or institutional gain that may came from benefiting a child of someone who can confer that kind of gain on that institution.

There is the so-called "old boy" network. I am constantly amazed at the list of luminary children whom one sees attending some of our more distinguished universities who, when you encounter some of these children-they really don't seem much brighter than any of the others you are accustomed to meeting and, in fact, some of them seem conspicuously dumber, and you are really forced into the conclusion that it's their prominence that has something to do with where they are and not strict merit of test and scores.

So affirmative action has to be seen in that context. But then we ought to marshall what are the arguments for affirmative action that have been mentioned here today. One is compensation for past wrongs.

American blacks have been the victims of slavery, victims of 100 years of racial segregation which, when it ended nominally in Brown v. Board of Education, persisted, so far as actual remedies were concerned, at least until 1970 for schools and still is not yet dismantled.

Another argument in favor of affirmative action is that the testing and selection procedures which we use do not always adequately measure ability to do the job.

Another argument we ought to take a look at and put into the calculations is the argument that Justice Powell used in the Bakke case: when blacks and whites, various groups, are together, they tend to learn from one another as a positive experience. To me, the most important argument-the one which you find in philosophical literature going all the way back to Aristotle and even earlier-is that it is important that one have a society in which there are not strong divisions among different groups and hostilities and differences which tend to tear the society apart. That's why arguments were made back in ancient Athens that the poor should be given high positions in the navy, which was a very important part of society, so that they would have a sense of oneness with the community at large and not be a divisive force.

I think we have to take a look at some of the downside aspects. I don't think we can, frankly, say that there are not white males who are equally qualified or better qualified for some positions who did not lose out in a quest for those positions to some

beneficiary of affirmative action programs. I think that happens. But I think that has to be seen in the context of total selection procedures of all sorts and then in the context of what are the alternatives that are available to such white males.

If I may give a personal anecdote, I recall being berated by a relative of mine because her son was rejected from Harvard, and she said that he undoubtedly was rejected-very bright kid-because some black got in, and I had something to do with it. I tried to argue with her about that. The fact is, the kid went to Haverford, and he went to medical school, and he's none the worse for it. Indeed, if it is true that her son were rejected from Harvard because some minority got in, there's certainly no way of knowing that. He's not so badly off.

But if it were true, the black who did get into Harvard is someone who for the first time now will have an opportunity to enter into the mainstream and the higher echelons of society which otherwise would have been denied him.

It is argued that the self-esteem of minorities, women, who are selected because of affirmative action is impaired. I have no doubt that sometimes occurs. That has to be seen in total context. Perhaps it should be measured. I would imagine anybody whose self-esteem were sufficiently impaired wouldn't take the job or wouldn't stay there. But, in any event, I don't think we should pretend that kind of argument doesn't exist and that it doesn't have some level of merit. It is sometimes held that the esteem in which others, the community at large, hold people who achieve positions through affirmative action is impaired. That people will say, "Well, oh, he's just in that job because he's black, or she's the woman in the job," and so forth. I have no doubt that occurs sometimes. We ought to address that. It is sometimes said that people are employed who cannot do the job just to fill it with an affirmative action hirer, as it is called, and sometimes there are jokes about that. We've heard them. We don't hear them anymore these days, but for awhile there were a lot of jokes about the telephone company.

I think we've got to address those. We've got to evaluate them. We've got to add them up and, I think, after we do that we will come out strongly on the side of affirmative action. But I just hear people talking past one another, and I think it would be much more effective if we acknowledge the issues, face them head on, and show that, all things

considered, affirmative action is the best thing we have going for us today in the civil rights picture. Thank you.

MR. HARTOG. Thank you, Mr. Greenberg.

Ms. Judith Lichtman is executive director of the Women's Legal Defense Fund, a position she has held since 1974 after she helped found the organization. WLDF has approximately 1,000 members, predominantly women attorneys. It engages in pro bono litigation, administrative and legislation advocacy, and public education aimed at eradicating sex discrimination, especially in the area of employment. It has extensively monitored Federal equal employment opportunity efforts, commenting in detail on the administration and enforcement of the Federal contract compliance program. Its "friend of the court" brief in Webber v. Kaiser Aluminum was supported by 25 women's groups. Its wide-ranging activities have included projects on behalf of battered women, on a variety of women's health issues, and in support of the equal rights amendment.

Ms. Lichtman, in addition to her leadership activities with the WLDF, has brought her extensive experience and expertise to bear in a vast array of other civil rights organizations.

Ms. Lichtman.

