Ladies and gentlemen, may I have your attention,
Moderator Evan Semerjian has just called tonight's meeting
Good evening. Tonight The Advocates examines one of the
most important civil rights questions to come before the Supreme Court in a
decade. Specifically the question is this: Should colleges and universities
give preferential admission to minority group applicants? Advocate Monroe
Freedman says, "Yes."
Because of the on-going impact of generations of oppression
and injustice we must take affirmative action to permit minority group
members to assume their rightful place in American society. With me this
evening are my witnesses Robert O'Neil, Vice President of the University of
Cincinnati and Slade Gorton, Attorney General of the State of
Advocate William Van Alstyne says, "No."
If you understand the proposal that is being made here,
then you will know that what Mr. Freedman proposes is to enshrine in our
society a very ugly idea that we have for so very long tried to rid from
that society—that after all is said and done, race is a proper way of
judging human beings. To argue that preferential racial quotas are socially
destructive, I have with me Professor Paul Kurtz, Professor of Philosophy at
the State University of New York at Buffalo, and President George Roche,
President of Lillsdale College in Michigan.
Thank you, gentlemen. Tonight's program originates from the
studios of WTTW in Chicago. I'd first like to introduce our two new
advocates. Monroe Freedman is Dean of the Law School at Hofstra University
on Long Island, and William Van Alstyne is a Professor of Constitutional Law
at Duke University in Durham, North Carolina. We'll be back to you gentlemen
for your cases in a moment, but first this word of background on tonight's
In the next few months the Supreme Court will hand down an
important decision about a case that has to do with a white applicant who
was denied admission to law school. The rejected applicant, Marco de Funis,
filed suit against the University because black and other minority students
less qualified than himself had been admitted. The trial court ordered that
de Funis be admitted on the grounds that his exclusion was
unconstitutionally discriminatory. The State Supreme Court, however,
reversed the decision and held that the University's preferential admission
policy for minorities was lawful. The circumstances of the case are
disputed. There wore other less qualified white applicants, most of them
veterans, who were also admitted. There is, however, no dispute that this
University, like many other colleges and graduate schools, _ has a policy of
special consideration for minority applicants. The reason for these policies
is to increase the scarce ranks of black and other minority college
graduates and professionals. In 1950 the Supreme Court held that the
exclusion of a black applicant from a State University law school solely
because of .his race was a violation of the Equal Protection clause of the
Constitution. Today the Court is faced with the exclusion of a white
student. Are the considerations different? Do the effects of past
discrimination justify a new kind of positive discrimination? These are the
difficult questions we'll look at tonight, and we begin by hearing the case
for preferential admissions for minorities. Mr. Freedman, the floor is
Thank you. I think that the phrase "positive
discrimination," which our moderator has just used, is an unfortunately
loaded one. I would like to rephrase the issue as I see it in terms of a
young man that I knew a few years back at law school. He was brought up in
the back woods of Mississippi. His name was Willy Lee Bailey. His college
record was not that good. His law school admission test score, his law board
score was rather low. On the basis of these standard predictors of quality,
he would not have been admitted. However, on the basis of his motivation, on
the basis of recommendations, and on the basis of his desire to return to
Mississippi to serve the black and poor people from whom he had come, he was
admitted to law school. Willy Lee Bailey had trouble in his first year, but
after that he did very well. In addition, he made a unique contribution to
the other members of his law school class by giving them an opportunity
through him to experience something that was completely foreign to them as
white middle class students in a typical law school. Today Willy Lee Bailey
is back home in Greenwood, Mississippi, representing the poor and black
people of that community, the only black lawyer in Greenwood and one of the
few black lawyers in the state. As I see it, the question for us here
tonight is whether we were wrong in giving Willy Lee Bailey a chance to go
to law school and to return as a member of the bar to Greenwood,
Mississippi. I call as my first witness Robert O’Neil.
Mr. O’Neil, welcome to The Advocates.
Mr. O’Neil is Vice President of the University of
Cincinnati. He is a former Professor of Law at the University of California
in Berkeley, and he is also an expert in constitutional law. Mr. O’Neil, for
the first question I would like to ask you is there anything new about
preferential admissions to higher education?
No, not really new in the sense that the admission process
for a good many years has taken into account a number of factors other than
strict, standardized test scores or grade point averages because admissions
officers from their experience realize that the decision is a much more
complex one than just going down a numerical list and taking people in rank
order. So we have had preferential policies based on family background, for
example, children of alumni, based on athletic ability, based on musical
skill and various other kinds of qualities for which colleges and
universities were seeking. What may be new is the use of race or ethnic
background as one of these factors, but it's not the process of varying the
standard performance criteria that's new. The only thing that is new is the
inclusion of race and ethnic background as one of these factors.
All right, tell us why, Mr. O’Neil, colleges and
universities have come to use racial considerations in their admissions
There are several factors which go back to the mid- and
late-1960’s. One clearly was a national consciousness that minority groups
were under-represented, drastically under-represented, both in college and
university enrollments and in the occupations and professions for which
higher education was a necessary prerequisite. A second factor was the
growing activism of minority groups themselves. A third factor undoubtedly
was the assassination of Martin Luther King, which focused national
consciousness on this problem. These, I think, would be the three things
that really made us conscious and by being conscious made us begin to take
race and ethnic group membership into account.
