Affirmative action and the Constitution (1985) | ARCHIVES
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Affirmative action and the Constitution (1985) | ARCHIVES

September 15, 2019


Announcer: From the nation’s capital, the American
Enterprise Institute for public policy research presents Public Policy Forums, a series of
programs featuring the nation’s top authorities presenting their differing views on the vital
issues which confront us. Today’s topic, Affirmative Action and a Constitution. John: This public policy forum, one of a series
presented by the American Enterprise Institute, will examine the conflicts involved in the
task of combating all kinds of discrimination and striving for equality of Americans under
the Constitution. Our subject, affirmative action and the Constitution. Few issues of the day so divide our nation
as current affirmative action policies, especially when numerical goals are used to increase
minority group opportunities in employment or admissions to college and professional
schools. One side contends that such policies are necessary
to ensure an equality of results in order to be sure of achieving equality of opportunity. The other side argues that such preferences
in admissions or employment are unconstitutional reverse discrimination. Can we achieve equality of opportunity in
America without race, sex, or ethnic-conscious remedies for discrimination? Is it just unconstitutional to deny a qualified
person an equal chance for a job by giving someone else a preference in order to redress
past injustices or to eliminate present discrimination? Is there such a thing as group rights under
the Constitution of the United States, or does the Constitution require that individual
rights predominate in every instance? Well, to help us find answers to these questions,
we have a very distinguished panel. On my far right is Dr. William B. Allen, professor
of government in the Department of Humanities and Social Sciences at Harvey Mudd College
in California. Professor Allen is a member of the National
Council on the Humanities, as well as a member of the California State Advisory Committee
of the United States Commission on Civil Rights. On my immediate right is the Honorable William
Bradford Reynolds, who has been the assistant attorney general in charge of the Civil Rights
Division since 1981. Previously, he was a partner in the law firm
of Shaw, Pittman, Potts, and Trowbridge and was an assistant to the solicitor general
of the United States. On my immediate left is Dr. Benjamin L. Hooks,
who has been the executive director of the National Association for the Advancement of
Colored People or NAACP since 1977. Dr. Hooks is chairman of the Leadership Conference
on Civil Rights and is the past chairman of the Black Leadership Forum. He is also an ordained minister on leave from
the Middle Baptist Church in Memphis, Tennessee. On my far left is the Honorable Drew S. Days
III, associate professor of law at Yale Law School. From 1977 to 1980, during the Carter administration,
Professor Days was assistant attorney general in charge of the Civil Rights Division. Previously, he was the first assistant counsel
to the NAACP Legal Defense and Educational Fund. The history of discrimination in our country
is a long and familiar one. Our Constitution was written almost two centuries
ago, at a time when black slavery was an entrenched institution. The tensions between the principles undergirding
our nation and the fact of slavery led us to a Civil War out of which emerged three
amendments to the Constitution, the so-called Reconstruction Amendments. The 13th Amendment abolished slavery, and
the 15th secured the right to vote, but it is the 14th Amendment that is chiefly relied
upon to define equality and civil rights in America. That amendment reads in part, “No state shall
deprive any person of life, liberty, or property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws.” It was not until 1954, however, that the Supreme
Court in the case of Brown versus the Board of Education ended legal segregation of public
school children by race and they’re then ensued through the 1960s a long train of legislation
to secure civil rights in America. Today, new policies requiring the hiring and
promotion of blacks, women, and other minorities have been adopted to eliminate what we may
call invidious discrimination. The debate over affirmative action programs
continues, and the Supreme Court in a string of cases has been less than clear in its efforts
to pronounce on which forms of affirmative action policies are constitutional and which
are not. To come to grips with the questions and issues
which we face tonight, gentlemen, let me ask the same question of each of you, do affirmative
action policies that involve racial, sex, or ethnic classifications conform to the letter
and the spirit of the Constitution? Mr. Reynolds? Hon. Reynolds: Well, if one reviews and reads the
debates in the 39th and succeeding Congress and also looks at the debates that surrounded
ratification of the 14th Amendment, it is clear beyond a doubt that what the framers
of the 14th Amendment had in mind was to draft the document that was to command that any
decisions made by a government would be made on a race-neutral basis and that the 14th
Amendment was to guarantee equal opportunity, not equal results that it was to be a documentary
command that would not permit preferences by reason of race. I think that today any kind of action, whether
it’s a quota, or it’s a goal, or it’s called affirmative action of some other kind that
does indeed grant a preference by reason of race is contrary to both the letter in the
spirit of that constitutional amendment. John: Dr. Hooks? Dr. Hooks: I think that’s absolutely wrong. Article I, Section 2, Clause 3, of the Constitution
start off with a quota, three-fifths, as what black folk were in that original Constitution. There’s no question in the mind of any competent
scholar that the 14th Amendment, the 13th Amendment, the 15th Amendments were written
for one purpose and that was to eliminate the practice of slavery and the possible perpetuation
of segregation. The 13th Amendment abolished slavery. White folk didn’t need that. The 15th Amendment guaranteed the right to
vote regardless of color. White people did not need that. And the 14th Amendment provided for equal
protection of the law, and that would not have been that amendment had there not been
the abolition of slavery. And I think it was the 19th Amendment if I
make no mistake that guaranteed women the right to vote. So the Constitution itself has recognized
that there is color in this world and there are sexes in this world, and that from time
you have to utilize it in order to achieve it. And so the 13th Amendment, 14th Amendment,
