Quotas for negroes: insult or compensation? (Episode 7 of 13); The law and society

We bring you another staff discussion from the Center for the Study of democratic institutions in Santa Barbara. On the subject of affirmative or reverse discrimination in the eye of the law. There is in this country no superior dominant ruling class of citizens. There is no caste here. Our Constitution is colorblind. And neither knows nor tolerate its classes among citizens. So wrote the first Supreme Court Justice Harlan in 1896 in his famous dissent in the case of Plessy versus Ferguson. Today that dissent is being vindicated by history. But it was the majority opinion upholding the doctrine of separate but equal facilities which for 58 years remained the law. Not until 1954 did the Supreme Court in the brown school segregation case vindicate Justice Harlan's dissent and incorporate his colorblind doctrine into constitutional law. Today among those who hailed the Brown

decision a large body of opinion now holds that it is impossible to remain colorblind at this point in history because special consideration must be given to Negroes to help them close the gap created by three centuries of deprivation and exploitation. How asks this group is the goodwill of the community to be judged or the effectiveness of integration programs tested unless race is taken into account. Others both sincere and ingenuous use the Harlan stricture to be colorblind to argue against making the Negro a favorite of the law. The first Justice Harlan gave his answer to that argument and another of his famous dissents. It is I submit scarcely just to say that the colored race has been the special favorite of the laws. What the nation through Congress has sought to accomplish in the reference to that race is what had already been done in EVERY STATE OF THE

UNION for the White race and nothing more. It was not deemed enough to help the feeble up but to support him after. Actually race is on officially taken into account on many levels in public housing in appointments to the bench and to government posts in civil service and in schools. But the consideration is tacit understood off the record. And illegal. In the eyes of the law. The Constitution is colorblind. Moreover liberals black and white are unwilling to give up the constitutional clause that forbids classification by race except on officially. Said Lauren Miller vice president of the NAACP. I think that the forbidden classification doctrine must be elde onto at all costs. Because I think that this is the inarticulate major promise in the old series of Supreme Court decisions the Supreme Court did

nothing in the school cases except say to the states that for the purposes of school attendance you may not classify your students on the basis of race course it bootleg it back in in the all deliberate speed aspect of it by saying that well you may for the moment use this classification. And in the in the jury situation it simply says that you may not use classification to exclude negroes from juries in the city. It says the state may not classify its citizens on the basis of race to determine whether they may or may not enter a public restaurant or a place of public accommodation. So I would certainly restore this classification doctrine to its original basis and then of course I. I am at the same time wanting to say that the court may take cognizance of the root social realities and get off into this field of preferential employment or

affirmative integration or thing to this guy. This of course I think was dealt with by the Supreme Court to a certain extent in the cases in which the assertion was made that fair employment statutes were invalid because they proceeded on a racial basis this is Corsi vs. mail handlers Union the New York case Frankfurter has bringing in resoundingly language in court in which he says that it would be a perversion of the fundamental purpose of the 14th Amendment to deny to the state the right. Well really the right to take account of race in order to cure the inequities that are going up as far as race is concerning. And I think that that is where the matter must stand. Now that because of the historical growth

and the use of the doctrine of racial classification that unless the states and the federal government can now take corrective measures based on the social reality then we shall forever not for ever because of course time will cure everything but for the moment we must leave the negro running 10 yards behind him. White American in this whatever race he runs whether in schools or in employment or you know matters. In the past 50 years most of the progress made by the Negro has been the result of laws made by the court and not as the outcome of acts by legislatures. Today having almost exhausted the resources of the court the negro was turning elsewhere for redress of his grievances. The Honorable Thurgood Marshall counsel in the historic school desegregation case

and now a federal judge acknowledges that the usefulness of court litigation based on the constitution is diminishing. I do not think that do you. Will is a litigation founded in the Constitution has been exhausted by whatever victories come so far. So there was no gainsaying that the fact that a far larger role must be played by legislative and executive action and public persuasion. If the injustice and social waste inherent in racial discrimination are to be eliminated Lauren Miller puts it another way. We know where we want to go but we have run out of law. One reason for running out of law is that constitutional guarantees apply only to persons and not to groups or races. Another is that even where a law has for decades guaranteed fully quality as in many northern states the Negro has been the victim of custom a custom so pernicious and so deeply

