Equal Versus Compensatory Opportunity

THE OPEN MIND
Host: Richard D. Heffner
Guest: Morris Abram
Title: “Equal Versus Compensatory Opportunity”
VTR: 8/16/83

I’m Richard Heffner, your host on The Open Mind. As we record this program, the question of whether or not Ronald Reagan’s three spring 1983 nominees will actually take their seats on the United States Commission on Civil Rights is still not decided. But no matter, for there are way too many smaller as well as larger concerns involved in the president’s nominations and others’ reactions to them for us to examine them productively here. What may well make sense, however, is to look at the larger question of civil rights in America today with one of the president’s nominees. Morris Abram is one of America’s most distinguished attorneys. Former President of Brandeis University he was a bold, brave, and innovative spokesman for civil rights in his native South long before the movement for human equality became quite so fashionable.

Thank you for joining me today.

ABRAM: Glad to be here.

HEFFNER: You know, as we record this program, I look back at the extraordinary testimony that you gave in terms of your nomination to the Civil Rights Commission to an Editorial Notebook note in The New York Times by Jack Rosenthal, and your reply to it about the nomination. About, more importantly, the whole question of affirmative action. And I did a program not so long ago in which I asked my guest if he was a First Amendment voluptuary…

ABRAM: (Laughter)

HEFFNER: …as one of his great law professors had been referred to. And as I read your testimony, and as I read your letter to The New York Times late in July, I had the feeling that what you find yourself devoted to and dedicated to has to do with a constitutional principle that you want to maintain no matter what. Is that fair?

ABRAM: That’s correct. And that constitutional principle is very easily stated: Equal opportunity for all in American society, with guaranteed results for none. I am a total, total devotee of the Fourteenth Amendment to the Constitution, whose ringing language says, “No state shall deprive any person within its jurisdiction of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” And like Hugo Black before me, I read those words literally and absolutely. And I devoted my youth to fighting for those principles in segregated Georgia. And I’m not willing to abandon the neutral principles of constitutional law simply because that’s become fashionable with some.

HEFFNER: You say, “The neutral principles.” And I know you took objection to that Times editorial note that characterized it as kind of bloodless and uncharacteristically ungenerous of you. Is it fair to say that there is something to that question of bloodless chili?

ABRAM: No, I think not. And let me tell you why. This country is full of religious minorities. Unlike Northern Ireland, unlike Cyprus, unlike the Middle East, we have been able to live together in peace. Why? Because the state has been absolutely neutral as between you the Baptist, you the Episcopalian, you the Jehovah Witness, you the Jew, you the Catholic. And that chili neutrality, if you want to apply that word, has made it possible for us to live together in peace. Now we come to the question of education and jobs. And if we’re going to be un-neutral as to those benefits of society, we are going to have one bloody mess, because this country is a collection of aggrieved minorities. I just answered a question a few moments ago from somebody who wrote and asked, “What do you say about the giving of certain preferences to the Chinese and Japanese?” I wrote him back. I said, “Why sure, they’ve been discriminated against. The Japanese were placed in concentration camps on the grounds of their color in World War II. The Chinese and the Japanese were excluded from American immigration. There were laws all over the books against Orientals in this country. They have great grievances.” Now how much of a preference are you going to give them, especially when the Japanese today, despite this terrible history, are now perhaps the biggest earners in American society as families? Give the American system of equal opportunity time, give the government neutrality as a basic principle on which to operate, and we’ll get ahead in this country.

HEFFNER: Mr. Abram, you say, “Give that principle of neutrality time.” I wonder if I would accept that, I can accept it.

ABRAM: Yeah.

HEFFNER: I listen to it.

ABRAM: Yeah.

HEFFNER: It sounds perfectly fair. But I wonder if I could accept it if my skin were black.