and 15th Amendment, as you refer it to the so-called Reconstruction Amendments were written
particularly, specifically to deal with questions of color and to interpret them otherwise it
seems to me is vain and foolhardy. John: Professor Allen? Dr. Allen: well, I have to say at the outset
that I think it’s misleading to call affirmative action reverse discrimination, as we often
do. There is no such thing any more than the opposite
of injustice, for example, is reverse injustice. Affirmative action is discrimination, pure
and simple, and therefore, incompatible with our Constitution. It’s important not to confuse these things,
because being clear about them is what helps us to avoid mistakes. James Madison thought the most important test
of American freedom would always be the ability of the system to guarantee the rights of minorities
without exceptional provisions for their protection. Affirmative action is incompatible with that
constitutional design and whoever calls for affirmative action it seems, to me, declares
at the same time that we can no longer live without constitution. John: Professor Days? Hon. Days: Well, I want to try to bridge the gap
between Brad Reynolds and Ben Hooks in that Ben Hooks is, of course, correct that the
Civil War amendments were ratified with the alleviation of discrimination against blacks
as the principle objective. But as Brad Reynolds has indicated, the long-term
objective was to create a society in which race and color and other characteristics would
be irrelevant. The problem we face today and in previous
years has been that we’ve not achieved either goal. We’ve not achieved the objective of remedying
discrimination, and therefore, the consideration of race is something that has to take place
in order to deal with that problem. The Congress that ratified the Civil War amendments
engaged itself in affirmative action. The Freedmen’s Bureaus were explicitly designed
to benefit blacks, and they used racial classifications. So I think from a historical standpoint, it’s
simply incorrect to say that those amendments were designed to frustrate efforts to remedy
discrimination against people who had been the victims of injustice. John: Well, to come down to the basic substance
of much of today’s debate, Mr. Reynolds, the Justice Department filed five motions in United
States Court in Chicago to overturn discrimination remedies one in three lawsuits filed by the
Justice Department as a plaintiff in earlier administrations. You have indicated that you’ll seek modifications
of court orders in some 50 localities to limit affirmative action. Would you clarify why Justice seeks to change
what earlier it sought? Hon. Reynolds: Well, the recent filings of request
of the court to modify consent decrees that contain quota provisions flow from a Supreme
Court decision in 1984 that involved a statutory provision, not a constitutional provision. The Supreme Court in a 1984 ruled in a case
that goes under the name of Memphis Firefighters decision that that provision of the statute
forbids the courts from imposing quotas as an element of court-ordered relief. The obligation of the Department of Justice
after the Supreme Court as spoken is to return to the courts and ask for a review of outstanding
decrees that had been entered that contained quotas and to seek a modification to bring
those decrees in line with the command of the Supreme Court that remedying discrimination
must be for the benefit of victims of that discrimination. It must seek to enjoin or stop the discriminatory
conduct, affirmative action in terms of outreach and recruitment programs are permissible,
but one cannot use discrimination to fight discrimination. And therefore, you cannot as a court order
a quota in order to try to undo the very discrimination that has been charged or alleged. Dr. Hooks: With all due respect to that I
wish the law were as simple as Mr. Reynolds said it, that the court has said all the things
he said they said. On April 28th, 1985, the 11th Circuit in the
Eglin Air Force case reviewed the same case that Mr. Reynolds referred to and came up
with exactly the opposite conclusion. The underlying consent decree in the Memphis
Firefighters case was not disturbed by the Supreme Court. The Memphis Firefighters case as it is read
by most scholars that I have had a chance to talk with and listened to, said in a very
narrow situation, a very narrow situation, and that is where seniority was not covered
by the consent decree, and that the trial judge was wrong to modify the consent, a voluntary
consent decree placing affirmative action above seniority where that issue had not been
dealt with in the underlying decree. Hon. Days: Let me reinforce what Ben Hooks has
said. After the Stotts decision to which Brad Reynolds
made reference, that underlying arrangement was not touched by the Supreme Court. And it is also correct that every court since
that Stotts decision that has considered the Justice Department’s argument has rejected
it. What I find problematic about the Justice
Department’s position is not that it takes a very ambitious and broad view of what the
Supreme Court decided. But it takes a case that is controversial
over which there can be some debate about its holding and its import and uses that to
seek to overturn consent decrees and voluntary agreements that have been made in scores of
communities around the country. It seems to me that a public official has
a responsibility to act only when the law is clear and when the direction is apparent,
not to extrapolate from Supreme Court decisions and use that to overturn approaches that have
been taken by prior administrations, both Democratic and Republican. John: Professor Allen? Dr. Allen: I think there’s something highly
unsatisfactory as a panel or as a people dancing attendance on eclectic court decisions in
various jurisdictions in the attempt to arrive at clarity about fundamental principles. It’s true we need to inquire into court decisions
in order to know what the present state of jurisdiction is. But the ultimate question, of course, is,
“Does the Constitution tolerate principles such as affirmative action?” We have had court decisions which, of course,
were radically flawed. We’ve had them recently, as well as more ancient
and certainly, we had the Dred Scott decision, which in a way produces the very problem we
struggled with now, through its attempt to reinterpret the Declaration of Independence
and the U.S. Constitution. So in the context of struggling with the Dred
Scott decision’s reinterpretation of citizenship that the civil rights amendments after the
civil war have to come face to face with a question of race. But they do so with this objective to restore
the status quo ante prior to 1857, to get back on the solid ground of the Constitution