All right, let me ask you this, Professor O’Neil- Do you
find any legitimacy in considering a factor such as that a candidate for
school has worked full time to work his or her way through school, or the
fact that a candidate has overcome racial or ethnic barriers in achieving
the status of a candidate to a school?
Yes, these two factors are a bit different, but both of
them indicate some kind of capacity and determination to succeed against the
odds, and a student who has shown that by the time of making application to
a college or a graduate school has already demonstrated a kind of quality
that makes prediction of success a reasonable promise.
And could you tell us briefly what you believe the
consequences would be if we accepted the suggestion that we simply wait and
let time cure the problem that we're discussing.
Well, that's essentially what we have done through the
mid-60’s, and what we found was not only a continued under-representation of
minority groups, but actually a worsening of the situation because as the
demand for higher education, and particularly professional education in
fields like law and medicine, increased as a result of the increasing
population in this age group, the standards for admission became more and
more selective, and those who did not rank at the top on standard test
scores and grades were increasingly excluded, so that from, let's say, the
late forties to the late sixties, in many areas the representation of
minority groups actually declined.
Okay, Mr. O’Neil, Mr. Van Alstyne is eager to ask you some
questions, and here he comes.
Mr. O’Neil, we've boon given a certain impression here, I
think, that the proposition that is being argued is whether anything other
than certain tests scores can be used, but that's not my understanding of
the problem, and I need to ask you several questions about that. I gather in
the de Funis case itself the University of Washington Law; School did not
rest content with test scores or grade point averages. They too considered
letters of recommendation and were at liberty entirely to determine whether
the person had worked, had overcome adversity, or something else. Isn't that
true, Mr. O’Neil?
As I understand it, there were a number of factors that
particularly in the close cases that went into the final decision.
And so that when it comes down to it then, the issue here
is not whether those things can properly be considered, but after you've
done all of that examination and you've determined on the basis of that
totality of examination that some people arc more qualified according to
that determination than others, still because of the race of the other
group, they will be taken to the exclusion of those whom you determined to
be better qualified, is that not right?
Well, actually, as I understand the sequence, the question
of race or ethnic group membership came in fairly early, but I think the
question is, as you suggest, whether, given other things having been
considered and weighed, whether this factor, among others, may play a role
in the final decision.
Mr. O’Neil, do you know what ethnic group Marco de Funis
I understand he was Jewish.
A Sephardic Jew.
Do you happen to know what kind of representation
Sephardic Jews have at the University of Washington Law School?
I have never seen any figure. I suspect it would be small,
as it would be small in the total population.
Do you have any impression, for instance, as to how many
Irish Catholics may be present in the student body at the University of
Washington Law School, or indeed whether they ever have cared to try to find
I'm sure there are figures in the census, for example;
most institutions have a rough idea, but probably not a precise figure,
I see, so the University of Washington Law School, in
essence, has chosen race as a kind of single criterion against which to
resolve the doubt against persons of other races, though on close
examination they may by overcoming privation, they may by economic status,
they may by test scores and letters of recommendations, be as worthy human
beings, but they are to be set aside in a class of limited size in
preference of others distinguishable only in respect of their
Well, what they've chosen is those racial and ethnic
groups which were shown to have been systematically excluded in the past by
the application of these standard tests. The Asian group, for example, which
in some populations is considered a minority and in some places is given
preference, was not given prefer-once because they made a decision that
Asian students had not been excluded and were not under-represented in that
particular student body.
Well now, let me get you straight about that, Mr. O’Neil.
My recollection as native Californian is that Japanese-American citizens
have been singularly the victims of widespread racial discrimination on the
West coast for the better part of a century.
Yet the very fact that they as a cultural group have been
able to overcome the adversity of that discrimination moans that they're not
entitled to the equivalent treatment of others. Indeed, isn't it the case
that there's a higher proportion of black students in the University of
Washington Law School than there is in the state of Washington?
Well, I understand that at the time the case came up the
percentage was roughly equal. As to general population and the Law School
student body, that's an unusual situation sterling mainly from the very
small black population in the state of Washington. I don't know of another
law school offhand, at least in the metropolitan area, where the black
percentage in the law school would even approach the black percentage in the
metropolitan area or state-wide in the industrial states.
I gather from what you say that no matter how awkwardly it
seems to work, the idea of preferential admission by racial identification
is to help those who've been disadvantaged and who can be identified as a
group as having been- disadvantaged.
Well, that's one purpose. The other objective, and for me
the more important, is to enable substantially larger numbers of people from
those groups to enter these occupations and professions in which they're
under-represented, partly so that they may serve as role models for others
from these groups who will come along later. In other words, the benefit to
them as individuals is part of the package, but there's a much larger
societal interest which argues in the same direction.
Make this a brief question and answer.
I didn't mean to ask you about that; I'm just puzzled
inasmuch as 80% of the poor people in this country arc white and 52% of the
blacks are part of the middle class. But I don't understand your point. Do
you have this picture in your mind that the ideal society is one in which
you strip people into various categories and then you look at the population
to see whether or not you've got a correct profile of each statistical
group, because if you do, I don't understand how it can possibly work given
the ways in which we classify people.
