Dialogue: Assessing Affirmative Action

...repair the damage we have done you, all of you who are members of this group called 'Blacks.'" ND: Then you are using that which you reject as a basis for arriving at that which you seek...

...moment: But the point of the American effort at affirmative action is to get beyond affirmative action, back to an individual-oriented system...

...Nathan Dershowitz was, until recently, the Director of the Commission on Law and Social Action of the American Jewish Congress, and was the principal author of the Congress brief...

...I don't know a single Jew who is not in favor of expanding voting rights for and voting by Blacks—and yet, any sophisticated thinker understands that the more Blacks there are who vote, the less powerful Jews will be in the political process...

...ND: The history of this thing goes back earlier, and our involvement is even greater...

...The reason this case is so heartrending is that you're talking about an economic downturn and you're talking about people being laid off...

...If you introduce quotas you'll never be able to free yourself from them...

...In the end, we also consider the alternatives...

...In that case, the Jews were uniquely hurt, because of the history of the Boston school system...

...I would hope that the Supreme Court of the United States would decide in this case that an integrated police force isn't unconstitutional, and that the traditional There are situations where it is more important to get to equality than to hang onto the opposition to quotas...

...Here is someone who suffered, from a different cultural background, someone who was deprived in every way...

...Our message at AJC is different...

...moment: A number of years ago, the Chief Justice of the First Circuit, in a case involving minority representation in a contracting work force, wrote, "It is by now well-understood . . . that our society cannot be completely color-blind in the short term if we are to have a color-blind society in the long term...

...I firmly believe they were wrong in this case, and I believe that for the same reason you believe they were right...

...AD: I think that this is one of those excruciating occasions when the courts, without purse or sword, are obliged to tell a city that it may not, without very compelling evidence of the absolute necessity for doing so, create this kind of conflict by cutting back on funding...

...AD: What's wrong with that...

...Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new opportunities less accessible...

...Such a situation arises when there's no alternative...

...Later, in 1975, the decree was reformulated to provide that henceforward, one minority policeman must be hired for every white policeman hired until such time as the proportion of Black and Hispanic policemen on the force would reach the proportion of Blacks and Hispanics in the population at large...

...But some of us might question whether it's all that reasonable and whether it ought to be so inviolate...

...Preferential treatment is one partial prescription to remedy our society's most intransigent and deeply rooted inequalities...

...Her father had left the country, and she had come to the United States and done very well here...

...I have greater faith in the capacity of white America to be creative in constructing barriers to equality than I have in the capacity of the courts to be creative in lowering them...

...If that means you've got to raise funds, raise funds...

...Are you really saying that we ought to fight for our own interests—economic or other—no matter what the effect on others, or on society as a whole...

...Again, the First Circuit affirmed the decision of the lower court, and the case was then brought before the Supreme Court of the United States...

...Let's understand that there were never Jewish quotas in the United States...

...Still, the division reflects the ambivalence of the organized Jewish community towards affirmative action (with its implicit suggestion of quotas), as well as the ambivalence of many individual Jews...

...I think this issue transcends individualized interests, that it's an issue of important principles...

...The issue is extremely divisive for the Jewish community, it's very heart-wrenching, and in the end, we're going to get the blame no matter what happens...

...ND: This same debate took place in 1980 or '81 at the meetings of the National Jewish Community Relations Advisory Council...

...One ought to help another group become equal, one ought to help it overcome the stigma of the past...

...It's creating the kind of antagonism that disables even people of good will...

...usually, Jews charged more for their labor, and usually, back then, they worked less well than the more experienced Arabs...

...I think that when you talk about removing past injustices by establishing racial preferences, you move farther from rather closer to the ideal society, where race is regarded as irrelevant...

...Having said that, we then go beyond that and say to the Court that it doesn't have to take the case as the parties gave it to the Court, that it can frame its response in more imaginative ways, that the Court has an obligation to give us some direction here...

...it does not follow from their intervention here that the two organizations would necessarily come out on the same sides in other cases arising out of the policy of affirmative action...

...For example, when Harvard Law School wanted to have an affirmative action program, wherein they would accept SO black students a year, I applauded that—and said that we ought to admit 50 additional students a year...