embedded in the culture that it has had the force of law perhaps a force greater than law. Whatever legal victories may lie in the future for the negro it remains largely in the area of public persuasion that his rights must be realized that he must when in fact what the courts long ago settled in the law. For liberals everywhere who support the Negro in his struggle. The dilemma lies in reconciling opposing values in clinging to the color blind doctrine while using race as a measure of a community's goodwill. Of accommodating negro demands which threaten to change our institutions while protecting the present structure of the society of striving for an integrated community without sacrificing the values of a pluralistic culture. Typical of the ironies cast up by these dilemmas is the revival or new respectability of the quota system. For years democratic forces in the country have struggled to outlaw the practice of limiting the admission of certain groups

to some institutions under a quota system. But today these same liberals are demanding that preferential treatment in jobs housing and schools be measured and tested on the basis of just such a quota. The subject of quotas touches tender sensibilities on both sides of the argument. Whitney M. Young Jr. executive director of the National Urban League says it is not a quota but a guarantee against tokenism. Where Negroes have not been employed in the past at all levels says Mr Young It is essential let there be conscious preferment to help them catch up. This does not mean the establishment of a quota system. An idea shunned by responsible negro organizations and leaders. But because we are faced with the hypocrisy of tokenism. Where the presence of two or three Negro employees is passed off as integration we are forced during the transitional stages to discuss numbers and categories.

During the discussions of this issue at the Center for the Study of democratic institutions there was no disagreement about the need for compensatory programmes to redress the grievances suffered by the negro. There were sharp differences about the WOT and the WHO and most particularly about how the inequities would be corrected about the design of the programmes and about the pace. No one quarrelled with the end only with the means. Harry Calvin Junior of the University of Chicago Law School arguing that quotas are degrading and are used to limit rather than to expand opportunities reflects the awkward position of the white liberal. I say that with this faith myself because it's so hostile. And I suppose I'm relying on the fact that it's different for me to say that than for Governor Wallace to say it. The discussion that follows was one of six seminars on affirmative or reverse discrimination. In an earlier meeting the chairman of the Center Robert M.

HUTCHENS arguing for the colorblind doctrine suggested that a program to offset the disadvantages of poverty as poverty would automatically assist the negro to catch up without labeling the program negro. Harry Calvin's reply posed the tension in the problem. Color conscious choices ought to be avoided Mr. Calvin conceded. But an attack on poverty per se would only entitle the negro to a fair share of white misfortunes. It would not adjust his inherited disadvantages. As the meeting opens Mr. Calvin takes up the discussion on quotas from where it had stopped the day before. I could talk briefly about three things that came up in this guy's done away last time. So I've thought about a little more and soon we might be able to work through a little sharper position on and I think as a group we have. A first is let me pick up for a moment again the question about the quote which you were interested in last time which I think now I think I have somewhat of a position. It's probably a problem your

approach to defining what one means by the court or how it's going to operate and exactly the purpose for which it's being used I think if the question is the one Mr. Hodgins is asking out there are there any conditions on which a quote is a sensible proper device to use. Oh I think I'm inclined to think the answer is no now. Oh I can see some. Counter arguments to some way there that I take it the problem is a kind of statistical one of comparing always what the quota produces. That's what a free choice without the quote It would have produced that must be what we're comparing implicitly. That if a quarter comes out exactly the way the free choice would have come out of course there's no objection to the result. The puzzle simply why anybody wanted to bother doing this record and sadly it happened that way. Then it seems to me to be interesting if the weather comes out higher or lower than what the expectation was in advance. I suspect that the prejudice against the quote is it almost is always used by a group to as a limit with the expectations going to come out lower than a free choice would have come out. That the real meaning of the quote it must be that by definition you're not going to take the next qualified man after the

quota is filled in this which is what of course I take really means it doesn't mean that what it doesn't mean anything if you stay that way it's pretty hard to make out a case for it because you're always assuming that when the quota becomes operative as a choice factor it becomes a bar to a choice that otherwise would produce a different result. I mean a different result in a sense an eligible person is now being kept up because of quotas. It's filthy Jewish applicant for medical school can't come in because we've got the 5 percent to 10 percent of whatever it is we would have. To talk about that which has no case for it. If you don't try to make a couple of the counter arguments that can be suggested and half the one with the one I think I was making the other day to avoid the irritation of evidential issues here you might get a delicate sampling operation in some areas figure out what a sensible choice a negro unskilled labor would be in a given kind of industry. It was chosen in a fair random fashion. Then agree that that would give you 10 or 15 percent of whatever it turned out to be and if you got that ass between the Negro leaders in the in the white leaders in the industry