The ideal society is one in which there is something
approaching equality of opportunity at all levels.
All right, thanks very much, thanks. That's all we have
time for on this. Let's go back to Mr. Freedman.
Mr. O’Neil, although our next witness, of course, is the
expert on the situation in Washington, as Mr. Van Alstyne well knows, he has
pressed you on certain facts relating to that case. Is it not a fact that
between 1902 and 1967 the representation of blacks at the University of
Washington was one-third of one percent, whereas the true proportion of
blacks in the state of Washington at that time was a full six times that
I understand that to be the case, but I also think that
the more important fact is that the number of black attorneys was far below
the black proportion of the population so that the coincidence—or whatever
the phenomenon be—of black representation in the student body is to me a
less significant fact than the drastic under-representation of blacks in the
Washington state bar at the time.
All right, back to you, Mr. Van Alstyne, for one very
Yes, my question, Mr. O’Neil, is among the thirty-seven
blacks, all of whom were themselves college graduates and who wore given
preference to Marco dc Funis, did the University ever attempt to make any
inquiry among them to determine whether some were not in fact disadvantaged
I think there was a presumption that by virtue of being
black, one is disadvantaged . . .
Well, in fact it was a categorical assumption, wasn't
Wait a minute.
That was the presumption, yes.
All right, Mr. O’Neil, thanks very much for being with us
tonight. Thank you. Mr. Freedman.
Thank you. As my next witness, I call Slade
Mr. Gorton, welcome to The Advocates.
Mr. Gorton is the Attorney General of the State of
Washington and very recently was arguing the case that Mr. Van Alstyne was
pressing the former witness on before the Supreme Court of the United
States. Mr. Gorton, it has been suggested that it would be unconstitutional
for a university or for a college to be color conscious in its policies
relating to admissions. What is your view on that?
My reading is that the Constitution of the United States
has almost always been color conscious. The Fourteenth Amendment itself
obviously was passed to end the effects of Negro slavery. The same Congress
in 1866 which passed the Fourteenth Amendment itself passed statutes which
were directed at giving benefits -to specific racial minorities—in this case
the blacks and the former slaves. Thirty years later the Supreme Court, in
approving a separate but equal doctrine, was also color conscious, and of
course at that point, I suppose, color blindness might have been a
considerable advantage. But ever since that time—ever since separate but
equal was reversed—the Supreme Court has consciously followed decisions
which required both decisions in connection with school policies and
employment policies to be color conscious. Moreover, the Supreme Court has
said that school authorities have a far broader scope of authority to
consider race in connection with ending the effects of racial discrimination
than do the courts themselves.
Are you suggesting, then, that race should be the
determining factor in admissions policies?
No, I'm not. Just as the authorities in most colleges and
universities have never considered solely grades or academic promise, so
they are not solely going to consider race now. In the past these decisions,
once the threshold of academic qualifications sufficient to finish school
had been determined, were based in part on geographical location, artistic
ability, for that matter, athletic talent among other things, and all that
this proposal seeks to do is to take one step beyond that in order to create
the experience of a pluralistic society within school and consider what is a
more important criteria than athletic ability or even geographic location,
and that is race, not just for the minority groups, not even mostly for the
minority groups, but for all of the students whose education will be
incomplete if they go through a white school into an exclusively white
Mr. Gorton, do you see this process of using race as a
factor in admissions as something that will go on indefinitely?
No, I don't. I think one of the greatest single advantages
of the system as it exists now is that it is likely to be self-liquidating.
As a greater percentage of the members of these minority groups finish
college or finish a good preparatory education, as their test scores go up,
as more of them apply to the schools, the need for preference, and for that
matter, the justification for the preference, will decline in the same
measure and hopefully will disappear.
Make this extremely brief.
Thank you. Are you suggesting that preferential treatment
go beyond the point of admission and the provision of opportunity?
No, I'm not, nor did it in the state of Washington. The
way in which our schools arc operated there is largely through a system of
examinations which are anonymous. Clearly the bar examination in the state
of Washington is anonymous. What has been clearly shown by the program, even
in the few years that it has existed, that by opening up the doors to
opportunity members of these groups can make it on their own from there
Okay, thank you. Let's go to Mr. Van Alstyne.
Mr. Gorton, you astound me in ore sense. I've taught
constitutional law for thirteen years, and I was unaware that the Court took
the view that the Constitution is color conscious. In fact, I was of the
impression, rather, that what the Court has said was a triumph for the view
taken in the dissent, to the original segregation case, and that is that
this Constitution of ours is colorblind and neither knows nor tolerates
classes among its citizens. And indeed, I thought that was the basis for the
dissent in the Supreme Court of your state by the Chief Jus Lice of your
Supreme Court who said, "The circle of inequality cannot be broken by
shifting the inequities from one man to his neighbor." Indeed, I would not
suppose that you would have argued the do Funis case, if you'd thought this
issue resolved a long time ago, but I simply put that to you as background
for a question. What puzzles me about your presentation is that what you
seem to be suggesting is that we take people who by every test, by private
interview, by recommendations, by work experience, by motivation tests and
everything else, who nonetheless by all of those factors still prove out
less prospective, less promising than other candidates and case them into
schools where their prospects of academic success are less. And I take it it
is true, is it not, that the attrition rate for students admitted under
these circumstances tends to be higher, does it not, than for the balance of
the student population?