ABRAM: All right. Now, there is no question. No one has to persuade me of the sad history of the Black race on this continent. It was one of the earliest immigrations, after all. They began to come here in 1620. And yet they are the newest immigration too, if by “immigrants” you mean people who have just now gotten a foothold in society. But they got their foothold, Dick, really, in this society only in 1957, ’64, and ’65 when they finally got the right to vote without limitation. And that’s not very long. Many of us really fought for those rights because it was a terrible scar and stain on America that they didn’t have them. What they were asking, and what their leaders, such as Thurgood Marshall, were demanding rightfully in the Supreme Court, was to be treated without reference to their color. They wanted a colorblind interpretation of the Constitution. We now have it. We have it fully enforced in this country as far as the government is concerned. Now, it’s true that progress has been spotty. It is true – I know this – that Black income, family income, measured as a proportion of White family income is stuck at something like 59 to 60 percent of White family income. That’s the overall average. Within these averages, Black women who have been to college earn more than White women who have been to college. They are moving. Black families in which the father and mother are both working, the gap is closing. And you say, “Why is it they still stay at that 60 percent needle point on the average scale?” It’s because there are vast numbers of people in the Black community who are falling further and further into poverty because they are in the ghetto, single-family, female headed households in which poverty lurks. Now, so-called special treatment, so as to get a kid on the Harvard Law Review, which is one of the impulses today, whether you’re qualified or not, or to get a kid graduated from college whether he’s qualified or not, under some kind of preferential program, is not going to help these kids who fall out of school, who live in a drug culture on the street, who have very little home life and very little supervision. None of these programs that are so vaunted today by the leaders of the Civil Rights Movement really help these people who are in the pit. My heart bleeds for them, and your heart should bleed for them, because the fate of this nation is at stake as an honorable nation and as a free nation.

HEFFNER: But you know, we’re talking here about counter-posed ideas and ideals, both of which we probably would both embrace, both of which I suspect you embrace, just as Jack Rosenthal, who wrote this piece in The New York Times, embraces. But I would like to examine with you the question of what the basis was for that original neutrality in our Constitution. Wasn’t it then a means to a better society? Wasn’t it then appropriate to our situation 200 years ago, and might not a different approach to the relations between individuals and the individual and the state be more appropriate today?

ABRAM: All right. Now, if you’re going to suggest that because of some agenda, one is going to, without a constitutional amendment, change the Constitution so that preference rather than neutrality is accorded certain citizens, I’d like to know who’s going to decide who those citizens to get preference shall be. Preference by law, mind you. How long are they going to get the preference? How much preference? What kind of bloodlines must they have to be entitled to the preference? If you’re going to base it, as some would, on language – there’s a preference in some legislation for persons with a Spanish surname – does that go to the rich Cuban who is now, one of them, is the president of a great company in this country, an immigrant from Cuba? Or does it go to the Castillian Spaniard who has come to this country and done extremely well? Once we begin to divide these things up on the basis of race, believe me, I fear we are back into the tests of Nuremberg.

HEFFNER: Well, I note in your letter and in your testimony, and you say, you raise the question, “Is this the formula”, the matter of preference, “Is this the formula for a more productive and fair America, or is it the way to private injustice, communal anger, conflict, and tragedy?” Obviously you feel the latter.

ABRAM: I do feel it very keenly. And it bothers me.

HEFFNER: But it bothers you in terms of the questions that you have just raised: Who will make these selections? How will we make these selections?

ABRAM: Well, I don’t think they should be made in any event. Because, let me tell you why. You are entitled to ask me, “Well then, what do you do about people in need?” And I’ve already told you that I think there are literally millions of people in need. And a great, great many of them, proportionately m ore Blacks are in need than White, of course. So you ask me, you’re entitled to say, “What are you going to do about it? You talk about it, but what are you going to do about it?”

HEFFNER: I’ll ask it.

ABRAM: Ah! I’ll tell you what. Need is addressed as need. And every child who needs to be in Headstart, regardless of color, should be in Headstart. And there should be more such programs. And every child who needs to be in Upward Bound should be in Upward Bound, regardless of race, color, creed, or language or surname. And every child who needs better housing, that housing should be available with regard to need. I just finished service as a chairman of a presidential commission for the study of ethical problems in medicine. We just reported on the principle of the ethical question of access to medical care in this country. And we didn’t say that every person who is Black shall have twice as much medical care as Whites because Blacks have been denied it longer and need it perhaps as a group more. What did we say? We said the right thing ethically, and the right thing for the country, and the right thing constitutionally. We said, “The society has a responsibility to furnish every person within it an adequate level of health care without excessive burden to any.” Now, that’s a neutral principle. But if it were applied, all of those who need an adequate level would have it, regardless of whether they be poor Whites in Appalachia or poor Spaniards in the barrio, or poor Blacks in the ghetto.