Statement of Judith Lichtman, Executive Director, Women's Legal Defense Fund

MS. LICHTMAN. One thing you didn't say, which you probably should have, is that my start was at the Commission on Civil Rights, like many other civil rights lawyers in this country, I think.

As this panel goes on, I think we will all be in the unique position of being able to affirm everything that just was said before us or at least I hope that's the case-and I will cut out some of the things I was going to say that are redundant—I don't think you need to hear them twice-and try to limit my remarks to the section in your report on "structural discrimination" and those particular paragraphsparticularly one paragraph on the bottom of page 13 in the first column that concerns white women. I cannot urge you enough, I don't think, to delete that paragraph. It is, for me, an enormous red flag. I think it does exactly what you don't want to do in this statement: it pits white women against minority women and minority men. I think, indeed, to buy into the notion that because a woman has a man she is not discriminated against, is, in very large measure, making you guilty of the kind of structural

discrimination that you are decrying in that paragraph above and below.

I think to not recognize the fact that women who have men must constantly be in fear of losing that man in order to keep their economic security, thereby limiting those very basic options that men have, is truly sexism, and I think that is a really regrettable paragraph.

To talk about sponsorship by men as the enjoyment of a privilege is to really turn your back on what sexism is all about. Now, your example in there is housing, and I would venture to guess that even in that area you are not correct. Two men living together with two incomes, my guess is, can buy a lot better house than a man and woman living together with two incomes, except for some of us wonderful professional two-income families, and even then, my guess is that I'm earning considerably less than my husband, having something to do with my sex and having something to do with the nature of my practice, to be sure.

But, if you look at white women living with white men in any other area, education and employment, for example, the virtue of their marriage is really rather irrelevant. I went to a meeting yesterday where several women, who are representative of a group that they called "The Cornell Eleven," most accomplished women, academecians, all of whom have been denied tenure or promotions within the university higher educational system at Cornelland, by and large, the 5 I met representing the 11 were unemployed or underemployed. The fact that they had husbands, of whatever color, was hardly relevant to their ability to perform professionally.

With respect to affirmative action, more specifically with respect to women, I do agree with both Tom and Jack that this is a country that's full of preferences. We don't like to think of them as preferences, but that's exactly what they are and they've given some very good examples. My only other example to add is the one that peculiarly disadvantages women, and that's the veteran's pref

erence.

When, within the past 3 years, women's groups that tried attacking the absolute veteran's preference and nobody ever asked for the doing away of a veteran's preference. We're all very conciliatory and always asked for some limit, or some cap, on an absolute veteran's preference. We were arguing that we wanted women to be considered on the basis of merit. And what the Congress and the courts and

the past administration eventually said to us was, "No," in as strong and unequivocal language as they could, "you cannot be treated on the basis of merit. That there is a strong community interest and social interest in the United States to recompensing the service of males in military service for their government and, therefore, considering people on merit is really not what we're interested in doing, with respect to comparing veterans and nonveterans," who, I might add, are traditionally women.

It is really ironic that it is some of those same people who find goals and timetables and the more specific numerical statistical analyses that go into some affirmative action plans so repugnant. And I really think at some point that the hypocrisy of using preferences when it conveniences you and decrying preferences in other instances really has to be addressed.

I just have one, sort of personal, anecdote that I was reminded of when Jack Greenberg was talking and that is, I went to law school at a State university, the University of Wisconsin, from '62 to '65. There were 150 of us in that class; 2 of us were women. I went back for the 10th Women in Law Conference 3 years ago, and fully 40 percent of that law school class were women. And that didn't happen because, suddenly, women became more intelligent in 10 years. It happened because it behooved the University of Wisconsin to go out, affirmatively, and find those qualified women.

There were not even 3 faculty women in 1965; there were fully 10 in 1975. The differences to women were really just extraordinary, in terms of what they thought their options were. I was, veritably, a freak. I was a nice freak, a likeable freak, but people basically thought that it was very odd. That's just gone from the social scene, and I think it is true in many other professional schools as well, although not all, and I would caution that those are the positive results of affirmative action. Nobody questions anymore whether or not women can go to law school, whether they can be clerks for judges, except on the Supreme Court, perhaps, and in many other walks of legal professionl life.

Let me just close by saying, I think the statement does an enormous service to all of us, and the history of using your documents for court cases and in congressional testimony is legion, and I would urge the adoption of this statement, with some strengthening along the lines outlined by Tom and Jack, and

certainly by the deletion of the paragraph on white

women.