I think, Mr. Van Alstyne, you've made one comment and
asked two questions, and I'll try to answer all of them. First, you've read
from two cases, but you've read from the dissents in both cases, not from
the majority opinions. Secondly, the experience at the University of
Washington has been one that the attrition rate isn't appreciably greater.
The particular class in which Mr. de Funis found himself had eighteen
members of minority groups when they started out on their first year. Now in
their third year fourteen are still there. That class had 132 members of the
white majority; it now has 117 of those left. We don't accept your
characterization that we simply made a definition that everyone was more
qualified and then let in a bunch of less qualified members of minority
groups at all. We say that in a sense this was an integral process, and that
it was aimed at valid educational and professional goals. We determined that
all of these people, including Mr. de Funis and the minority members, were
qualified students, but we didn't have room enough for all of them. We
wanted to give all of those people, white, black, Chicano and the rest, a
valid educational experience, mixing with one another, getting one another's
points of view exactly in the sense that the young man from Mississippi
offered that opportunity to people with Mr. Freedman. And we wanted to sec
to it that the Bar Association, the legal profession, in the state of
Washington offered opportunities to everyone and understood
Well, I think I understand your point as well as you've
been able to make it, which is splendidly, Mr. Gorton. But I still don't
understand, if indeed these students arc doing as well as the others, then
it seems to me the University of Washington Law School must necessarily have
its regular admissions criteria at the wrong level to begin with, that
you're not taking the appropriate group before you over cull them by some
kind of racial category. The larger point you make—and the larger point that
ought to be made here—is that you put a very high premium on
diversification. Can you help me understand—can you help all of us
understand—exactly how you go about choosing the degree of diversity that
you regard as more appropriate because I have difficulty in seeing why Marco
de Funis, a Sephardic Jew, is a lens appropriate representative to bring a
different kind of perspective to bear than those whom you have chosen to
favor, or do I see in what respect he's been more advantaged from what you
know about him?
I think that's quite a valid question, and I think that in
any situation of this sort one must draw very, very careful lines in
determining who is to receive this kind of special consideration. In our
case we required three things to take place at the same time before it was
granted: first, the group had to be one which had been subjected to
systematic discrimination in the past over an extended period of
Do you know that's true of the thirty-eight black
applicants you brought in?
Second . . . Certainly Blacks have clearly been subjected
to discrimination for a long period in our history. All blacks.
Please try to wind up your answer.
Secondly, the individual had to be qualified. We had to
think he was going to be able to make it through, and thirdly, ho had to be
well qualified in such a sense that if we used only test scores, or almost
exclusively test scores, we wouldn't have a representation from that group.
Mr. de Funis and the other minorities didn't fall into that
All right, let's go back to Mr. Freedman.
Mr. Moderator, I feel I should be cross-examining Mr. van
Alstyne who did most of the testifying.
Well, why don't you put a question to the
Could you explain to us briefly, Mr. Gorton, the way in
which the pool of qualified people is used and whether you ever go below a
qualified level in seeking minority group students.-
Well, we clearly do not. We do not regard the law school
admissions test, for example, as being invalid in any respect, and we looked
at the test scores, and we looked at the college grades of minority students
as well as majority students, and any member of the minority group who v/as
found unqualified, who v/as found not to be able in our estimation to
undertake successfully the legal education, was not further considered. It
was only in choosing among qualified persons that the preference came into
Okay, back to you, Mr. Van Alstyne, for one
Yes, I can't let you get away with the observation on
diversity without asking you, Mr. Gorton, whether you happen to know whether
the average income of the black families who were favored by your system was
less than or more than the average income of white students of various
cultural backgrounds displaced by your racial preference.
Mr. van Alstyne, we didn't know because we didn't
We felt that we wanted to solve the problems of racial
discrimination and so we used racial criteria. It was just as simple as that
. . .
I see. So that all blacks…
It was as important to us to have a black from a good
family background in this school contributing his experiences to the other
students as it was a poor one. We already have many students who come from
economically deprived backgrounds in the school. We didn't need a special
program for them.
All right, Mr. Gorton, I want to thank you
very much for
being with us tonight. We really appreciate it. -
When I was young, the question was sometimes asked: What
does the Hebrew writing mean on the shield of Princeton University? And the
answer was: It means we have a 3% Jewish quota. As a Jew, I am not
insensitive to the kind of issue that Mr. Van Alstyne has been raising, but
there is a difference between that kind of quota and what we're talking
about today. That was a bad faith exclusion. This is a good faith inclusion.
That had a purpose of segregating; we have a purpose of integrating. That
was a purpose to deny opportunity; our purpose is to provide opportunity.
That had a purpose to perpetuate injustice; the purpose that we have been
testifying to is that of eliminating injustice. There is, Mr. Van Alstyne, a
gulf of difference between them.
All right, thank you. Thank you, Mr. Freedman. Wait a
minute, Mr. Van Alstyne. For those of you in our audience who may have
joined us late, Mr. Freedman and his witnesses have just presented the case
in favor of colleges and universities giving preferential admission to
minority group applicants. And now for the case against, Mr. Van Alstyne,
the floor is yours.
