning. I would like to welcome our panelists. They are Mr. Morris B. Abram, Dr. John Bunzel, Dr. Kenneth Clark, Dr. Joe Feagin, and Dr. Isabel Sawhill.

As is standard Commission procedure at its consultations, each panelist will be given up to 15 minutes to deliver an oral presentation to the Commission on the subject matter of the consultation. All our panelists have prepared or are preparing comments on the proposed statement on affirmative action, and these comments, as well as the remarks this morning, will be made part of the record of this proceeding.

We will proceed according to the order on the agenda. Our first speaker this morning commenting on the proposed statement will be Mr. Morris B. Abram, who is a partner in the law firm of Paul, Weiss, Rifkind, Wharton and Garrison in New York City. He was president of Brandeis University from 1968 to 1970 and has served as president of the Field Foundation since 1965.

Mr. Abram's distinguished career of public and community involvement has included serving as the first general counsel to the Peace Corps, president of the American Jewish Committee, United States Representative to the United Nations' Commission on Human Rights, and cochairman of the planning conference for the White House Conference on Civil Rights in 1965. He currently is Chairman of the President's Commission for the Study of Ethical Problems in Medical Care and Bio-Medical and Behavioral Research.

Mr. Abram is coauthor of a monograph entitled "How to Stop Violence in Your Community," which has become the model for legislation in 5 Southern States and 50 cities to curb the threatening activities of the Ku Klux Klan.

He was a Rhodes Scholar in 1948 and holds bachelor's degrees from the University of Georgia and from Oxford University. He is a graduate of the University of Chicago School of Law.

Mr. Abram, it is a pleasure to have you with us.

Statement of Morris B. Abram, Partner, Paul,
Weiss, Rifkind, Wharton and Garrison

MR. ABRAM. Thank you, Mr. Hartog. Mr. Chairman, members of the Commission: I wish that all of us-I'm sure on this side of the room and throughout

the city-would like to pay honor to the principles which brought this Commission into being. I can remember very well during the days when I lived in Atlanta, and which were the days of your genesis, with what joy and satisfaction those of us who were waging the civil rights struggle in the South greeted the establishment of this body.

Now, I turn to the statement because my time is short. The proposal is a piece, in my judgment, of social engineering of great proportions which would have dire consequences for this country. Our concern and the concern of the authors of the statement, of course, arose from the battle against real discrimination-the fact that this country had a history of not treating men and women as equals before the law, both human and natural.

I and others who fought in this battle, early, never had the thought that we were fighting for a world in which society's benefits would be assigned on the basis of classifications which we declared to be indivious and odious, that is, by race, by religion, by ethnic origin, or by sex.

The proposal, therefore, is the very antithesis of all our struggle. It fights and rejects the principle of neutrality of people before the law. It is directed against the principles of merit in the Federal civil service and throughout life; it will be a break on productivity which we so sorely need so that we can have a larger pie that fairly distributes. And it targets a limited group-white males as the group— against which all relief must be sought, failing to bear in mind that white males-for example, the Appalachians-are some of the poorest members of our society.

How did we get to this position in which such a proposal could be regarded as something to be considered by the Commission on Civil Rights? Well, we were faced in this country by a history of exclusion by race and by gender. Men and women were excluded from juries and from voting and they were excluded from jobs. And in these cases the fact that there was disparate impact proved, almost beyond a reasonable doubt, that there was discrimination.

How could one in my hometown of Fitzgerald, Georgia, have a jury of no blacks when 40 percent of the persons were black? Obviously, that meant discrimination. And so it was with voting. So, once we began to wipe out the discrimination against race and gender in these areas in which people are people and fungible and no particular skill is required and

impact presents a picture of discrimination, then the discriminators devised tests-grandfather clauses in the case of voting, educational tests in other instances. And then job tests, which were not related to the job as, for example, in Griggs and Albemarle, two Supreme Court cases. Griggs, bear in mind, involved coal handlers, just like voters. If you have coal handlers in the Duke power region that has 30 percent black and only 2 percent are employed who are black, obviously, there is discrimination.

My own firm recently took a case against the International Paper Company, which was a production line case in which the fact of discrimination is shown clearly by the failure to have anything other than a fairly even impact.

But, undeniably, those considerations do not apply in athletics. Jack Robinson did not get into the major leagues because he was a black, but because he was a fine athlete.

Such considerations of randomness do not apply to college professors. The Supreme Court recognized that and the court of appeals did in Lieberman. Randomness is not present even in typing. Some people do type better than others and most can learn to type as well as others, but a typist has to type. It does not apply as a test, a real test, in the merit system, but if randomness is the route and all tests are suspect and that's where you come out, then you make proportionate hiring and proportionate passing the route. And even if a proper test is established that is without the purpose of discrimination, and if the impact is adverse, then you say, "Well, oh, sure you can validate it.”