and the Declaration. And it seems to me that we need to have sufficient
courage even to say that courts are wrong and that, in fact, they’re not the last judges
of this question. Dr. Hooks: Dr. Allen, they were not trying
to restore the Constitution before 1857. I just read you from Article I, Section 2,
Clause 3, that establish black folk, they didn’t call us that, they had a very good
way of saying it, three-fifths, and the 13th Amendment, 14th Amendment, and 15th Amendment
were not trying to reestablish black people, the three-fifths not for any of the reason
except to get representation. They didn’t give us any rights that for the
purpose of enumerating how many people you could send to the House of Representatives
that black folk would be three-fifths and they will not, the 13th Amendment, 14th Amendment,
and 15th Amendment were trying to do something specific and new to abolish slavery, specifically
in the 13th Amendment. Well, the Constitution Franklin Roosevelt’s
statement on March the 4th, 1933 is the one that I’d like, that the reason it survived
because it is an elastic document. It is very short. It gave a lie to the fact that committees
mess up everything, that committee did pretty good. And when they wrote that Constitution, the
thing that makes it viable is its elasticity, is the interpretation of it. And one only has to look at the Dred Scott
decision of the 1850s, and the Plessy v. Ferguson of 1897, and the Brown v. Board of Education
of 1954 to understand that the Constitution is not a static dead hand, it’s an evolving
document designed to deal with the issues as they arrive. And the worst thing we can do to that Constitution
is to try to pretend it is dead and has no elasticity to it. John: Mr. Reynolds? Hon. Reynolds: Just to add one point, which I think
is certainly relevant to the discussion, when the Supreme Court speaks, especially in this
area, I would think it’s probably fair to say that its decisions are always received
with some controversy and there are a number of lawyers who will read the decisions in
different ways. It is well, though, that the Department of
Justice and others don’t shy away from controversial cases in order to go after discrimination. Brown v. Board of Education, for that matter,
was one of the more controversial decisions handed down by the Court and hardly a matter
of clarity when it was announced. It was the Justice Department, in the face
of considerable controversy that still went forward in the jurisdictions and sought to
upset discriminatory activities on the strength of Brown that were in the areas school segregation. What we have seen in the present day is a
decision by the court, which admittedly has generate a controversy, by which it said the
discriminatory behavior in terms of quotas, in terms of those kinds of remedial techniques
that rely on race to give a preferences and rely on race to disadvantage people who are
not victims, that that is discrimination and that’s unlawful. It is controversial and our responsibility,
once the Court has made its pronouncement is to proceed back to court, if you will,
in those circumstances where we think the discriminatory features exist and to seek
to have those discriminatory features removed and in response to the Supreme Court’s command. We are not suggesting that there’s no controversy
attached but there has never been a Supreme Court decision certainly in the Civil Rights
area that I’m aware of that’s been handed down that hasn’t had controversy and there’s
never been an instance in the history of the Civil Rights Division of the Department of
Justice and its fight against discrimination where it hasn’t generated controversy by reason
of launching that fight and proceeding to carry that fight to every place it has to
in order to fair it out and remove discrimination. Hon. Days: But your reading of the Supreme Court’s
commands, as you call them, is very selective. The Supreme Court decided in the Bakke case
that under some circumstances race could be used in admissions decisions. It decided in the Weber case that voluntary
race-conscious programs could be used for purposes of training blacks and involving
them in opportunities from which they had been excluded in the past. And the Fullilove decision passed on a statute
enacted by the United States Congress that set aside 10% for minority contractors in
public works programs. How one can look at the Stotts decision, which
I think as Ben Hooks has indicated deals with a statutory matter, a matter of statutory
interpretation, and view that as the linchpin for a program of overturning decisions that
had been made by prior administrations, ignoring Bakke and Weber and Fullilove that seemed
to me to point an entirely the opposite direction. Dr. Allen: Those cases, in a sense, only repeat
the principle established 100 years ago almost now in Plessy v. Ferguson. There is no change in the principle. There is a change in the application that’s
to be conceded. But the principle that the government can
have recourse to race was established fully in that case in cases of that era. It was an erroneous principle. It’s a principle we’ve contented against ever
since. It’s erroneous in the same way, Dr. Hooks,
that your account of the historical view is erroneous. And I recognize that that is a commonly accepted
view, but I’m afraid it’s a wrong view. The notion that Abraham Lincoln speaks to
when in the debate with Douglas, he says, “People who try to read out of the Declaration
of Independence, the black man, blowing out the moral lights among us. And when I speak of returning to the status
quo ante in understanding the Constitution, I speak of returning to those moral lights
that Lincoln sought to resist having blown out and to deny that those moral lights existed
is to deny that there is any ground upon which to stand to argue in behalf of the rights
of black people or any other people. John: Mr. Reynolds. Hon. Reynolds: The 14th Amendment and the Constitution
provision is as the NAACP said in its brief in Brown v. Board of Education, it is a document
that is colorblind. And at that time, it was the NAACP’s “dedicated
belief” as stated in that brief. I know no amendment to the Constitution or
to the 14th Amendment since you filed that brief that would suggest that your dedicated
belief should no longer be the same as it was when you filed the brief in Brown v. Board
of Education. Dr. Hooks: Let’s make three points very briefly. First of all, Dr. Allen and the status quo
ante, one of you said about moral lights was the first article of the Constitution that
permitted and perpetuated slavery in this nation for a long, long time. And the 13th Amendment was designed specifically
to abolish that. As it relates to the eloquent argument Mr.