As I listened to Mr. Freedman's closing remarks, I kept
asking myself whether those who were excluded from an equal opportunity for
admission solely because of their difference in race would feel inclined to
applaud what was just said. The question before us, to use Mr. Freedman's
formulation, is not, according to his introduction, whether Willy Lee Bailey
should have been admitted to law school but rather whether he should have
been admitted to the exclusion of someone else purely on the basis of race
only, and it appears from what Mr. Freedman told us that he did not do that.
He considered Willy Bailey on his merits as a human being and as an
individual, and this is exactly what we propose. But this is not what the
University of Washington Law School did when it accepted thirty-eight blacks
purely on racial grounds and rejected Marco de Funis because he was white,
and he was not treated like Willy Lee Bailey. What Mr. Freedman's proposal
in fact amounts to is to achieve the laudable goal of ending racism by
adopting a new policy of racism. For every black admitted to a university
because he is black, a white or Oriental or Jew shall be excluded simply
because he is not black. Racial quotas to include necessarily are racial
quotas that exclude. We shall demonstrate that such a system is both
unconstitutional and socially destructive. It is destructive to those given
favorable treatment on this basis because it conveys the degrading feeling
that they did not qualify according to their individual considerations. It
is destructive by degrading the quality of university standards by
substituting other—something other—than a determination of personal
qualification. And it is destructive for all of society because it
tragically reinforces a myth, the myth that race truly is a proper way for
judging human beings. I call as my first witness Mr. Paul Kurtz.
Mr. Kurtz, welcome to The Advocates.
Mr. Kurtz is a Professor of Philosophy at the State
University of New York at Buffalo and Editor of The Humanist. Mr. Kurtz, in
your feeling are preferential racial quotas consistent with your
understanding of the Constitution and Equal Protection?
No, they are not. I'm not a constitutional lawyer, but
I've always believed that the Constitution was color blind and that
discrimination or preference based upon race, national origin, ethnicity or
sex was net within the confines of the American system. I think there is an
important moral issue here. Now, this is apt to be an emotional question,
but we really have to examine the logic of the moral claim. For those of us
who are committed to democracy and to equality and are against
discrimination, I think there is a confusion when you talk about group
equality and group preference as distinct from the individual. In my view
the principle of equality should apply to individuals. Treat every
individual fairly as a human being. When you begin to bring in groups, such
as race or ethnicity or national origin, you go beyond that and you
discriminate against the individual, and that is a contradiction of the
principle of equality.
But, Mr. Kurtz, you've been here tonight. What about the
argument we've heard that preferential racial quotas that we're talking
about are different because they're benign — that is, they're trying to do
something for blacks and not against anyone?
I don't think any quotas are benign. It may be benign in
terms of the people you favor, but what about the people you do not? I think
quotas are basically malignant. If we examine the history of quotas, as Mr.
Freedman pointed out, we recognize that they did exclude. They excluded
Jews, they excluded Negroes, they excluded Catholics and women from
universities and colleges in this land. I should have thought that we
learned our lesson. It has only been twenty or thirty years that we've
abandoned these quotas, and now we're told to bring them back. But a quota
is a quota, and it involves reverse discrimination against those individuals
who through no blame of their own as individuals are not being fairly
treated. The poor Italian whose father lived in Sicily is not responsible
for the racism in the nineteenth century, and yet he's being made to bear
the burden of the guilt here. It seems to me he has his qualifications of
the Italian or the Pole or the Sephardic Jew has to be treated in its own
It occurs to me to want to ask you something else because
we have a very narrow subject here, having to do- only with admissions to
colleges, but in light of the principal that's being proposed I want to ask:
in your opinion can the principal of quotas on the basis they're being
offered here be limited to colleges and universities?
They can't be limited, and I think v/hat has happened is
that a new principal has been introduced, and that's the principal of
proportional representation, which I think Mr. O’Neil introduced—namely, you
play a numbers game. What are the percentages of a group in the population?
Then you say, "This group must be represented in every profession in
society." But now if you do this, then you begin to destroy society. I mean,
have we examined how many Poles are lawyers, how many Italians are lawyers,
how many Armenians are lawyers, "Czechs? No. You begin to play a numbers
game, you break society up into groups, and this seems to me to be
I think you may need to elaborate on that. Why isn't it a
good idea to have equal proportions of every manner in, which you can
classify people throughout all of society?
Well, if I listened to Mr. Gorton, he's not doing that.
He's only taking one group, or the favored group, into account. He's taking
into account blacks and Chicanos and Phillipines and Orientals in the West
Coast and American Indians, but what about the rest? America's made up of
ethnic groups. If we were to generalize on that principal of proportional
representation and group equality, we may very well destroy the fabric of
All right, Mr. Kurtz. Mr. Freedman wants to ask you some
questions. Here he comes.
Yes, thanks very much. Mr. Kurtz, in discussing the other
groups that you feel are being disfavored, haven't you ignored a substantial
part of American history? For example, within the twentieth century a state
of the United States, a court in a state of the United States, rendered a
decision in which a white man sued for defamation on the grounds that he had
been referred to mistakenly in a newspaper story as a "colored gentleman."
That plaintiff, that white man referred to as a colored gentleman, was
awarded very substantial damages because simply by being called a colored
gentleman he had been held up to hate, shame, ridicule, obloquy, and abuse.