Now, validation inevitably (in the field involving qualifications where randomness is not the natural order of things) produces a quota. Justice Blackmun, in Albemarle-and he's a good authority-says, "I fear that a rigid application of EEOC guidelines will leave the employer little choice-save an impossibly expensive and complex validation study-but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII." But that's where you are in this proposed statement.

Now, of course, you say, "Well, let the American Psychological Association validate the test." Who validated the American Psychological Association? When did the EEOC look to see how many blacks and how many Hispanics and how many Asians are in the American Psychological Association? Who validated their admission tests?

Now, interchangeably, your paper uses the words "quota," "preference," "target," "goals," and finally, quite candidly, says this is a semantic dispute. It is a game of four-card monte, but you may well say, "Is this not compensation?"

Well, my question is (as a person who wants to be fair), who is to pay it? To whom? For how long? And in what currency? Let me give you this illustration. There is no area of human life which is more important in a democracy than voting. There is no area in human life in which the black has been denied longer and more pervasively and more persistently his human rights than in voting. There is no area in which the aftereffects linger on more in a pernicious way.

Look at the Georgia Legislature. Look at the Mississippi Legislature. Look at the voting rolls, proportionately white to black in the South and in the North. Now, using your test and your remedies, you know what you should do; you should say there should be no more white registration until black registration has caught up with it proportionately. Or, alternatively, since blacks don't vote in the same numbers as whites even when registered, you could say hold whites at the poll until a black has come in and voted or until some other discriminated minority in the past has come in and voted.

The whole thing is absurd, if it were not pathetic. Now, where is this all leading to? Exactly where this paper directs us: to the inversion of the very principles on which this country was established. The principles argued by Thurgood Marshall of neutrality and a colorblind Constitution, Justice with her blindfold on.

He argued that in Brown for a colorblind Constitution. It is leading us to the core maxim of the Japanese exclusion case, which is a hated part of this system. You have, specifically, in this paper rejected the principle of legality in this country. You say the legal issue is no longer whether affirmative action is lawful, but whether it's appropriate. For what? Appropriate for discrimination?

And you have targeted white males as the enemy. Now, look at the results. If blacks and Hispanics are 20 percent of the population; Indians, 2 percent; ethnics, 30 percent-these have all been discriminated against at some point in history-Catholics, 30 percent; Jews, 3 percent; Asians, 8 percent; women, 51 percent. And if you divide society in that way, I suggest to you that, mathematically, the whole is less. than the sum of the parts.

I asked the Lawyer's Committee for Civil Rights yesterday-which it entered into a consent decree with the government in the Luvanno case, involving the PACE examination, in which preference is given by quota (20 percent to blacks and Hispanics) and across the country-Iasked my colleagues yesterday, "What are you lawyers going to do when an American Indian brings a class suit in Albuquerque, saying that these, the poorest of Americans, are being discriminated against by this decree? What are you going to do? And if your name is the Lawyer's Committee for Civil Rights, you are going to take the case against your own decree."

So amongst those who are protected under your guidelines and EEOC guidelines are Asians. This includes the Chinese, who have a family income far higher than the average in America, and Japanese, which are even higher. In the case of blacks, the West Indian blacks have a family income almost equal to the family income of the United States as a whole, and educated black women earn more than white educated women through college. The Hispanics include the Cubans, one of whom has just become the chief executive officer of the Coca Cola Company.

We are making progress in this country. We have risen from 274,000 blacks in colleges-and I happen to have been the president of the United Negro College Fund, the chairman for 9 years-to the point where we have 1,100,000 black young people in college.

I turn to what you call the problem-remedy. Let me suggest a real problem and ask you, ladies and gentlemen, to search for a real remedy. The 1970 figures are the last I have, but they show that the overall median family income of Americans is $10,678; West Indian blacks almost as high; American blacks, pitifully lower-constituting only 60 percent; Puerto Ricans, about like the blacks; the Indians, even less.

Now, in 1969, black income was only 61 percent of American white income. They are poor as a group. As a group, 1978, it had fallen to 59 percent. Now, why? Despite the fact that five times as many blacks were in college, despite the fact that the middle-class blacks were advancing on a scale and closing the gap in every category, this gap was closing, except-where? Except with respect to the single-family, female-headed household, in which case the household was earning, on an average, onethird of the black family household in this country.

Now, what had happened? Between 1962 and 1979, the number of black female-headed households pathetically had risen from 23.2 percent-almost doubled-to 40.5 percent. There's where the poverty is so awful-children so deprived-tragedy endemic and, also, in our white households of similar character. Need is need. Poverty is poverty. The frail family is a frail family; the failed family is a failed family.