HEFFNER: Yes, but I must admit that when Alexander Kapin was here on The Open Mind discussing that report, the Executive Director of your commission…

ABRAM: Yes, and a wonderful human being.

HEFFNER: …this question of “without undue burden upon any: came up. And that’s where the ethical principles didn’t seem to dissolve, but that’s where they became fuzzier and fuzzier, as in the question of: How do we deal with, how do we help, out of our hearts, the people who are less fortunate than we are ourselves?

ABRAM: We help them to the extent they need and can benefit from the help, and to the extent that the help is given to all persons similarly situated, on an equal basis.

HEFFNER: Would that mean then, Mr. Abram, that you would be saying that quotas and preferential treatment, those are words that are just anathema to us?

ABRAM: They are un-American, in my judgment.

HEFFNER: they are un-American.

ABRAM: And unconstitutional.

HEFFNER: Except perhaps when we are referring to economic deprivation?

ABRAM: Even referring to economic deprivation.

HEFFNER: Well, but then let’s take what you’ve just said. Those who…

ABRAM: All right. Now wait a minute.

HEFFNER: Yeah?

ABRAM: By “quota”, I mean when the help is based on race, color, creed or sex.

HEFFNER: What about income?

ABRAM: Well, the income is quite a different thing.

HEFFNER: Right.

ABRAM: Because, because the classification is not one which the courts have historically in this country, have felt to be hateful, odious, and invidious and divisive. Look, the income tax falls differentially upon people based upon their wealth. And that’s perfectly constitutional. And that does not offend me in any respect whatever. It may be economically unsound, but as a matter of constitutional or ethical principal it doesn’t. But if you said to me that Blacks or Spanish shall pay half the income tax that a White person pays, if the Black earns $20,000 a year, as a method of compensation because his grandfather didn’t earn it, I would say that’s odious.

HEFFNER: Does that mean then that you would support busing when it is not based on color but is based on income?

ABRAM: Oh, busing? That’s a different question. Let me answer it. I want to answer every question.

HEFFNER: It’s not an unfair one.

ABRAM: No, no. Not unfair at all. I would support busing if it were neutral as to race, and if it were educationally sound.

HEFFNER: Right.

ABRAM: And I would support it in any event, as a lawyer, to the extent that the courts order it. But let me tell you this: I come originally, as you know, Dick, from Atlanta. Atlanta was a segregated school system. I fought it then, and I will always fight segregation. I think it’s hideous to take a Black child who would go to a, say, all-White school or a predominantly White school, and bus that child past that school to which he or she would ordinarily go because of its color. And I understood Brown versus Topeka, the great school desegregation case, as saying you shall never, on the grounds of race, deny a person access to the school to which it would ordinarily go. Now…

HEFFNER: All right. Go ahead. Then I’ll come back to that.

ABRAM: Now, as to Atlanta, what happened was that for 14 years, the NAACP Legal Education Defense Fund battered that school system with a group of suits to try to socially engineer and balance that school system. Now, to the extent that the courts ordered it, I support it. But the local NAACP chapter in that town bitterly opposed it, because they were re-segregating that school system. And finally they stopped themselves because they were educationally and socially unsound. I think the child’s education comes first, provided you obey the Constitution and do not bus any child past the school that it would ordinarily go to.

HEFFNER: Well, since the question comes up, I think, generally in terms of economic wellbeing…

ABRAM: Yes.

HEFFNER: But there is a relationship that we can observe…

ABRAM: Sure.

HEFFNER: …not that we create or that we want, but then one that we can observe between race and poverty.

ABRAM: You’re right. There’s a correlation.

HEFFNER: All right. Now…

ABRAM: It’s unfortunate, but there is a correlation. I hope that will disappear, but there still is.