...moment: Isn't is curious that a case that has provoked significant disagreement within the Jewish community arises out of facts that have very little direct relevance to Jews...

...In the spring of 1981, following the passage of Proposition 2'/2, a tax reduction initiative, the city of Boston proposed to reduce the size of its police force...

...They don't call it a Jewish quota, but all things being e\]ual, religion still comes into play in many decisions in many aspects of American life today...

...there are ways of increasing the sources of power...

...In this case you say the courts were right, we say they were wrong...

...I happen not to be a great enthusiast for meritocracy...

...ND: In addition to which you've got the problem of naming the affected groups...

...The issue here is whether race should be given great weight—indeed, exclusive weight—in hiring and firing, and whether that should be at the expense of others...

...If you have an existing statute that says you've got to terminate people in a certain way, you either have to follow that statute or you have to declare it unconstitutional...

...AD: I guess I'm a member of Breira on that—I think there's always an alternative...

...Let me give you two figures here...

...That was their affirmative action program...

...I'd have the courts do almost anything rather than have a segregated layoff list...

...You wanted to say, "Look, in the end we want to be together with the Blacks and the other minorities who suffered with us, we want to build bridges...

...Actually, we still have ceilings on Jewish students and on Jewish faculty at most major American universities and other institutions...

...They didn't rest the argument on economic grounds...

...In some respects, there is such a conflict in the affirmative action issue...

...My point is that if you keep a rigid seniority system the people who are going to suffer are from the disadvantaged groups that have been the last to be hired...

...A tremendous amount of divisive race hatred is being generated on the basis of the reality that the Jewish community is divided over an issue that affects it very deeply and very pragmatically, that divides the Jews morally...

...moment: Still, does that explain the passion of the Jewish response to affirmative action...

...Yet in this case, people say that the principle of seniority shouldn't be touched, shouldn't be challenged...

...moment invited two leading attorneys to "argue" the case for our readers...

...moment: The one area where you both enthusiastically agree with one another is in the area of alternatives, an area that is surely not widely appreciated or discussed...

...Why should Jews, as distinguished from all other groups, not be primarily concerned with their own self-interest, with their own ethnic interest...

...AD: I would hope that's exactly what they would find...

...There I think we've got to work at expanding the pie, which I think, with some effort, can always be done...

...AD: In the end, the Anti-Defamation League brief asks the Court either to reverse or to remand the case for further findings...

...But it is an aspect of a larger problem that does hit us where it hurts most—namely, in the field of education...

...The worst kinds of divisions in society are divisions based on race, religion and ethnic background...

...Let me give an example here...

...The principle that I'd most like to see acted on goes like this: Clearly, we have a crisis in this country, of which Boston is just a microcosm...

...The idea was to look for those who have been disadvantaged and to bring them into the mainstream...

...Instead, we just jumped to using race as the criterion...

...Both Einstein and Sinai had policies that held that if you were a member of a racial minority—that is, if you would lend "diversity" to the school, as called for by the Bakke decision—you would automatically get an interview...

...moment: Let's push on that for a bit...

...When the issue is self-interest vs...

...The difficulty was that during the mid-70s and later in the 70s, we went beyond the difficult process of finding the people who had been disadvantaged, and we developed an affirmative action program with straight quotas...

...Now, equality may be a worthy principle—but power...

...But when the issue boils down to whose interest prevails, when it's our interest vs...

...And that's different from what we're saying...

...ND: Our point was that if you have a clash between two principles, the court was entitled to resolve it the way it did...

...I think that cases such as the one we've been discussing, where you are terminating people on the basis of race, have very damaging effects...

...moment: In the case at hand, then, you can't see any conflict between self-interest and principle...

...In Chicago, or New York, or Philadelphia, or Los Angeles, when you begin to get large amounts of black participation in the electoral process, the Jewish voting power is necessarily diminishing...

...On the one hand, we have a commitment to a desegregated, to an integrated, society...

...We've had this debate within Jewish organizations on the underlying principle well before these specific cases came along...

...I think that's what the Jews have done, and done well, over time...

...ND: There is certainly a conflict of principle here, but I'm not sure it's the principles you're describing...

...AD: I think that's wrong...

...He was only interested in a Jewish ceiling, in making sure that there were no more than 10 or 12 percent Jews in the student body...