Now, that is not true of any of the other groups that you're talking about,
It is true of many groups. I share with you your distaste
for racism, and I don't want to bring in another kind of racism in reverse,
but many other groups have suffered discrimination in society, not simply
the blacks, and I think we have to be sensitive to this, and we have to be
concerned with affirmative action in getting rid of discrimination, but the
means that you use seems to me to have more disastrous consequences than the
disease you want to cure.
Is there a single group that was brought to this country
in chains, that was enslaved, that was subjected over the generations to
federal and state laws that discriminated against them and that deprived
them of opportunity?
As I understand, the state of Washington in the de Funis
case the Chicanos are also being given preferential treatment. Ifs not
simply the blacks, but it's the Spanish-Americans as well, the
Philippino-Americans, the American Indians, so there are certain favored
groups at one time that have preference. Now, I think this is unfair. Let's
treat an individual as an individual. Granted, there has been racism. Let's
overcome it, but let's not institute a new method.
Mr. Kurtz, take a group of runners at the starting block,
the gun goes off, they all start to run, and one is loft behind because he's
got a ball and chain on his leg. And you come along after the rest are a
half hour ahead, and you knock off the ball and chain, and you say, "Okay,
you're equal. You've got the same opportunity. Go." No affirmative action,
but "You're equal."
I think we have to take the ball and chain off of every
individual. I am concerned with standards, and I am concerned with
qualifications, and the main thing is who wins the race. Every individual
needs a chance. Now, you are not giving a chance to those individuals who
are now excluded by so-called benign quotas.
All right. It was necessary for Mr. Gorton to educate Mr.
Van Alstyne with regard to some constitutional case citations. You
disarmingly said that you were not a constitutional authority and then went
on to profess to be one. Are you familiar with this quotation from a recent
decision by the Chief Justice of the United States? "School authorities may
well conclude that in order to prepare students to live in a pluralistic
society each school should have a prescribed ratio of Negro to white
students, reflecting the proportion for the district as a whole. To do this
as an educational policy is within the broad discretionary powers of school
authorities." Is that not directly contrary to what you profess to state as
I think the illustration of graduate schools or colleges
is something else because all Americans are entitled to education in the
grammar schools and the high schools, and integration pushes in that
direction, but now you want to replace someone with someone else. You want
to by-pass the poor white, the disadvantaged white, who may have higher
qualifications for the Negro or the black, and it seems to me that the
analogy does not follow.
Mr. Kurtz, does that support or does that refute your
proposition that the Constitution is colorblind and that race may not
permissibly be used?
It may not be used as a basis of discrimination, and it
seems to me that where you set up preferential group quotas, you really are
discriminating against others.
And yet that is precisely what the Chief Justice approved
in that 1971 decision, is it not?
I think the Supreme Court of the United States is now
hearing the case and will have to decide in what sense you interpret
They are not hearing that case. It was decided in
But there is no analogy on that point.
But you have suggested . . .
But there is no analogy . . .
. . . that there is a difference . . .
Now, wait a minute. Let's have a question and answer
here. Have you finished your answer, Mr. Kurtz?
You have suggested that there is no difference between
invidious . . .
I'm sorry, Mr. Freedman, we don't have time for that
question. Let's go back to Mr. Van Alstyne. Mr. Van Alstyne, you can remain
seated for this.
I got up because Mr. Freedman, having explained that my
witness is not a constitutional expert, then put upon him a total false
analogy to which the witness responded exactly as did the Chief Justice of
the United States when that quotation was read to him one week ago.
You better put your question, Mr. Van Alstyne.
Yes, I will. Professor Kurtz, isn't it the case when that
quotation was read to the Chief Justice that what he said was that that was
a different situation because it did not involve the exclusion of any person
because of their race and all went to school, and schools of exactly equal
I think that if we were to interpret the Constitution as
Mr. Freedman. suggests, then you really have some people more equal than
others, and this would be an abandonment of the whole principal of equality
which applies to individuals.
Okay, Mr. Freedman, you have one
Mr. Kurtz, if those schools that Mr. Van Alstyne was
talking about were really of equal quality, why then were the white parents
going to court to fight having to have their children sent to
I don't disagree with integration. I believe in an
integrated society. I think the worst way to achieve it is the way you
suggest. I think we need equal opportunity for individuals.
Okay, Mr. Kurtz, I want to thank you very much
for being with us tonight. Mr. Van Alstyne. Mr. Van Alstyne, could we have
your next witness, please.
Yes, my next witness is Mr. George Roche, the President
of Hillsdale College in Michigan.
Mr. Roche, welcome to The Advocates.
Mr. Roche, I'm very pleased to have you here, most
especially because as the President of a college, I trust you may be able to
have some firsthand experience in the response of administrators and
educators to preferential racial admissions standards. So I need first to
ask of you really what has been the character of that response, and what if
any problems are they experiencing?
The quota question in general has disturbed many, many
faculty and administration on many campuses on the grounds that it's very
difficult to sort out this minority question. The business of defining a
minority becomes complicated when you recognize the fact that we're all
members of a variety of minorities, and when you begin to discuss who will
be granted special privilege, you run into some peculiar
Can you illustrate some of the problems?