MR. HARTOG. Thank you, Ms. Lichtman.

Mr. Stan Mark is senior attorney with the Asian American Legal Defense and Education Fund. Formed in 1974 to assist Asian Americans throughout the Nation, ALDEF is an organization of lawyers, law students, and community workers who bring litigation and engage in public education activities. ALDEF has projects in the areas of alien rights, labor organizing, and bilingual issues relating to access to government by Asian Americans. With respect to affirmative action, ALDEF has written "friend of the court" briefs in Webber and Fullilove and intervened in lawsuits challenging affirmative admissions policies in California and New Jersey graduate schools. Mr. Mark, who has been with the organization for 4 years (3 as an attorney with the New York office of ALDEF), was the lead attorney in many of these efforts, which cover the full range of affirmative action issues.

It is a pleasure to have you with us today, Mr. Mark.

Statement of Stan Mark, Senior Attorney, Asian American Legal Defense and Education Fund

MR. MARK. Thank you. I would like to state that I agree with the remarks made by my colleagues here on the panel, in that ALDEF supports the problemremedy approach for affirmative action as proposed by this Commission.

We also feel that this process of discrimination continues to permeate organizations and institutions throughout the society and that affirmative action can address aspects of that process affecting equal opportunity and access to that opportunity. For affirmative action to be effective, the discriminatory process itself must be analyzed in the concrete particulars so that appropriate remedies can be tailored to fit the particular discriminatory activities within organizations and institutions.

As Mr. Atkins mentioned earlier, there seems to be differences among minorities that have not been developed sufficiently, and with this kind of approach, I think the Commission has to do more data collection in this area, particularly with regard to language minorities.

The Commission also proposes a meaningful approach in understanding the particulars of the discriminatory process affecting Asian Americans. A problem-remedy approach adds assurances that

safeguard the inclusion of the Asian Americans in affirmative action plans, and affirmative measures that dismantle the process of discrimination are carried out properly by individuals, organizations, and institutions. This approach will assist in opening job training opportunities and governing benefits that are limited for or denied to Asian Americans by reason of their race or national origin.

Both the inclusion of Asian Americans in affirmative action and the related issue of access to opportunities and benefits are complicated by a cloud surrounding the status of Asian Americans as a minority. Stereotypes of Asian Aericans as a successful or model minority have placed an added hurdle in front of Asian Americans, who must continually convince policy and decisionmakers that Asian Americans be considered a minority, let alone be included in affirmative action programs. This attitude persists in our society even today, to the detriment of Asian Americans.

Most recently, there was a New York Times letter to the editor-I think it was October 1980-where an ethics professor excluded Asian Americans from affirmative action explicitly. And the political ramification of that, which I felt was very detrimental, was that it pitted minorities against one another. I think that type of attitude, that view of affirmative action, is destructive.

I also would like to commend the Commission on its report on the Success of Asian Americans, Fact or Fiction, that was issued in September of 1980. I think that goes a long way in clearing up this model minority [idea] and will help, in the future, assure that Asian Americans be included in affirmative action plans.

I would like to make some other comments, and I would like to say that one of the things that the Commission can do in terms of this report, in the section involving the steps for affirmative action plans, the very last-publicity and promotional aspects of affirmative action consolidating the gains that were made in affirmative action plans-I think that has to be utilized more, particularly with regard to how affirmative action has benefited white males. You indicated in the report-the affirmative action plan at the Kaiser Aluminum plant-Webber actually allowed for the fact that white males, who were previously excluded from craft positions unless they had experience, were able to enter into that program. But for the existence of that program, white males would have not had the opportunity to

get into those skilled positions. I think that kind of publicity about the success of affirmative action, increasing opportunities for all people, whites as well as minorities, should be emphasized more in the future.

In the main, I believe that affirmative action has benefited society overall and has increased their awareness of rights for people, both minorities and white majority. Thank you.

MR. HARTOG. Thank you, Mr. Mark.

The next participant is Ms. Taracido, president and general counsel of the Puerto Rican Legal Defense and Education Fund, organized in 1972 to protect and further the civil rights of Puerto Ricans and other Hispanics through litigation. PRLDEF has conducted a wide variety of activities, including successful efforts to secure bilingual education at the State level and bilingual voting. Its work in the area of affirmative action is also diverse. It has participated as "friend of the court" in De Funis, Bakke, and Webber; it has filed lawsuits seeking affirmative action in employment and housing; it has supported a State affirmative action program for minority contracting; and it has an active program seeking to place qualified Puerto Rican and other Hispanics in law school.