there would be a kind of treaty agreement that would be a satisfactory solution of the problem of employment and industry there be no arguments about it. Once this would be accepted in advance as the criteria of choice having been made appropriately that's using how it really is a treat of ice and saying that you can't get perfect accuracy measures like this in an unskilled field you probably could sample pretty well and predict and population bases who would get in. And let's not get so excited about if we do it that way. There probably are some occasions where between the two sides a treaty might be politically meaningful. It's a little hard even then not a wonder it seems to be slightly degrading thing for the negro side in a slightly puzzling thing as to why they want to. Why who wants to bother with the quote It is a device to me it's a quote is going to get you have the choice of consequence. I suspect that the thing that complicates the problem is there are some issues in which it depends on how much strength the minority must have. There must be some issues on which a quote is a pretty good thing because you get that many in a minority might be wise to take a quarter. There is again the kind of thing that Perry was

talking about last time that this break even called it which I guess in housing circles is regarded as a very shrewd move which which in what many ways must be a degrading thing for the Negro to admit that they will take less than their proper share and some sense of the population. Because if they are anymore the white group will be so upset by it you will get a disaster. Finally the. I kind of interesting thing is to compare at the Supreme Court which seems to me as an example it doesn't both directions. I think we'd say quickly that a quote and I think what if a Supreme Court is a terrible idea. We would much prefer an area probably to let any qualified man for the job get the job and that seems to be the stance. Yeah in fact there's a well-known quote of his Supreme Court appointments which I think is implicitly no secret in America. I was the one Jewish member of the court apparently one Catholic member and so forth. And I suppose in some ways if for example a Jewish group might well feel that kind of that quote is there. Because we're all sure having one Jewish judge I mean if we get one to be frank about it that appointment along stuff. Must be true it ought to summarize these meandering thoughts about the problem that basically it's a suspect device

at least and basically the purpose of employing it must be to put a brake or a limit on the number of eligible people from a given category that otherwise would be admitted by free choice. And insofar as it operates that way it must be bad and only device which a minority group under under great pressure and in a moment of weakness would accept as being a move ahead to kind of compromise with reality as if they accepted it would assure them something they would not have otherwise had it's not clear to me why it's a kind of disaster or isn't if you saw it it would have been a disaster because it's seen the housing situation where you have a quota because of the negroes I was right and the whites would have fled. That's interesting. For whom would that have been a disaster not for the negroes the whites of fled the negroes would have moved in and lived in the apartment you know not how the whites left it. Mr vary that way presuming you want to integrate a and I can see a real reason for getting out of the slump and not regarding it as a disaster if I moved into a into a nice and pleasant neighborhood but the whites moved out I'm not sure I'd regard that as a disaster if I were in the group but not what you do if your neighbor a leader with some capacity here to arrange things.

Do you accept a quota as a as a way of getting some public housing that will be given to you on a quota basis because it permitted you have two values now you the value of living in the proximity of whites would have some value in integration you also have a value in getting out of a just a miserable place to live which is the slums I'm not exactly sure how I would feel a decision already until you're already entitled to segregated public housing is just as good as white public housing you know already that he's talked about. It has been implicitly accepted it is because the negroes accept the fact that they don't want a public housing projects turned into black public housing projects. Even if they were they the highest quality housing available at any price. And that's why there is an implicit acceptance because they recognize that something around 15 percent that whites will leave and they want the whites in despite all of the advantages it might accrue. Negro leader except that kind of quote it's a degrading fact for him to accept it because he has to admit that the mere presence of his own people are beyond a certain

point will cause difficulty. Whatever that is most of the time he was about I don't want to answer that omission and you can only expect him to like you. Well that's generalizing the point I think I think I'm going a little farther than Harry as well as one example in saying I suspect every time a boat is used in race relations it has the quality of being a degrading thing whether the strong side is offering it to the weak side and that's the nature of it. That's the purpose of it really. In Canada levels I think we have a nice quote I guess I'm really saying that I can't believe the real world will produce about one quarter of life on the other five Negroes all whites on my feet or just turn around and sign for to make them to me. Thank you to Sam from any other issues that you know because you're going to get that demanded 25 percent 35 percent of a given category I doubt you get a negro's Watson just because a rational sampling of what proportion of the data we get by a free choice independent column I turned out to be 10 percent.

