guage instruction to Chinese American and Hispanic American children who are not fluent in English, a failure that denies them the opportunity to participate meaningfully in the educational process in violation of the Civil Rights Act of 1964.59

In sum, whether or not university officials choose to articulate it, the fundamental justification for affirmative action admissions programs in professional schools is identical to that which has led courts to uphold affirmative action, including numericallybased remedies, in employment.60 Such programs are designed to provide redress, however belated, for past practices of racial exclusion of the professional schools themselves. Equally as important, the programs are intended to provide opportunities that were denied to many applicants earlier in their lives and that may be foreclosed forever if affirmative action is not permitted to intervene.1

In their impact on nonminorities, the programs of professional schools are similar to the affirmative redress that has been provided in employment cases involving new hiring, in that the effect is not on benefits already accrued by nonminorities but upon their expectations. Although the disappointment of

See Lau v. Nichols, 414 U.S. 563 (1974) involving Chinese-speaking children in San Francisco whose families had recently immigrated to the United States and sustaining a finding of a violation of Title VI of the 1964 act. In addition, a substantial number of young people in California were born in Southern States and attended public schools at a time when the racially dual systems had not been dismantled.

The legal issues in the two sets of cases, while not identical, are closely parallel. It is true that the results in employment cases are undergirded in part by the approval that Congress has given in Title VII and elsewhere to the concept of affirmative action and that Congress has authority under the Constitution to expand definitions of the right to equal treatment. See, e.g.. South Carolina v. Katzenbach, 383 U.S. 301 (1966). But it is equally true that the Supreme Court has given broad scope to the States in taking voluntary action to promote equality, even when the action is race conscious and is not explicitly designed to remedy a constitutional wrong. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), where the Court said that State officials may choose to balance racially public schools even where such schools have not been deliberately segregated. And it would be ironic in the extreme if the deference accorded to States during the many years when they countenanced the denial of rights of racial minorities were to be withdrawn now that some States are seeking to redress their past failures.

"It is true, as in employment, that some members of the minority groups benefited by the program may not have suffered discrimination. But as the Justice Department has noted, it would be an extraordinarily difficult task to require professional schools to substitute for their present programs a case-by-case examination of the impact of discrimination on each minority applicant. Of course, some minority applicants now gain entry to professional schools without the assistance of affirmative admissions programs.

expectations ought not to be discounted, it may weigh less heavily than an actual loss of benefits and the reasonableness of the expectations must be examined. It is said that race-conscious admissions programs may have a particularly detrimental effect on the prospects for admission of members of other ethnic groups who have had to overcome adverse socioeconomic circumstances to qualify for professional careers.62 But professional schools have purported for several years to take into account in the admissions process the potential shown by those who have attained academic success in the face of conditions of poverty or other difficult circumstances. To the extent that they have failed to do so adequately, the remedy lies not in eliminating programs to redress governmentally-fostered discrimination, but in increased sensitivity (and financial aid) to applicants who have overcome other forms of adversity.

Nor is there evidence that the reasonable expectations of white applicants have been disappointed in other ways. Professional schools have never held out the promise that admission would be extended automatically to those with the highest grades and test scores in disregard of all other factors. Moreover, during the period when affirmative action admissions programs have been in operation, governments have expanded the number of places in professional schools dramatically. The great bulk of these new opportunities has gone to white applicants. The practical effect of affirmative action admissions programs has been to assure that minority applicants, long foreclosed by racial discrimination from all but token participation, would receive a share of these new opportunities.

The distinction drawn in most programs is between groups that historically were explicitly held by government to be second-class citizens and that have continued to suffer discrimination at the hands of government (blacks, Hispanic Americans, Asian Americans, and American Indians) and other groups (e.g., Americans of Eastern European descent) that have suffered other forms of discrimination. A brief summary of officially imposed racism against Indians, Hispanic Americans, and Asian Americans is contained in Derrick A. Bell, Race, Racism and American Law (Boston: Little, Brown, 1973), pp. 59-82.

While the enrollment of black students in first-year medical classes increased 180 percent from 1968 to 1976, the actual number of new students is quite small, since blacks were only 2.7 percent of first-year students in 1968. White enrollment during this period increased 49 percent, representing a much greater number of students. See New York Times, Sept. 12, 1977, p. 32.

Part III. Conclusion

The aspiration of the American people is for a "colorblind" society, one that "neither knows nor tolerates classes among citizens." But color consciousness is unavoidable while the effects persist of decades of governmentally-imposed racial wrongs. A society that, in the name of the ideal, foreclosed racially-conscious remedies would not be truly colorblind but morally blind.

The concept of affirmative action has arisen from this inescapable conclusion. The justification for affirmative action to secure equal access to the job market lies in the need to overcome the effects of past discrimination by the employers, unions, colleges, and universities who are asked to undertake such action. It rests also in the practical need to assure that young people whose lives have been marred by discrimination in public education and other institutions are not forever barred from the opportunity to realize their potential and to become useful and productive citizens. The test of affirmative action programs is whether they are well calculated to achieve these objectives and whether or not they do so in a way that deals fairly with the rights and interests of all citizens. While care must be taken to safeguard against abuses, we believe that affirmative action as applied in the variety of contexts examined in this statement, including those where numericallybased remedies have been employed, meets this fundamental standard.

Affirmative action programs have been in effect in most instances for less than a decade, an eyeblink in history when compared with the centuries of oppression that preceded them. The gains secured thus far have been modest and fragile. Yet it is now contended that the civil rights laws of the 1960s and the gains that flowed to some individuals render affirmative action of the kind now undertaken unjustified as "special favoritism." In this challenge there are echoes of a Supreme Court decision almost a century old:

When man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some state in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws.65 The Supreme Court's decision in 1883 that that "state of progress" had been reached heralded the

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting).

"Civil Rights Cases, 109 U.S. 3, 25 (1883).

end of efforts to deal with the consequences of slavery and helped usher in the era of enforced segregation and discrimination that has persisted throughout most of this century.

A new decision implying that in 1977 this nation has reached a state of progress sufficient to justify the abandonment of any significant component of affirmative action programs would have similarly disastrous consequences. Such a decision could only be reached by ignoring the crushing burden of unemployment, poverty, and discrimination facing black people and others whose skins are dark. The abandonment of affirmative action programs, of which numerical goals are an integral part, would shut out many thousands of minority students and minority and women workers from opportunities that have only recently become available to them.66

The short history of affirmative action programs has shown such programs to be promising instruments in obtaining equality of opportunity. Many thousands of people have been afforded opportunities to develop their talents fully-opportunities that would not have been available without affirmative action. The emerging cadre of able minority and women lawyers, doctors, construction workers, and office managers is testimony to the fact that when opportunities are provided they will be used to the fullest.

While the effort often poses hard choices, courts and public agencies have shown themselves to be sensitive to the need to protect the legitimate interests and expectations of white workers and students and the interests of employers and universities in preserving systems based on merit. While all problems have not been resolved, the means are at hand to create employment and education systems that are fair to all people.

It would be a tragedy if this nation repeated the error that was made a century ago. If we do not lose our nerve and commitment and if we call upon the reservoir of good will that exists in this nation, affirmative action programs will help us to reach the day when our society is truly colorblind and nonsexist because all people will have an equal opportunity to develop their full potential and to share in the effort and the rewards that such development brings.

"As to minorities in law school admissions, see Law School Admission Research Applications and Admission to ABA Accerited Law Schools: An Analysis of National Data for the Class Entering in the Fall of 1976 (Franklin R. Evans, Educational Testing Service, for the Law School Admission Council 1977), pp. 44 and 102, table F4.