Reynolds makes. And, of course, he wouldn’t be the Assistant
Attorney General for Civil Rights succeed and a man like Drew Days unless he had a lot
of brains, I’m not gonna try to get too much involved in it, but you know, you’re not lying
so let me get that out of way but let me make the analogy, no lie will stand long unless
it has a little truth mixed up in it. That’s the concrete that keeps it together. And so you can cite what we’ve said about
a colorblind society, and you can make of it what you will, but Justice Blackmun in
the Bakke case dealt with the whole question of colorblindness I thought most appropriately
when he pointed out in a very brief opinion, concurrent I supposed it was, that as he looked
at this problem it didn’t come about through colorblindness. We did not create the society with all of
the discrimination, the prejudice, the segregation, the sign that said “Whites only,” those want ads. The absolute “White only” police departments
all over this country, North and South, where there were no blacks who could advance beyond
the position of sergeant. These are facts that have been proven in court
time and time again. It is almost redundant and silly to have to
sit here and talk about it. Those things existed. They are facts. Anybody wants to say the world is flat go
ahead, it’s still, the earth is flat that’s all right. But the point is, let me just finish the point
and you can have it, the point is that these conditions existed and the Civil Rights Acts
were designed to eradicate them. Now, I have no problem when you talk about
they were intended to help the victims of discrimination as a statement, that’s fine. Let me do with your statement what you did
with mine, I maintain, whether they know it or not, and most of us do know it, all black
folk are victims of discrimination. Therefore, we were all intended to be helped,
but the difference you make and you’ve not stated that here is that you only want to
help that one black man who was crazy enough to go to the Memphis Fire Department when
it was white only and ask for a job and get whipped out of that place, a run out, incarcerated
in an insane asylum. To me, that’s just not right to say that where
we know these facts existed where we know that they were a fact and we’re trying to
remedy them that we’ve got to say the only way you can be helped, boy, is to prove that
you had enough sense to know that one day we were gonna help you and you went down and
made a written application on April 8th, 1964. If you bring that here, then we’ll help you. Otherwise, I’m sorry. Now that’s the major point I think in which
we disagree. And finally, what Justice Blackmun said was
that in order to reach a colorblind society we may have to take into consideration color
and sex to eliminate inequities just as we took into consideration color and sex to build
these inequities. John: Professor Allen? Dr. Allen: I just want to emphasize that while
it’s true the objectives in terms of contemporary policy is a colorblind society, there is a
more important objective and that is a free society. And that is to say, one has to get there in
a way which preserves in the colorblind future the freedom with which we began, and it seems
to me greatly shortsighted to deny that this country began with that freedom. To argue that the Constitution established
and perpetuated slavery is a fundamental mistake. But when one pulls it away and one pulls away
the structures through the years, one pulls away every opportunity to abolish slavery. One has it seems to be to account for everything
and not merely those things, which for the moment, contribute to our argument on one
side or the other. I would, therefore, ask us if we have to talk
about this in a contemporary way to broaden the conversation, to recognize that we’re
not talking merely about victims in trying to pinpoint a lot to those who suffered. But you can’t talk about victims without talking
about those who are guilty of the crime. And the problem with affirmative action is
that there are great many, grandsons and great-grandsons, whom we simply cannot call guilty of any crime
who are suffering at the hands of an unjust law. And if we’re gonna talk about the whole society… Dr. Hooks: Well, Dr. Allen, that’s the most
ridiculous statement you have made today. Dr. Allen: Let me finish it. If we’re going to talk about the society as
a whole then we must find that speech that language which addresses the whole. Hon. Days: John, let me speak before Ben starts
again. First of all, I want to comment on a point
that William Allen made about Plessy v. Ferguson. I think it’s important to distinguish Plessy
v. Ferguson and its mode of analysis from what has been happening since Brown v. Board
of Education. And the distinction is that Plessy v. Ferguson
was based upon a lie. It was based upon a false characterization
of the society that existed at that time. There was the Supreme Court that described
racially-segregated railroad cars as being designed to provide the type of separation
that both races wished. And that if blacks felt that it was a sign
of inferiority then it was a problem that they had. It was a type of paranoia that blacks had. Well, that’s a lie. And the important thing about Brown v. Board
of Education and the other cases that I mentioned is that they comport with reality. They are responding not only at the Supreme
Court level but at the lower Federal Court and state levels to the reality of continued
denial of opportunity to blacks, to women, to other racial and ethnic minorities and
trying to give life to the constitutional document that Ben Hooks was talking about
that is not written in stone, that is not static. Therefore, the objective is a very pragmatic
one and that is, how do we deal with the continuing deficits and disadvantages that groups suffer
in this society that can be traced to slavery and a long period of institutional discrimination. You talk about moral lights and you talk about
a language, I want to know what moral light, what language you have in mind to deal with
that practical problem that we face. John: Professor Allen? Dr. Allen: I would love to address that question. Let me put it in context because what we’ve
emphasized to begin with is the question of affirmative action, which puts us in a difficult
spot. We need to clarify the principles. There is a second question and I think you’ve
pinpointed very well what then can we do to achieve the objectives of the society and
I do believe there are political processes available to us ready to hand, and I’ll mention
one at the very end and I won’t go on much longer. But let me say this, about the Plessy case
and its analysis. I think you’re right that it false on the
facts. I do not think it’s false to the society of
the time. The Court does, in fact, the same thing that
it’s done in Brown. It asked itself, “How do people think about
these things? What are the opinions?” And I think the Court’s statement of the opinions
which prevailed was, indeed, correct, just as the mode adopted in Brown v. Board of Education,