For example, if we're operating on an economic basis,
then should we grant preferential admissions to well-to-do black families?
If we're operating on a racial basis, should we deny preferential admissions
to Appalachian whites who are certainly a disadvantaged group? And if we're
operating on an under-representation in the academic community, what of the
Poles or the Greeks or the Irish? What are we to do with all these other
minorities who are also very much under-represented in the present-day
Suppose there were some magical means by which you could
overcome that problem, so that you had an idea of what the problem was to
help you identify the minorities. Suppose you could put it through a
computer and come out with a suitable minority profile; would you then not
have any problems with this?
There would still be very serious problems for a variety
of reasons, but probably the largest single problem would be the question
that centers on the fact that quotas tend to bring with them lower
standards. Either individuals are qualified to attend school or they are
not. If they are qualified, surely they need no quota to make this possible.
If they're not qualified and the only way they can Toe kept on campus and
retained in the institution is if the institution lowers its standards
sufficiently to make that possible.
Mr. Roche, in a sense you and I portray a rather gloomy
picture, and I want to ask you a question because it was suggested
spontaneously from the audience. If racial quotas are not the answer to
disadvantaged people, then do you have anything better to put in its
Yes, I believe so. One thing that our society has the
clearest sort of obligation to work on is remedial programs that properly
correct the qualification of college-age young people of whatever background
to make sure they're ready for that college experience. That's fine. We
should work on it. In the meantime, however, ...
That would be race-free, I take it.
It would be, indeed, and meanwhile, I don't think we
should make of our higher educational campuses a remedial function which in
fact takes the whole core out of higher education as it exists
Well, you've adverted to the fact that in your experience
as administrator, this response tends to affect the overall standards of the
institution; does it have any effect on the individuals?
It has some very severe effects on the individual.
Obviously, the qualified individual who is not the member of the proper
minority group and who is therefore not allowed to attend is disadvantaged
by the process. The unqualified individual who is placed in an atmosphere
that he simply cannot perform in is also disadvantaged, but hurt most of
all, I think, is the leadership community of the minorities themselves, the
bright, young minority people who are qualified to attend college.
Well now, how can they be hurt by this?
Make this very brief.
Most dramatically they can be hurt because . . . well,
for example, Professor Thomas Sole, a distinguished economist and a black
himself, has placed great emphasis on the fact that the primary thrust of a
quota—and if I may, I'll quote him—means that "the black just doesn't have
it and must be given what he cannot earn." Now, if in fact that's the case,
we are in the quota system injecting a terrific dose of patronage that has
very adverse on tomorrow's minority leaders.
Thank you, Mr. Van Alstyne. Mr. Freedman, your
(I'm going to garrote myself with this thing.) Mr. Roche,
you have referred most recently to the degrading effect or impact on the
minority group of any kind of special treatment. For a long time there was a
so-called Jewish seat on the Supreme Court. In your view was Justice
Drandeis, Justice Cardozo, Justice Frankfurter and others degraded by the
fact that they held the Jewish seat, or am I elevated somehow because today
there isn't a single Jew among the nine members of the Supreme
As to your relative degree of elevation, I can't speak,
but as to the idea of Jewish quotas, I think that's a magnificent instance
of exactly the point we're trying to make. We all know that about 3% of the
national population is Jewish, and yet today the academic community reflects
a far larger proportion of Jewish members than that 3%. If, in fact, the
literal idea behind present-day affirmative action and preferential
admissions were to have its way, I assume we'd have to limit the number of
Jews in those seats to their proper 3% of the population, and if so, that
would be a tragedy.
Is it your understanding that a single witness here, or
I, has suggested anything like that? Limiting the Jewish representation in
colleges and universities to 3%.
Mr. Freedman, as I understand a quota, if it indeed is a
numerical quota, if we’re talking about a percentage of the population for
blacks or whoever, then I think a quota in one case implies a quota in other
cases, assuming that there's only a fixed number of positions
Then I think you've missed the whole point that we've
been making. You've expressed your concern with the quality at Hillsdale
College. Let me quote to you Professor Archibald Cox speaking on behalf of
Harvard University to the same subject: "The belief at Harvard has been," he
says, "that if scholarly excellence were the sole or even predominant
criterion, Harvard College would lose a great deal of its vitality and
intellectual excellence, and that the quality of the educational experience
offered to all students would suffer." Professor Cox said that in his brief
to the Supreme Court in the de Funis case, opposing Mr. de Funis.
May I comment on that?
Yes, I wish you would.
As a matter of fact, I think I agree heartily. I can draw
on the basis of our experience of our little college of a thousand students.
There, one thing that we insist upon, along with all the standard
measurements of ability and background and so on, is a personal interview.
We want the youngster firsthand on the campus to see what we're doing and
how we're doing it, and we also want the opportunity to see him because
we're looking for promise, we're looking for character, we're looking for
other things besides pure intellect. However, we're not adding race as one
of those quotas on the basis of the fact that we have blacks and whites, and
we think that we do best when we treat them as individuals rather than as
members of a group.
What proportion of blacks do you have at
It's difficult for me to say because there is nothing in
our admissions procedure, nothing in our standard of measurement, nothing in
anything on the Hillsdale campus which measures anyone there in terms
In short—but in a different sense—you don't care about
race, do you?