And the reason it wasn't making a demand is there where that's where we come I mean is it an effort to find out exactly what would happen if every so often efforts it with care about never try to attack the old notion from my all based fights are not competent to judge their own cause here it seems to me all of this is shall we usually want if we use them as white South What will we assign him that will look just a fact. I say if you turn a question wrong quotas is a matter of somebody exercising me the power to make an assignment of some supposed what they give it to the other side you can argue that theoretically that whites are imposing the build up of where these quotas work. They are negotiated with negroes. Otherwise they would not work. So you cannot say that the negroes are fully on represented in this process at a minimum they are accepted by the negro leadership otherwise they don't exist. You want you can say that there is some coercion and so forth but the negroes are participating in the process and all I'm saying.

I agree the sad thing about it is. Case of a place like Baltimore is that the negroes are accepting in that case of 15 percent approximately 15 percent maximum when they make up 35 percent of the community. That's right which then especially now nationally that you know maybe the percentages are right but nonetheless it is an unfortunate thing that in places where they accepted the name of the big cities they accept less than their proportion of the population at that point. But now the pigs problem and letting the negroes make the quota raises then they hope that that issue on the opposite side. Suppose then we have negroes making the quotas for how many grocer what percentage of negroes are going to be employed in a post office which was apparently the Texas thing and they went well it isn't merely simply saying. That question arises. There is a question and no doubt but we don't make a difference ping would say what who cares about the whites. That I agree but the opposite thing to them around question arises

in that situation. Namely that everyone in the operation gets to say that this fellow is in his job and something like the same position as the boss's son or you know the guy who married the boss's daughter. Well obviously he wouldn't be there and he gets to know what he feels. So even though they make their own borders. If the area you know is OK if the quarters are in some abstract sense more favorable then statistically they might otherwise get no matter who makes them. There's going to be a very bad degrading factor in terms I think two different problems. You get to a defect percent of the population. The neat effect of Public Health. But that doesn't mean that if you get fat with integrated health just a minute from 20 percent in black homes completely black and then 15 percent. But the. If if they get an un share of the public policy that's another problem another

problem I think is if you take public housing and you take a given income level to home it's to be made available and the ideal is a thousand to distribute it without regard to color. And we'd like to know how that would come out. Apparently in all cases where using a quote it were afraid to let it come out the way it would come out if you left it the choice probably because we suspect we can't police the choices enough. But the idea must be that what a free distribution would turn out to be I suppose taking your example would turn out that there was respect to public housing operate to income class of all 4000 something like that that you could make a reasonably decent statistical guess as to what the legal share that should be in fact if you are making a judgement after the fact one of the interesting things about this is that you use quotas all the time to make a judgement after the fact as to whether the choices have been made properly or not and this is the criterion for deciding there's been discrimination in the field pairings argument eludes me entirely about the rule having to make these decisions to the nigger minority as anything but disarmed these days used the negro minority as

special protection from the federal government. And so his self-help movement he has great economic power already is making he is making the point community yielded almost every point of contact in terms of his own stated objectives was not to disarm. I'm therefore saying that the Negro is participating actively and affectively in the standards of justice and not being arbitrarily set by whites as a matter of fact the standard set by whites are having to yield to the participation of the Negro in determining what these arrangements will be. So is this really all abstract notion of white majority it is a majority is simply imposing arbitrarily its will on the Negro people. It did this for many years it seems to me is not any longer true. The other aspect I'd like to pick up is what we've been talking about several times now is the compensatory adjustment and I find myself very puzzled by that issue I think was not going to do much about that specifically. The uneasy about it.