with sociological analyses and similar ways of collecting common opinion, was more or
less a reflection of the time. But the common opinion is not the same thing
as this true principle, and the errors in Plessy have to do with the principles, not
with the common opinions which they claimed to exist. Now, just to close, I think the way in which
to approach, not to solve, the question you raised just notice the great paradox in what
affirmative action asks us to do. It asked primarily that the government intervene
in the labor market, primarily labor, there are other things to be sure in order to produce
a certain result. And much of what it’s doing is asking the
government to undo what the government did through the National Industrial Recovery Act
and the National Labor Relations Act when in effect, gave to local unions with government
informateur the power to discriminate. And during all these years since then, the
opportunity was for those who were harmed by that to call it for what it was rather
than to play along with the labor movement and sustain the edifice of discrimination. John: Do you wish to go Mr. Reynolds? Hon. Reynolds: Yeah. Let me just say two things, one is I agree
with Drew Days that Plessy v. Ferguson was grounded on a lie, and I don’t agree that
if we disengaged ourselves from quota remedies that that somehow leaves untouched or unattended
the problem of discrimination in this country and that there’s no way to deal with or remedy
that discrimination. I agree with Dr. Hooks that there is discrimination
out there, that it continues, that we still have effects of past discrimination and we
can’t rest until we have treated with that problem to the fullest. But there are ways to do it that does not
buy into the same kind of evil tool of discrimination that we’re trying to condemn when we condemn
the evil of discrimination. We have used for the past four years affirmative
action in the context of an outreach, a recruitment program that goes into communities that are
untouched that finds those minorities and women who are qualified and interested in
jobs who brings them into the applicant pool. And then with that system in place this selects
people at the hiring level or the promotion level on a nondiscriminatory basis. And if you look at results, if you want to
look at results, the results of that kind of a race-neutral regime have produced increased
numbers of minorities and women in the public work force where we have enforcement responsibility
that exceed the numbers one would have expected had you tied your remedy to some kind of an
artificial quota. Dr. Hooks: Let me see if I can use two cases
very quickly. The Derose in Alabama, one in 1972. The Allen case involved highway patrol’s file
within NAACP because in 1972, after 37 years of existence of Alabama Highway Patrol they
had never ever hired a single black patrolman. Not one. Not one. We had exhausted all of our administrative
remedies. And we went to court finally seeking to have
black patrolmen added to the Alabama Highway Patrol. And that protracted litigation went on and
that’s always was just what Mr. Reynolds talked about, “We’ve recruited. We’ve sought, get the NAACP and the Urban
League and the SCLC to give us names, and we have advertised in the black dispatched. We’ve done all we know how to do and nothing
has worked.” Finally, Judge Johnson in that case after
having been exasperated by the failure of a single black to be hired directed that they
would hire one black applicant for every white applicant they hire. At the same time in 1970 in the Frazeer case
where the suit was filed against all of the departments of Alabama for failure to have
to hire black applicants. The judge did not require any goals to be
met. And the strange thing that I thought would
have happened did in fact happened that after the passage of a few months, a few years,
in fact, there were more black people hired by the Alabama Highway Patrol than in all
of the other 75 departments of Alabama put together because in one case they had a goal
to meet, which was one black applicant for every one white applicant they hired. And in the other case they were told to recruit
and they had planned, I suspect that filled this room, all the things they did to recruit. This country is in favor of goals and timetables. We don’t say to Detroit, “We hope that by
January 1st, 1986, you will produce a fleet of cars that will get 32 miles to a gallon. Now, we’re not going to do anything to you
if you don’t do it, but try.” No, no, no, the Congress said to them, “By
January 1st, 1986, you will have a fleet of cars that produce 36 miles to the gallon and
if you don’t, you’re gonna be fined several million dollars a year.” They have a penalty attached to it. I maintain that a law has to have some penalties,
some deterrent value, to work. What we are saying to you sir is that if you
firmly, sincerely believe then I can give you a number of jurisdictions that are not
doing anything. And I would suggest you go there and try working
with them, virgin, clean territory. Work with them and see if they won’t do better,
and let those that are working go along and then in 10 years let’s go back and see what
we’ve accomplished voluntarily and with a goal, and I think you’ll agree with me. Dr. Allen: Let me just say a word about that,
if I may, Dr. Hooks, because I think no one is suggesting that there isn’t adequate scope
for an active and energetic Justice Department in the civil rights area. And I can think of many ways in which that
activity can continue and expand consistent with the Constitution. So the real question is the question embedded
in your Alabama examples when you point to the plan that doesn’t work in the plan that
does work. The question is not with respect to the plan
that does work, does it work, but is it right? Dr. Hooks: What appeals to me is the fact
that we had a problem and in one instance the court took one position in the same state
and took another position in another case in the same state. One achieved results and one did not. And that’s all I can deal with as a lawyer
is the practical pragmatic results. John: Professor Days? Hon. Days: I have several points to make. First of all, I think we all agree that, and
if I’m wrong on this please speak up, that goals and timetables or the explicit use of
race or sex as criteria, is not appropriate in every circumstance. There are range of remedies that one can use
to deal with specific problems, and we talk about goals and timetables and quotas as though
they were used in every instance to respond to quite different situations. Secondly, goals and timetables and these numerical
measurements were instituted because of the experience that prior administrations had
had with good faith efforts, and Dr. Hooks referred to those. Year after year passed and nothing changed
and finally, the courts and administrative agencies said, “We’re going to have to do