HEFFNER: All right. Now, in order to achieve your hopes and aspirations, I come back to the question as to whether busing, in terms of economic status, economic position, is acceptable to you. You reject the notion of classes of people other than economic classes, if I understand you correctly.

ABRAM: Yes. Well, now you’ve raised a question I’ve never thought about. And what you’re saying to me is, “Would you be willing to bus in order to get a balance of income in a certain school?”

HEFFNER: Yes, Sir, because you seem…

ABRAM: Well, I think it’s absurd to try to do it. Educationally, I think it’s absurd to stratify the school system so that you’ve got various levels of income in a school.

HEFFNER: Except you yourself have understood and given expression to the notion that the economic deprivation…

ABRAM: Well…

HEFFNER: …that minorities…

ABRAM: Yes.

HEFFNER: …experience in this country is what demeans their life conditions.

ABRAM: Yes, that’s right. Well, if you could show me that you have some educational benefit to be conferred by engineering a lairing of children in terms of their parents’ pocketbooks in a school system, I would certainly listen to it, and I would not think it’s unconstitutional. I think it would be extraordinarily foolish however.

HEFFNER: Why foolish?

ABRAM: Because I don’t think that learning has anything to do with economic stratification.

HEFFNER: But the reasoning of Brown versus Board of Education did have to do with the impact upon those poorer children.

ABRAM: Sure. Let me tell you how I interpret that.

HEFFNER: Yeah.

ABRAM: And I’m not reading this with 20/20 hindsight. As a young lawyer, that year, running for Congress in Atlanta, and not supporting segregation, and supporting the Supreme Court’s decision, I ran for Congress that year. I did not believe that that decision, Brown versus Topeka, meant anything more than the fact that you would no longer inflict the enormous emotional and constitutional indignity upon a Black child by preventing that child from going to the school to which it was entitled. That’s what I read. And as afar as the emotional impact, I can’t imagine anything worse than for a parent to have to tell a Black child, “You know, that school right down the street that you see all the White kids in this neighborhood going to, you can’t go to it” “Why, Mother?” “Because you’re Black.” “Well, why can’t I?” “Because they don’t think you are good enough.” That’s a terrible thing. And I think that had an educational impact against the child.

HEFFNER: But wasn’t that the basis then for busing, the same sympathies that you’ve expressed, weren’t those same sympathies basic to the origin of busing?

ABRAM: No, I don’t think so. I think the origin of busing grew out of some sentences in that case which the Supreme Court and lower courts at first began to apply which amounted to the court deciding educational policy. That it was educationally better for a Black child to be in a school in which he was not the only race. Now, that may be. But there have been a lot of figures about it. You know, the two Coleman reports, one early supported the view that I think was adopted early. And a later Coleman report adopts the contrary point of view. I’m not sufficiently acquainted with education to know. But I do want to say this to you, and this is very important. The Twentieth Century Fund just issued a report on federal policy in secondary and elementary education. That report had some extremely distinguished people on the panel, including some of the most distinguished Black educators in this country. And there’s one sentence in the report which I would like to quote. And I don’t want anyone to seize it as being the end-all, be-all of that report, because it, I’m giving it in the context as best I can, but the principle is that “sometimes in the struggle for, the laudable struggle for equality, we sometimes forget quality”. Now, let me give you an illustration of it in higher education. I came out of Georgia, and the University of Georgia is my first alma mater. Did you see that a month or so ago, the Department of Education under this administration, the Department of Education ordered the University of Georgia to get rid of the regent’s examination as a condition for graduation? Why? Because less Blacks were passing it than Whites. Now, the governor of Georgia raised Cain about it and said he’s not. And I really think the governor of Georgia is right. I don’t want my degree and the degree of Blacks who pass and who ought to have a degree depreciated and devalued and debased by that kind of struggle for equal results.

HEFFNER: But, you know, I feel about this exchange between us as I did about the exchange between you and Rosenthal in the Times, that here were competing principles, again, both of which you’d embrace. He’s looking for justice.

ABRAM: I’m looking for justice.