You have focused on trying to invert American principles of neutrality, legality, and fairness and applied it to those on the upward escalator towards success and have not addressed yourself, at all, to the real problem: to search for the real remedy to poverty. I'm going to make a final suggestion, Mr. Chairman. You yourself, sir, have served long the principles I believe in. I have known you for years— when you were the president of the National Council of Churches of Christ in America-and I appeal to you and to every member of this panel as follows: this is a country of great diversity. It has so many different religious views that it could not establish a religion, because to have done so would have created an awful civil war. Out of the heterogeneity of the country and the religious diversity, we had to agree on neutrality, and out of that grew the neutral principle of freedom of speech. You see, I'm not going to like what some members of this panel may say, but the price of my saying what they don't like is that I must listen as they say what I don't like. America is a land in which we have had peace and freedom because of the principles of neutrality-the fact that we draw no distinctions of race, color, creed, or sex.

Now, what you are proposing is you invert the principle and erect the hated principle into a shrine. You are opening the door to a vast confrontation and the destruction of the very principles which Thurgood Marshall argued for in 1954 and which Justice William O. Douglas, a few years before he died, spoke eloquently for when he said, "The purpose of a constitution is not to erect race again as an invidious discrimination. It is not only invidious to me; it is absolutely odious." And I beg of you to address yourself to the real problems and let us try to search-I don't have the answer-for the real remedies. They probably lie in better education. They probably lie in better medical care. They probably lie in better training. They don't lie in inverting the principles of our national life. MR. HARTOG. Thank you, Mr. Abram.

John H. Bunzel has been senior research fellow at the Hoover Institution at Stanford, California, since 1978. From 1970 to 1978, he was president of San Jose State University in San Jose, California. He has taught at several colleges and universities, including Michigan State University. He was also a visiting scholar at the Center for Advanced Study in Behavioral Sciences at Stanford, California. Dr. Bunzel is the author of three books: The American Small Businessman, Issues of American Public Policy, and Anti-Politics in America. He holds a bachelor's degree from Princeton University, a master of arts degree from Columbia University of California, and a doctorate in political science from the University of California at Berkeley.

Statement of John H. Bunzel, Senior Research
Fellow, Hoover Institution

DR. BUNZEL. Thank you very much. Mr. Chairman, members of the Commission, let me say again, to all of you whom I haven't had a chance to thank for the invitation to be here-I am sure that Morris Abram speaks for all of us here.

We are here out of a deep commitment to the very principles that we share, and each of us could take your time and discuss the intensity with which we are committed to some very basic propositions. I accept that as a given, as I know you do.

This is one of those issues that I believe and I have felt for as many years as it has been with us-the whole question of affirmative action is one of those issues that comes along infrequently-by which, I mean, an issue that has moral dimensions, political dimensions, philosophical dimensions, ethical considerations, economic underpinings.

It is an issue that is so candid and, in some respects, involves the taproots and nerve ends of so many different interests that it would be a foolish man and woman, indeed, to claim to know the precise solution. All I know, and want you to understand in the comment that I want to share with you: that I do not believe that only the morally defective are on the side that opposes, let us say, racially preferential treatment or quotas by any name. Because I believe very strongly that honest men and women can have very serious differences. And many of us in this room-on each side of this platform-and across this country have spent many years together out of a sense that race was irrelevant, that the moral worth of an individual human

being was the only important criterion for a free society.

Some of us still believe this, not because there are absolutes in the world, but because it is as close to an absolute for a free society on which to operate as a principle-which in turn should be put into some kind of practice in a society in which, indeed, there is evidence that the more we move to race as consideration, the more we fragment ourselves. But that's an issue that is arguable and we will have our opportunity to do this.

I want you to know that it comes very close to the marrow of my bones, however, that race is a problem that I think is exacerbated to the degree we elevate it to any other consideration and certainly to a consideration above the moral worth of an individual.

Finally, by way of prologue, please understand that, as a basic premise, I think the issue is not just a question of the ends of affirmative action, but the methods by which we want to achieve a variety of ends we might hold in common. I agree with Aristotle and many others since that bad means cannot make good ends.

I am unhappy with the suggestions to expand the use of racially preferential treatment as a way of overcoming discrimination in our society. The idea that disproportionate or unequal results index race and sex discrimination, in my judgment, is not a rigorously empirical proposition. Much of what I will try to say this morning will have an empirical cast to it in the sense that I think it is incumbent upon this Commission to move from many of the important statements it has committed itself to at the legal level to a concern for some of the very difficult everyday ways in which affirmative action is viewed and practiced. I am concerned with practice. I am concerned with it in operation, and I'll say a little bit about that in a few moments.

I am sure you know that there are millions of Americans who have steadfastly opposed all practices that give persons an advantage, or impose upon them any disadvantage, because of anything extraneous to their ability, achievement, and promise. I don't believe these individuals are past their prime, and I think many of these millions of Americans would be very saddened and discouraged to learn that they might find in the Commission's report the view that the really true pathbreakers today-those who really oppose discrimination are those who fight for preferential policies and quota-ridden strat