No, I care about people.
What about the kids? If you care about people—if you do
indeed care about people—what about the kids who are going to be
disadvantaged in the meantime while you are waiting for time alone to change
things? Considering that one year is 5% of a generation, what about those
people who arc waiting around while you are unwilling to take an affirmative
I think we take affirmative action simply by treating
people as people. There's no closed door in terms of the black or any other
group on the Hillsdale campus, so the affirmative action is very much in
effect, and a very effective kind of affirmative action of judging people as
individuals on the basis of their ability.
As a result of such a policy, apparently, in a population
about 13% black, we have only about 2 to 3% blacks in higher education. How
do you account for that?
Well, one reason might be, of course, as you say, that in
past times, for whatever reason, discrimination has existed, but I remind
you of something: when we're being so critical of the present-day academic
community, one very helpful way to look at our present structure is to
realize that there has been no single area of society, say in the past
twenty years, more aggressively concerned with providing opportunity to
qualified blacks or qualified minority members. The progress in the academic
community toward true integration, toward treating people as individuals,
has been more rapid than in any other sector of society.
All right, let's go back to Mr. van Alstyne for
First, since opinions are being ventured, it seems to me,
President Roche, that you understood the quota system on the Supreme Court
extremely well. We've confronted again and again this evening the problem of
coping . . .
Are you making a commentary, or are you asking
the witness a question?
No, I'm asking a question. We keep coming back to the
problem as to how to give minority groups a better opportunity to qualify on
individual terms with others, so I want to put the same question to you as I
did to Paul, and that is: Is there not a better way of doing it other than
preferential admission to the exclusion of other persons based on race
The whole idea of preferential admissions strikes at the
heart of the individual dignity that presumably we're trying to engender in
society, and the reverse discrimination that accompanies this, of course, is
most unfair, as I suggested before, to that qualified black leader.
All right, Mr. Freedman, back to you for one
Mr. Roche, what if you were choosing . . . there were
only one seat in a medical school and you wore choosing between two people
'roughly equal in their qualifications, but one of them intended to be an
orthopedic surgeon in a metropolitan area and the other had promised to go
to a rural area where there were no doctors available for people. Would you
take that into account?
All right, thank you very much. Mr. Roche, I want to
thank you very much for being with us tonight. Thank you.
We entered this evening's discussion with a story about
one young man, and I want to close by telling you about a young instructor
at a public college here in Chicago. Two years ago ho joined the faculty and
he taught so very well that his department, including all of his black
colleagues, three times unanimously recommended his renewal on the basis of
his work, on the basis of what he had done. In the fall of this year ho was
discharged by the college. After considerable effort to learn why, he was
advised that in spite of the recommendations and without questioning his
work, the administration believed it better to displace him with someone
else because the other person would be black. I asked him how he felt about
this, and he told me only that he would have felt better had he been judged
simply as a person according to what he had done. Unavoidably, under Mr.
Freedman's policy, people would no longer be judged as individuals alone,
and we can resign ourselves to more of this prospect.
Okay, thank you, gentlemen. That completes the cases. Now
it's time for each of our advocates to present their closing arguments. Mr.
Van Alstyne, could we have yours, please.
In summary, I want once more to compare Willy Lee Bailey
and finally the young white Chicago instructor. When the decision in cither
of those cases is made to depend-upon whether or not either one happens to
be white or black, neither can be judged for what he is or for what he has
done. Now, my own belief is that each of us, white and black, feels the same
way. We ask to be judged for what we are and neither favored nor judged
badly because we are white or black, Jew or Gentile, Irish or Norwegian,
Pole or native American Indian. When all of the benign intentions have been
marshaled, preferential treatment of some persons because of their race
always imposes exclusionary quotas on others and breaks faith with this
belief. I ask you to vote against the proposition which has been tendered
here, so that each of us—that is, all of us—can be judged for what we are
and what we have done.
Thank you. Mr. Freedman, could we have your closing
Thank you. I'd like to sum up in four points. First, we
have not suggested either exclusionary quotas, nor have we suggested that
unqualified people be accepted. Rather, what we have urged is that
preferential treatment be given within the pool of qualified people. Second,
there is justification for remedying the present, on-going impact of
generations of oppression. Third, there is a legitimate academic interest in
enriching the student body with people of diverse background. Fourth, there
is a social value in permitting minority group members to take a responsible
place in business, in industry, and in the professions, and thereby to have
a stake in a stable and safe America. Marco do Funis in fact had his choice
of three other law schools than the University of Washington. He applied to
those, he was accepted at those. Willy Lee Bailey had one chance to become a
member of the bar and to serve his people. I urge you to vote yes, that we
did do the right thing in admitting Willy Leo Bailey and giving him a chance
to get back to Greenwood, Mississippi. Thank you.
Thank you, gentlemen. We now turn to you in our audience
and ask what you think about the question debated tonight. Should colleges
and universities give preferential admission to minority group applicants?
Send us your "yes" or "no" vote on a letter or postcard to The Advocates,
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And now, with thanks to our advocates and their very able
and distinguished witnesses, we conclude tonight's debate.
The Advocates as a program takes no position on the
issues debated tonight. Our job is to help you understand both sides more