HEFFNER: You’re looking for…

ABRAM: No, he’s looking for injustice. He’s looking, he thinks…

HEFFNER: You don’t really mean that, do you?

ABRAM: No, I do. He’s looking for injustice to the person who’s done it all alone, who is displaced by preference given to somebody simply on the basis of color. That’s injustice.

HEFFNER: Mr. Abram, may I say that, in all likelihood, you may say that that would be the result of his quest for justice…

ABRAM: Well, I don’t think his purpose for that report…

HEFFNER: Right. So that he’s really looking for justice for those who have been displaced for so long and you’re looking not to impose injustice upon those who have nor reason to have it imposed upon them.

ABRAM: I’m not overlooking those who have suffered injustice.

HEFFNER: Granted, granted.

ABRAM: But I don’t want to inflict a further injustice.

HEFFNER: But you see, when you asked me before, and you say, “Now, who’s going to answer the questions that come up in terms of preferential treatment?” Wouldn’t it be better if the energies and the genius and the truly good feelings that go into both sides of this issue were devoted to the effort to find an answer to those questions?

ABRAM: Dick, as long as people use race as a classification or religion as a classification in this country, I want nothing to do with that process.

HEFFNER: Wasn’t, isn’t it true essentially which such classifications were used to demean and denigrate and destroy people, but not when such classifications are used to try to bring about justice?

ABRAM: I do not believe you can bring about good ends by hideous means.

HEFFNER: You’re almost…

ABRAM: Almost everybody in society who’s trumpeted a new vision and a new social order and a new utopia, which ended up in dictatorship and tragedy, were seeking laudable ends. But you cannot separate – you as an academic know – you cannot separate ends and means.

HEFFNER: But you know, in a sense it is because of my historical training that I don’t separate them, but I do look back and, well, I wasn’t going to accuse you of being a Fourteenth Amendment voluptuary…

ABRAM: If I knew what “voluptuary” in that context meant, I might either like it or dislike it. (Laughter)

HEFFNER: Well, Floyd Abrams, when he was here, and we talked about being a First Amendment devotee, you used the word “devotee.”

ABRAM: Yes.

HEFFNER: There was a point it seemed to me, when I felt he was willing to back away a little in the quest for a higher justice, that there might be a higher law than even the Constitution. You don’t seem to feel so.

ABRAM: I feel, first of all, there is no higher law in this country. Now, is there a higher political science goal? I think the Constitution embodies the ideal for the political science goal in a society which is so diverse. Poles that got complaints, Italians that got complaints, Aleuts that have complaints, Eskimos who have complaints, Indians who have the first complaints, Blacks of various colors who have complaints, Spanish who have complaints. We all have got complaints. Now, how are we going to quantify complaints without having each other at each other’s throats?

HEFFNER: The great struggle, it seems to me, that we have to indulge in or engage in is to find the answer to that question.

ABRAM: We’re not wise enough to do it, to slice it up that way.

HEFFNER: Well, I wonder if we will survive your concern with what will come from the pursuit of preference. You see it will be private injustice, communal anger, conflict, and tragedy. That’s easy to see. But it may be just as easy to see the dire results of not finding some higher law.

ABRAM: Well, if we don’t solve, Dick, the problem of the increasing number of people who fall below the poverty line, primarily those on single-family, female-headed households, which the Urban League and Eleanor Holmes Norton, this great Black leader, former head of the Equal Opportunity Commission under President Carter both recognize as really regnant problems, if we don’t begin to struggle to find an answer to that, on both the White and Black communities, in the ghettos and in the barrios, we’re going to have problems in this society. But listen to Gilbert Kidd from Amherst, preferential treatment in a job at this television is not going to deal with that problem.

HEFFNER: I told you to begin with that we were going to come to the end and want to continue.

ABRAM: (Laughter)

HEFFNER: Thanks so much for joining me today, Morris Abram.

ABRAM: Oh, thank you. It’s been a great pleasure.

HEFFNER: And thanks too, to you in the audience. I hope that you’ll join us again here on The Open Mind. Meanwhile, as an old friend used to say, “Good night, and good luck.”

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