something about this. We’ve had enough of your good faith. Where is the change? Where are the results? Where are the jobs for blacks or for women
or Hispanics?” And so it was more out of frustration than
anything else that these techniques were developed. They are regarded as interim measures. And you used the term “equality of result.” I don’t think that’s a correct characterization
of the approaches that have been used. They are interim measures to bring an institution
to the point where the society can regard it as capable of acting in a colorblind and
nondiscriminatory fashion. John: All right, now, we’re not gonna have
proper amount of time for our question and answer session, so I think you should have
it enough to really make some response if you wish, sir. Hon. Reynolds: Let me just say then that cover
an awful lot territory on the higher plain, right versus wrong, and I sort of hesitate
to speak to this but I think that I can say with some degree of assurance that all of
us around this table would agree that discrimination on account of race is wrong. To me, a quota or a goal or a timetable or
any other numerical device that assigns a preference to somebody because of race and
disadvantages someone else because of race, you’re not dealing in either case with the
victims of discrimination is discrimination itself and is wrong whether that device that
is the quota or the goal or timetable has worked, is not I think to be measured in terms
of how many individuals might have or might not have come into a work force by reason
of use of that device. It works if it eliminates discrimination. If you’ve got a remedy that discriminates,
it’s not moving us in any direction that I can see that positively is gonna eliminate
discrimination. And when you call it an interim measure, it’s
hard for me to see where the measure suddenly ceases. Where do we disengage? At what point if we have suddenly balanced
if you will a work force and then remove whatever the governmental hand is that’s accomplished
that. At what point do we do it and if we do it
and thing start sliding out of equipoise, what do we do in that regard? I think that it’s a mistake to say that some
things worked by looking at some numerical balance. It works if we eliminate discrimination. That’s what we’re about, that’s what we want
to do. We want to get rid of discrimination in this
country. When we say that we believe as Justice Blackmun
said that you need to use race to get beyond racism we don’t use alcohol to get beyond
alcoholism. It doesn’t make much sense to me to buy into
the very evil that we have said over and over again around this table that we agree is contemptible
and that we condemn outright and unequivocally. John: I think your coverage of the issue is
so broad that we must have raised many questions in the audience that is here and it’s really
time for us to go to their questions and give them an opportunity to talk to our panel. So may I have the first question, please? Hyman: Yes. My name is Hyman Bookbinder. I’m with the American Jewish Committee here
on Washington. And what has been a very exciting discussions
so far, and nevertheless, I’m depressed about one thing that all the panel members seem
to be using words interchangeably that ought not to be considered interchangeable. The words affirmative action, goals, and quotas
really mean different things. I like the panel to help the audience understand
the difference. The reason I ask the question is that I am
terribly disturbed that what’s happened in recent months in this administration is that
it isn’t only quotas that have been outlawed, quotas that may conceivably lead to what is
called reverse discrimination, but the system of goals which is different from quotas, goals
which has worked which contains no dangers, which has worked in government employment. So I invite the panel please to comment on
whether it is not true that you can have a system of goals and timetables that does not
have the obnoxious features of quotas which many people are rejecting. John: Mr. Reynolds? Hon. Reynolds: Well, I do think it is true Mr.
Bookbinder that the debate on this whole subject has in large part suffered because the terms
that are used are not well defined. Affirmative action as it was traditionally
used and introduced in the civil rights arena referred solely had referenced affirmative
outreach and recruitment programs of a race-neutral nature that was put in place in the early
1960s. And when I use affirmative action, that is
the sense that I understand it, and it seems to me that is the only legitimate sense for
the use and the definition of affirmative action. Quotas I think are, I believe we all would
agree by definition or rigid as some people say or rather inflexible numbers that require
that different employers in the employment arena reach those numbers as an objective
in their employment activity and they are defined by race and sex or when they are defined
by race and sex and national origin, they run afoul of the constitutional principles
of equal opportunity and neutrality that I had mentioned at the outset. My view is that goals, which I think has been
used as a term variously by the different people on both sides of the debate, goals
are, in my view, a permissible so long as they do not include or condone in anyway a
preference by reason of race or gender or ethnic origin or religion. If you use a goal and the operation of that
goal is to afford a benefit to any individual because of immutable characteristics no matter
how small that benefit might be, I see it as being no different from a quota. And it seems to me that it matters not what
label one attaches, if you’re talking about a quota or a goal or a preference or a set-aside
or any other numerical device that assigns a benefit by reason of an immutable characteristic,
it runs afoul of the constitutional principle and of Title VII. Dr. Hooks: I think that you raised a very
important point and I just like to comment on it briefly that there is a vast difference
between the use of a quota and the use of a goal. In the civil rights sense, we’ve always known
what a quota was. It was an absolute ceiling above which one
could not rise, so we allow you to have three seats in the medical school, five positions
on the police department, no more for some racial group. The NAACP historically is on record as being
opposed absolutely to the concept of rigid quotas. Goals and timetables on the other hand, and
I think Drew Days have explained this so very well that when you talked about affirmative
action, that we talk about the three word you mentioned we opposed the quotas. Affirmative action was designed to do at least
one thing additional I think to what Mr. Reynolds has said. Surely, to make opportunities available but
at some point there had to be some results. Otherwise, it would mean the thing. I mean why would we spend all this time in
Congress with all this money and end up with a process that brought about no results? John: Professor Allen, I think would you add
like to answer the definition, the question that we… Dr. Allen: Yes, I would. I will say though I have a deep appreciation