I certainly am. I was saying last Monday that I thought was very fair was it nothing i'd be done about this. I now think that's a great issue and I play it. I want to reach the great difficulty about the current movement by putting a problem somewhat like this is probably repeating what Harry is saying if you assume for example that tomorrow the world will be color blind at long last and you look at the actual distribution of worldly goods opportunities and so forth a negress. It would in fact be very unsatisfactory and the question therefore is what if anything should be done about that now they've got the white senses that not very good. And the problem for us is not that we're not in favor doing something about poverty and so forth but whether is there any special urgency in doing something about Negro poverty because of the inherited grievance of the Negro he is poor in part as Dick has been saying because we made him for I mean it says we're more responsible for the difficulty here than we are with respect to the rest of the society at least in a normal view. Therefore it is a kind of charitable impulse that I think everybody is sort of reacting to of the moment of feeling a little guilty about this and wishing there was some graceful way of making a compensatory gesture to the Negroes over and beyond what at the moment in terms of

function they're entitled to because after all responsible for their being kind of crippled culturally I find it's absolutely baffling because I'm moved by the same charitable impulse and can't really quite see any way of gracefully executing it. And it's kind of funny that the law does give redress and damage you know actually to become a man is like the law is very heroic in its effort to in some fashion trying to compensate for that kind of crippling it into something serious about it. You're asking now by a crude analogy grabbing so to speak culture because I feel like this race for three generations to give compensation for that now that seems to me to be not very easy to do are not very graceful to do at some level I'm sure it's wrong that's right and I think the thing I meant last Monday I still would stand on and let me put it this way if you have a clearly defined function for which people are being admitted it must be wanting to have a compensatory quarter for the negro no matter how we feel about it. That should not be given jobs you can't do and should not be admitted to school he's not qualified for somebody and it's not at a camp to make any argument about that. I don't think you really would.

I don't think you can destroy the whole society functioning in order to redress the good with the struggles and such but I want to bring a point no I just want to just want to state for the public interest that I don't accept the proposition and so on. Let me put it seriously with my own sister of Mr. comment when our children are the reason that is. Let me let me let me let me say this part of the I strongly as I can and I would be against negro featherbedding as being an atrocious idea I mean it seems better to get. The negro standing around a job he was given because America look or that he can't do it and you take jobs if you'll if you let me use my clinch your case which is always baseball. But the negro the bass 100 doesn't get to play on my team. I mean I can understand without spoiling the game that you let him play grounds and that he has to be odd to play too because we simply have to have one negro playing center field or something on this team seems to be at that level no nonsense unless you wish to destroy the game which you might think is enough of a value. Kinder wiser to be worth doing. All I'm saying is that not to offer this is the answer by any means the whole question raised or not to disagree with what Phil Selznick was saying yesterday or the other day about symbolic fudging and given places like the appointing of judges.

I would agree to do little things like that sort of under the carpet but a frontal attack on certain. Activities seems to me meaningless Inigo disqualification has to be chemically recognised and can't be brushed off by an effort to pretend it's not there for the moment. Because he's a negro because we're responsible for his disqualification all of which I agree with. Therefore I find it a great embarrassment and really a very great puzzle as to what the decent thing a society could do it at this level of impasse is something we take seriously and I think we should have the same hereditary grievance in which we are not adjusting to end of the millennium will not really come when we simply get color blind choices being made because then they'd be disadvantaged. Reality of the negro because of the inheritance of slavery will become more apparent than ever. I don't know what to do with that. It's not a very good idea and in time possibly enough moves along the education line like that will cure the problem. You accepted principle of compensatory action where education. There's nothing about a special school of strategy activity which is involved this is a

separate case it isn't like a baseball game where you know the circle someplace so you break it by compensatory actions. Actually I want to be clear there are some limits and any very serious ones to what one could do out of an abundance of good will on this. For example I would not admit Negroes to my law school on the grounds that God has a Negro students in it. If in fact we don't get any qualified Neco applicants I don't want to get this thing out than talk about it when I'm ready to Calvin's ready we'll talk. Are you ready or not almost ready. Therefore they the kind of creative possibility here must reside in some graceful gesture that the white race could make the Negro race by way of some kind of compensation for the past grievance I don't think you can do that through the legal system very easily. I get trapped in between two difficulties here one is at the level of specifically permitting the negro to enter improperly given functional activities like like baseball law school. Giving kinds of jobs. The other is to give a tax subsidy or a money on a graph we can see then I