Ms. Taracido, who has been with PRLDEF for over 8 years, brings with her a lengthy and impressive history of involvement and activity in community affairs.

Ms. Taracido?

Statement of M.D. Taracido, President, Puerto
Rican Legal Defense and Education Fund

MS. TARACIDO. I would like to indicate, also, that I am a former graduate of the Commission on Civil Rights in my fourth year in law school. I had the privilege of working in the Northeastern Regional Office and it was a real good experience.

I appreciate the opportunity to comment on the Commission's proposed statement. It is, in large part, a worthy addition to what I feel is a fine body of work the Commission has contributed to the public understanding of civil rights issues. There is no question that it is needed and that it is timely.

As is pointed out in the statement, despite civil rights laws and the noticeable improvement in public attitude toward civil rights, one cannot help but come to the conclusion that our history of racism and sexism continues to affect the present.

More importantly, it comes at a time when we appear to be facing a withdrawal from many of the inroads made in the civil rights in the last decade or two, as is evidenced by the demise of the Fair Housing Bill, the withdrawal of the proposed bilingual education from the Department of Education, and the threats to block the reauthorization of the Voting Rights Act. Therefore, we welcome the Commission's efforts to come to grips with the emotional issue of affirmative action.

The report, I think, makes two important contributions: it sets discrimination in a framework that recognizes its various components: individual, organizational, and structural. And that this interlocking discriminatory process routinely bestows privileges, favors, and advantages on the white males and imposes disadvantages on minorities and women. This process is rightfully identified as self-perpetuating and one in which seemingly neutral operations create stereotyped expectations that justify unequal results. In addition, it provides a well-documented discussion of legal bases for requiring or permitting affirmative action as a means for rectifying discrimination, a remedy that allows for the specific technique of employing race, sex, or national origin as the affirmative measure for this decisionmaking process.

In my opinion, however, it falls short on two counts: one is the question that has already been discussed by some of my colleagues on this panel, and that is that it doesn't take an affirmative stance with regard to supportng the principle that affirmative action is something that is appropriate and that, indeed, numerical affirmative measures are not illegal under certain circumstances. It seems to me that the structure of part C of the discussion in the statement should be done in such a way as to approach it as you have, which is to diffuse the opposition to terms such as "goals," "quotas," and "preferential treatment"; however, this should be done in a context in which we bring up front the definition of what affirmative measures are meant to do. And I refer you to the language, which I think is quite strong and eloquent, on page 42 of the statement, in which you discuss the question of what the reasons underlying affirmative measures are, and it is the last two paragraphs of column 2. That seems to me what the primary focus should be: you should bring the argument up front.

In addition, it seems to me that one should give greater emphasis to the legality of using numerical

affirmative measures when you want to remedy proven discrimination, including the kind of voluntary rectification that is demonstrated in the Webber case and the congressionally recognized discrimination that warranted taking certain measures in Fullilove. In the process, I think it is absolutely appropriate for the Commission to try to deal with the opponents' and proponents' perceptions about what affirmative action is. Indeed, I think that that last section must make a focal point of the discussion. You should dispel some of the misconceptions. You do it substantively in terms of the actual language and work in that section. It is right. I am really talking about the organization of the presentation of the material. And so it seems to me that the next step would be to dispel those misconceptions that some proponents might have about the use of statistical data as a measure of discrimination, and also the question of using it as the means for equal representations without regard to the presence or absence of discrimination and as a means of asserting group rights.

On the other hand, you also, because you must be evenhanded-you should counter the argument that numerical affirmative measures stigmatize, that they unncessarily trample on the rights of whites, and that they are an attempt to discard the merit system. Indeed, you should talk about, as I would say, condemn, the whole discussion around the dishonest implementation of affirmative action measures.

You have a second part in which you discuss what would be, I suppose, termed by you in the initial part of the document, "the legal kinds of discrimination." Well, I think we have to say that in those cases, in those instances, what you should do is be encouraging to go beyond the need to address "illegal discrimination" and to really look at the "legal discrimination" discussed in the document. If the goal of dismantling discrimination is to be achieved and if we are to make sure that the gains we have made in the last decade or so are not lost, you want to tell people that there are ways of doing that.

You use the example of promotional layoff procedures, of work sharing, of inverse seniority, unemployment insurance policies that would support the principle of not cutting back on what has happened in the past. So what I am basically indicating is that part C, from my perception and my reading, is such that it really requires a refocusing, a reemphasizing of what is important; and what is important is that you sometimes can use quotas.