for Dr. Hooks’ struggle. I am reminded of Abraham Lincoln in the discussion
with Stephen A. Douglas. Douglas among others tried to read blacks
out of the Declaration of Independence as I mentioned earlier. And therefore, to do so, came up with a formula
that the Declaration was only written for white Anglo-Saxons. Lincoln would run through the Midwest, which
as you know was heavily populated by immigrants then, reminding all the continental immigrants
what that meant for them. Sure, when you’re trying to define things
as nebulous as race and heritage, you’re going to have those kinds of problems. The real emphasis it seems to me of this definition
question proves this then. We are not concerned about what individuals
are in or out. We’re concerned about what is the legitimate
power of the state, of the government. That is the question we’re talking about. John: Professor Days? Hon. Days: On this question of definition, I find
it almost impossible, given the fragility of words, to make meaningful distinctions
among the words that you mentioned. Certainly, we know what a quota is, that we
don’t want to replicate or reproduce in this society ever again. And what I find it helpful to do is look at
the nature of the problem and try to understand the degree to which the remedy is designed
to address that problem. And sometimes, the remedy, as I said earlier,
maybe that aggressive recruitment is the way to go. In other situations, it maybe what we refer
to as goals and timetables or some people refer to as goals and timetables. But it may be a situation as in the Alabama
state police or the Mississippi state police where the court says, “You’ve had enough time
to engage in good faith efforts. From now on until you reach a certain level,
you’re gonna have to hire one black for every white that you hire for the state police,”
with the understanding that that’s going to end at some point. Now as Ben Hooks indicated, while there may
be some instances in which these objectives become hard and fast and employers or school
boards use them irrespective of considerations of quality or merit, I think, again, that’s
the exception. I’m not denying that there aren’t such instances,
and I would abhor those. But in the vast majority of the situations,
what it does is forces an employer or a school board to bring in people who are qualified
who are out there and simply couldn’t be found until the court or an administrative agency
said, “You’ve got to look and you’ve got to come back with something.” John: Next question please? Randall: My name is Randall Raider. I’m with the Senate Judiciary Committee. I’d like to post a question to the entire
panel about one particular race-conscious remedy in the landmark case of Brown v. Board
of Education. A student was guaranteed that he may not be
deprived the right to attend his neighborhood school based solely on race, a very laudable
goal. Now, a few decades later, we find the students
are required by the court to be taken out of their neighborhood school on the basis
of their race and bused clear across town to attend a distant school with some damage
to their education. I happened to be a parent with two black children
and two white children. I would find it very offensive that one of
my children who is black would be bused to another school than the one her sister attends
who is white or vice versa. My question is, is not the race-conscious
remedy of mandatory busing violative of the principle set down in Brown v. Board of Education
that students should not be assigned to schools on the basis of race? John: Who’d like to start? Dr. Hooks: Let me just speak a word to your
question because it’s always interesting to me that even today there are over 50% of all
American schoolchildren bused, 50% of all the schoolchildren in America bused each and
every day. But all this team, all the hell, all the furor,
all the talk, all the problems come from that 4% who are bused for purposes of racial desegregation. I’ve never heard anybody ask the question
of why do we bus kids 30 miles in Montana, because everybody understand why you do it. Or why are they bused into these private schools
all over the South, we understand why they do it. Anytime you have to refer to a situation that
affects me personally that I have been through this as a panel, I can understand how all
of us have personal problems with everything that happens, compulsory school attendance,
busing, where they build a school, why they close a school, and I really can’t deal with
a personal situation. All I can deal with is the fact that if we
are trying to meet what I considered to be the mandate of Brown v. Board, and that is
the segregation separate but equal is inherently per se unconstitutional. And you’d have to read through the tortured,
convoluted history of 31 years of trying to desegregate America’s public school systems,
a very difficult, almost intractable, emotional laden problem. And after 31 years the country still has a
majority of segregated system and busing is only one of the many, many remedies that have
been utilized to try to get that mandate. Hon. Reynolds: Let me try your question this way. I think that the point you make has some measure
of validity in terms of wondering why it is that a race-conscious remedy in the school
desegregation context is tolerable as a constitutional matter, whereas a race-conscious quota remedy
and employment context is intolerable. I think the clear answer on that is that in
a school desegregation or school segregation context, all the children in a de jure segregated
school district are victims and it is constitutionally permissible to use a race-conscious remedy
for the benefit of victims to make them whole. And what the Court did in Swann and subsequent
cases was to experiment with a remedy of forced busing in an effort to try to make those victims
whole by desegregating the system. The difficulty with a quota is that it goes
well beyond the victims and it benefits those who are not victims, who many not even have
been in the work force or were in grade school at the time that the discrimination that went
on. And when they come to the door, the employer
then, by reason of quota and because of their race, has to open the door to that contingent
or that group. I do think that the mischief of that situation
really does at least cause us to look back over our shoulder at Plessy, because to me,
separate employment list that are equal that are gonna relate to or translate into equal
results is very close to the government decision-making which leans on separate but equal to justify
what it’s doing. Dr. Hooks: If the government decides that
we eliminate all references to race and to sex, then you’ve got the perfect world for
those who are entrenched in positions of authority and power. Hon. Reynolds: But that does not eliminate litigation. Dr. Hooks: There’s no way to measure whether
or not you’re making ascertainable progress. Hon. Reynolds: And I think that’s too broad Dr.