often have with a given 5000 out at your grandfather's place I think. Are there things manfully discussed integrating although in some ways better than the other move at least doesn't interfere with things which I can't believe that that's the right way of doing it. The educational compensation device obviously is relevant here and important. It's going be very slow and one of the great issues is why the Navy is going to be willing as a matter of time to wait for us with all deliberate speed to adjust the problem of cultural hereditary prejudice as opposed to the problem of the installed aspect. I think that the alarming thing at the moment or maybe the encouraging thing is it indicates a sign of progress as a negro is now becoming aware explicitly of this side of this crime and this is the new frontier of the Negro problem. It's important also to recognize that this is a new frontier in order not to use or react to this problem as a basis for rejecting other moves that are to be made in an egress behalf that don't involve the compensatory point. We should not be against an FPP Sheikh is using to negotiate not be entitled to a compensatory adjustment.

That's mixing up two things are quite different. At this point let me admit my bafflement and subside is your position any different from had done a wise on reversed discrimination Firman of integration. Depends I think depends I Larry we're talking about I find a school problem. The racial imbalance in the school thing for special and and and puzzling. If we're talking about jobs it must be exactly the same as I can't imagine a legal basis or moral basis for claiming they don't qualify men get jobs where Caucasians are really relevant and put it in a legal habit becomes an obviously preposterous claim it would be unconstitutional and I think you're one of Mr. ferry's comments on this. Yeah it strikes me again as I was saying your OP or sorry could be illegal. When we exhaust our legal remedies and ask all legal questions we're still left with a great many unresolved issues. I think it ought to be clear what we're

talking about in percentage terms here. First place we're talking about very very few people making protest but they're making a hell of a protest perhaps no more to treat 4 percent of all of negroes in the country. All right Bob protests which are the occasion for all of these conferences on conversations on legislation song this is an R. I think that's quite important to me to keep in mind whether you maybe heritage or a line on the other 96 or 97 percent of the negroes one is talking about a consensus of in some ways I am reminded of a little bit of a disarmament proposal that is alleged to be made by this country to there you are right about two or three years ago we've suggested a percentage reduction in nuclear arms regarded both stocks at the time the proposal it's a hundred percent. We would pull down 18 percent after.

We both agree to cut over a period of year 80 percent of our stock. This part of the calculation for that time would have left us with around 400 or 450 nuclear weapons and the Russians with maybe 15 or 20. Seems to me that this is some part of the way famous so are working out of the negotiations between the white and the make and if you ask me to talk about what is the what is the revolutionary important situation after we have exhausted these legal possibilities. I just don't know but I do believe that there is and I don't believe any white liberals not I'm I really agree with the statement of the negro birthday. I don't think we can see this very week and see all of the regular mansions. I'm sure you can guess

what the human dimensions of this are on the other side. Same with the statements made it leaves me baffled the people who make the statement that no white man really understands this negro cause I always assume they perfectly understand the white man's side of it. There's no question about that this is a very simple and your judgement has no consensus whatever. I find it just as easy to guess at what the nigger attitude as I do to guess at what the right attitude is. But it seems to me an airy Calvin's problem. And if you undertook a public policy which was intended. To correct the disadvantages social and economic all of the people who are afflicted by it and which would include some whites and a disproportionate number of Negroes. That you would be. You can call the compensatory if you want to. The effect would be compensatory theory embraced that and not

this would reach the immediate urgent grievances of a large proportion of the Negro people understand I do not suggest this reaches all the grievances or grievances that are far beyond that. But I suggest that this is almost a necessary precondition to doing anything much about the other grievances that do exist or an attempt to do this all at one time. It seems to me it is virtually an impossibility because being is right when he says that the voice of the protest the action and protest movement is a small percentage of the Negro people. The other is are sympathetic with this naturally. But they aren't doing much about it. And it seems to me there are two ways to interpret that the way I would interpret it is that these people are so disadvantaged they're almost incapable of protest at this stage in their development it's having to be carried on them by their own leaders. And I want all of us white liberals have been displeased. I think that the one striking issue that's raised here is not the going over Harry's my putting

and that's right. I totally agree with the bay comes out I think we all agree on the things example about the AMA the percentage is right somehow the target up on now has been the elimination of our conscious choices. Somehow the realization of the elimination of those will not because of the bad inheritance for those what we think would be the proper result is as I think pretty clear and it simply means that you could have a perfect execution of a firm point and act in a sense that no one literally ever made a choice on the basis of cohesively selected qualified applicants for the job and no negroes ever got jobs because it is a matter of cultural inheritance there were no train Negroes for the job and we are responsible for the fact that there aren't any. I take it as being the given dimensions of the problem. And this raises a question. I think Harry would sign and that this had been a formulation that earlier I would have been quite sympathetic to this therefore brings you to the solution of this problem will await the solution of building a better society generally because a new group will be like the other poor underprivileged or underprivileged in what we have to do is until we can solve the problems of poverty lack of

training etc. in the society as a whole the Negro will not move ahead on this ground to take his luck along with the white man he's now got at least a fair share of white misfortune so to speak and if that turns out to be distasteful but that's the way it is in the society he's no worse off than anybody else. And that's the end of it I'm not so sure there isn't some case and this is what is really kind of interesting special question for doing something about the negro poor because of the negro poor it without taking on the whole problem of poverty and that's definitely the one challenge that I would hear it. I don't preclude that I'm using without everyone not at all a specific way. I thought I was trying to say that this is a special situation that requires a number of special methods and if you want to say that those are compensatory it's alright with me. I can't I'm not going to make any attempt to make the case again that maybe fair would still has some weight for me. That is for compensatory justice but I think I can point out why your case isn't as clear cut as it seems to be on the surface but that's all I wanted I just want to indicate why I think there are some doubts about the problem it's not so precise.

If you take it as a kind of a synthetic after your truth this is the point at which I'm not an intuitionist in the sense that there is some kind of necessary connection between ability and function. That is job in the problem be very clearly settled immediately. Since the problem of how functional to be exercising to me to be one which could be decided on the basis of consequences to a not simply on the basis of some some prior claim to write. I have doubts about precisely how a function ought to be fulfilled in the in a given context. And I can see three conceivable ways one of which is yours. Of relating individuals to a function like a job. I can see doing it on the basis of ability I think recognize the claim and match but it seems to me to be a claim which is not the sole claim and see other ways which incorporate from even notion of justice and not the notion of mercy which are other ways of relating the notion of a claim to a function. What I say is ability. I can also see a reasonable case to be made out for relating need to function that is not solely the ability of the individual having the function but the effect

of the function upon the individual who's operating it is not simply via the ability of the individual to carry out the job but the consequence of the job upon the individual who is to be employed by it. That seems to be another consideration which one has to be involved in taking a total sense of justice is and I think I can make good historical precedent by showing that the idea of justice has sometimes been defined in terms of ability that's always been one definition and it's always been defined by another group in terms of the notion of need. For example the Marxist definition lies heavily on the notion of neat I don't find that totally irrelevant and it began at one point and I have it I want I want to take a far away from it but at one point even a Marxist formulation but distinguished in the distribution of it so to speak and giving birth and Jap because of Mare personality and self what he needs the dignity of having that job. But you act on the basis of ability remember the slogan but you're compensated in some sense on the basis of need not on the basis of ability so I think it is good for the enterprise on the basis of not ability I mean you don't get to join a team on the basis and you might be a bit late but the point is that when the when individuals with some sense being rewarded in a society a factor other than their ability it

is relevant to the determination of how they are to be rewarded. Some sense that you believe to carry out a job isn't it. Context almost like a reward now about the way that assumption should be taken as Ira that we can certainly separate out the private rewards of probable get to the activity and again we engage in a certain level of activity is one of the factors involved. I'm simply suggesting if there were a criterion other than the strict criterion of ability which might be relevant I could think of one third criterion which for which a case could be made and that's the general social consequences of permitting individuals in this case to carry out a given function in other words I can see relating the individual to the job on the basis of the question. Is he able to fill it. I can see relating him to the job on the basis of the question. What would be the effect upon him of the job and I can see relating it in terms of the problem of what would be the consequences of such on society at large. Permitting him to go to hold this job. It might perfectly well be true that the job would in some sense suffer if an individual who were not qualified to have the job. But I don't see why I am prevented from balancing the disadvantage of having the job suffer as over against the advantage both to the individual and to the society at large the