Hooks. That’s not what happens. Dr. Hooks: What we were trying to do, we confuse
what has happened and it looks like we are being blind to history. The 13th Amendment and 14th Amendment and
15th Amendment will pass to achieve certain results and as Mr. Days has so eloquently
pointed out, obviously, the 14th Amendment became a good amendment for everybody not
just for black people, for everybody, equal protection of law. And now talking about colorblindness and sex
blindness, as if that’s a new thing just discovered, and to put such sanctity on it, will not lead
us to the elimination of historic discrimination which we’re trying to get to. Dr. Allen: Let me just day this because I
do have to add it. I think I have to respond to the last statement
to think that colorblindness has only just been discovered completely abstract from the
fact that, for example, between roughly 1946 and the Bakke decision there was no more frequently
cited dissenting opinion than the Harlan opinion. It showed up in 64 cases, and it showed up
very frequently since then, and of course, before. This is not new. This is a story a story of America that we’re
talking about. John: One more question. Yes, you? Gayle: I’m Gayle Bradley Starkes. I’m with the Appalachian Regional Commission
and board member of the Washington Urban League. I have a question for Professor Allen. I would like for you to clarify your opinion
that you felt that the Constitution did not perpetuate slavery prior to the Reconstruction
Amendments. I would like for you to clarify that when
indeed black people were in slavery when the Constitution was written or in slavery sometime
thereafter. And also would you enumerate and explain what
do you mean moral lights? And what mechanism would you substitute for
affirmative action? John: Professor Allen. Dr. Allen: Let me start at the middle. So “moral lights” was Abraham Lincoln’s phrase,
I was quoting directly. I can quickly tell you what he means by that. He was referring to the influence of that
principle in the Declaration of Independence that all men are created equal, that they
are endowed by their creator with certain rights, since we know the listing. Those are moral lights in the deep sense,
not as a mere philosophical gloss. They are moral lights in the sense that the
life of the people of this country has been framed by those principles. We live our lives governed by those principles
and that leads to answer your first question about the Constitution. Let me just take a moment because I think
that there’s a generally pervasive misunderstanding of this country’s history, which we genuinely
need to struggle to get over if we’re ever going to react in a way that’s compatible
with the Constitution itself. Yes, slavery existed at the time of the Constitution,
at the time of its adoption. It existed before. It existed afterwards. There are many ways to talk about this. I think the one that is most illuminating
is to recognize that the founders while slavery continued to exist, did not place a stamp
of approval upon it. They went as far as they could, in fact, in
the direction of placing a stamp of disapproval upon it. The “three-fifths” clause to which Dr. Hooks
has referred as well as the other provisions in the Constitution never mentioned the word
“slave.” And they said so we intentionally didn’t want
to stain the document with it because we looked to the day when slavery would be gone from
this country. The very first constitutional debate in the
House of Representatives in the Congress of the United States was a debate over slavery. In that very debate it was James Madison,
who was the most eloquent of all, the Father of the Constitution, sealing about this that
ultimately they hope to rid the country of this sin, this stain of slavery. The question has been with us ever since the
beginning. It is with us now, obviously. We continually live with its consequences. We continually have to make decisions in light
of the possibilities that are there are for us. But we understand those possibilities in that
historical context which shows slavery, in effect, being tutored by the guiding principles
of the nation itself, of the Constitution. We don’t have the end of slavery, the Civil
War, the Reconstruction Amendments simply because there was a fantastic revelation all
at a certain moment in history and what was all dark suddenly turned bright and shiny. We have it this evolutionary effect, if you
will, of these principles was there working, fermenting to produce the reaction that not
only would abolish slavery but would lead us all ultimately to adopt the principles
of the American founding as our own and make possible a genuine national life in which
we forget about group rights. We talk about the rights of human beings,
rights belong to individuals not to groups. John: I will exercise, if I may, the prerogatives
of my position because we have run out of time and I think that your answer was very
full and to the point, so I will hope that the questioner thinks so too. This concludes another public policy forum
presented by the American Enterprise Institute for Public Policy Research. On behalf of AEI, our hearty thanks to the
distinguished and expert panelists, Professor William B. Allen, the Honorable William Bradford
Reynolds, Dr. Benjamin L. Hooks, and the Honorable Drew S. Days III, and also by the way thanks
to our guests and experts in the audience for their participation. Goodbye from Washington. Male: It is the aim of AEI to clarify issues
of the day by presenting many viewpoints in the hope that by doing so, those who wish
to learn about the decision-making process will benefit from such a free exchange of
informed and enlightened opinion. This public policy forum series is created
and supplied to this station as a public service by the American Enterprise Institute, Washington,
DC. AEI is a nonprofit, nonpartisan, publicly
supported research and education organization. For a transcript of this program, send $3.75
to the American Enterprise Institute, 1150 17th Street, Northwest, Washington, DC 20036.

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  1. I'm sure it's been said and I say it often — we'll continue to have these same conversations and same problems for the next 50 years if the same policies are in place. In 2069 we will still hear about black impoverishment, women's performance in the workplace, and the white man's role in it.

  2. Because of population sizes between each race in America even if we reduced unemployment among black people over the 85% marker we would still have more white people in the work force.

  3. It's so utterly refreshing to listen to a discussion panel, argue their respective cases in such an intelligent and mature manner. Compelling arguments were made by both sides, leaving the viewer to decide which carried the greater weight. Sadly, we must wind the clock back over 30 years to find such compelling political discourse. As our educational system has been commandeered by Leftist academics, now for at least several generations, I don't expect the return of such quality exchanges any time soon.

  4. Affirmative action is blatantly unconstitutional. Everyone should be treated as an individual, and be given the same rights and opportunities. Professor Allen hits the nail on the head.

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