negro's for example at being shown that members of their race are as a matter of fact capable of holding such positions I have to consider the whole context of the operation. I'm not trying to make a case for these other two I'm just trying to give you the reason why your position doesn't seem to me to be is obviously true as it might seem to be I can see other cases being made out on of this size and I'm not trying to work to make them out in any kind of detail now but I don't think you can simply say ability job. That clinches the matter because of some kind of connection between the two and a man is not able he can have the job. QED the matter is solved the ghost can hold these positions. This is what comforted me. That's a problem. I would like to make to him back. First of all that notion of Job is a confused one. Yeah so many kind of different jobs. Graduates fission sees the most important thing and orders. Confidence is more important for example to have a policeman. It's much more important to have a policeman in your neighborhood than to have more qualified policeman so I think that we should

not classify all the jobs on the one same category and keep them on the same vague. I suppose everybody will agree on this and we can't treat one job and one day you could trade one job one way or another jobs are not a way to put ourselves you objections and then the second one concerning diety of justice. Two conceptions of justice I would say for turning to equality. Image fate. One conception is to treat people on equal Munna. Take them as they are. That's another one. Trying to equalize the situation to set up an English to make them more equal for example you may ask the same back from everybody for a percent on what you are buying but you may also have a bigger share from people who know

more and give more to people less. Doctors are very very accepting. Fiscal legislation we don't say that everybody should pay the same share of taxes of course on a good income we accept nothing comes and if we could also accept that the what we ask people to be also policy for example. If people were to let our incomes we should receive more scholarships so should pay less event to come into the schools and so on and that is I think normal way of doing things in Socialist your if you want some props for compensation. The Mexico reaction actually stuck with just the idea of a progression a progression a time in which the

various sectors of society staying relatively in the same light. Are you saying there are some not correcting errors in the market some saw that if you give the process a long enough time the compensation will take place. So I think probably the latter but I'm appalled and I think we should look at the fact that we're talking about a long period of time for that process to take place. Let me state in terms that are familiar to us now we examine three layers of the problem seems to me over time. The original historic view of the law and apparently of the society was to get rid of the legal interference on behalf of race prejudice I mean it was state action. The law's action to support the prejudice that was a target. If you take the original construction the 14th Amendment we now come to a point where we all agree that the custom itself of racial prejudice is somewhat independent of law here. Certainly wider than the law and itself will survive the breakdown of law in the sense of getting rid of limiting the living state action turned out to be a very hollow narrow

way of solving this thing. But yet there's something about the custom. This is we reach the third stage of it though in a kind of special having this morning which is even if you knock out the custom of racial choices. You are left with the inherited differences that they have a rightful choices over 75 years is produced and you have a problem of distributive justice which is it was damn awkward and very serious and the question which I put it into a still a serious question not not really solved anything has been said except over a very long period of time as I can see over 50 years is something I might might make great inroads and it almost comes back to the damn baseball example again in Kenya without spoiling the game to solve this problem that is just running according to you. You see it's a pleasant game for you to look at the game style damn good for the other people that's the whole point I want to base our lives so they have famously said a funny thing to reconstruct society. Not likely to know other effects of it up in a row probably know that the big it may be the

catalyst that will call there by far at that. Oh I thought it was you know I think I think I was on a television program in Chicago a couple weeks ago with Martin Luther King Sr. and the same conversation was held in almost the same terms and often very familiar and old Dr. King didn't say anything of course with heresy but finally he was asked what he thought and he said Well tell me when the negroes who are presently qualified are occupying the jobs they are qualified for. I think we can start worrying about this problem. But as soft power I kind of believe I will go through it all. I had a pleasurable as well but Negroes can be a boy band with another two years that this will be universally true. Problem is the other end of it it's a really good reason to jab in the morning including the presidency for which seriousness and you go well if you have been listening to

another of the discussions from the Center for the Study of democratic institutions on affirmative or reverse discrimination. The discussion was led by Harry Calvin Jr. of the University of Chicago Law School and was recorded at the center during the two months conference on law jurisprudence and the Bill of Rights. Participating in the discussion where the chairman Robert M. HUTCHENS Perlman professor of logic and ethics at the University of Brussels Belgium and staff members Richard Lippman. How reaction MAR. W.H. Berry and Harvey wheeler. The conference was taped for the set of records and was not as you have heard from the birds in the background recorded under broadcast conditions. In cooperation with Pacifica. It is being presented in the hope of contributing to the public dialogue of crucial issues. This is Warren priest speaking from the Center for the Study of democratic institutions in Santa Barbara.