...ND: But then why didn't you sign the American Jewish Congress brief...

...AD: What using race-conscious quotas points to is a battle for power...

...Weren't Blacks in fact arguing that, given the history of discrimination, the only acceptable evidence that an affirmative action program was really being energetically pursued was in the results it produced...

...The story didn't end unhappily: She was accepted by a medical school on the West Coast...

...That's why I always start with such a strong bias against even knowing what a person's race is—no matter what the alternative is...

...Let's look for creative ways out of the conflict, even if creativity costs money...

...And that's what makes it so slippery to try to create a distinction between access and power...

...Not so long ago I helped a young woman get out of an Eastern European country...

...And it can get really messy, as when one of our truly brilliant minority students at Harvard goes out onto the job market, and it's not he who suffers from self-doubt, but his prospective employer who doesn't know whether his record is real or is the consequence of affirmative action...

...That doesn't mean that the court acted in the best or the wisest fashion, or that the court could not have been more imaginative...

...But I'd be fighting just as hard if it were "only" a matter of self-interest...

...You say, Alan, that your friends are blaming the Jews for scuttling affirmative action...

...Back in the early part of this century, one of the most fervent ambitions of the pioneering settlers of what was then Palestine was "self-labor...

...But my point is that Sinai and Einstein found it so much easier to have a simple rule about these things that they avoided looking at individual backgrounds...

...The district court found in their favor...

...The opposite of racial quotas is randomness, coin-flipping...

...they were lumped together as Blacks, and their individuality was of no use...

...moment: It's likely the case that no domestic issue in recent memory has so exercised the Jews...

...We had our first excruciating debate over this matter, right here in Boston, in connection with the school teachers case, where a group of Jewish school teachers had been fired as a result of the same process we're talking about here...

...We have to impose on an unwilling population the recognition that you may have to spend more money in order to avoid horrible, wrenching social conflict...

...non-home owners, which is what would happen if Proposition 2Vi became the issue here...

...That's principle...

...That's a way of insuring that the alternatives won't be considered...

...That's why affirmative action has become a code word in the black community, a way for that community to determine who is for them and who is against them...

...There may be, hypothetically, down the road, a tragic situation where you have to choose between segregated municipal services and a segregated layoff list...

...Now that's a reasonable thing for briefs to try to do...

...Is that really so different from what the court did in the context of the cutback in support for prisons in Alabama several years ago...

...Once a law school gets to be SO percent Jewish, it becomes very concerned...

...When President Lowell of Harvard established what was called a "Jewish quota," he wasn't out beating the bushes to get more Jews to apply until the quota was filled...

...The culture will persist in its efforts to deny access...

...So back then we were ready to abandon the merit system, because a different principle was more advantageous to us, conformed more closely to our needs...

...On the one hand, you have here an effort to fashion an integrated society...

...We want, beyond that, integration, which we're still very far from...

...Today we have minority floors...

...But what if there really is no alternative...

...His brother, Alan Dershowitz, is Chairman of the Civil Rights Committee of the Anti-Defamation League, and a Professor of Law at Harvard, moment was represented by its editor-in-chief as well as by Daniel Levenson, a distinguished Boston attorney...

...moment: But as you yourself observed earlier, the sources of power in any society are culturally defined...

...Our message is that we believe equality is so important that if you can show us that there is really no alternative to quotas, then we will choose quotas rather than discard equality...

...Now there's also a question of how the pie is distributed, and the problem that minorities don't have an appropriate slice of the pie...

...What the brief asks is that the Court emphasize the priority of the Civil Service statute...

...it's also self-interest, because I don't like a segregated city or a segregated community...

...And since Temple accepted a lot of people under this rubric, very many Blacks were also accepted...

...After all, the Jews made it in this country in no small measure due to the introduction of the merit system...

...You can do whatever you want, but you can't cut back on the integration...

...AD: I disagree...

...At a time when we have such horrible conflicts between race relations and seniority, neither of these principles should be made to suffer, but all the people of Boston should be made to pay a couple of bucks more...

...Of course special efforts have to be made to bring those individuals who have been most discriminated against into society's mainstream...

...They rested their argument not on merit, but on the needs of the developing Jewish society...

...Is that a plausible outcome...

...There were ceilings, not quotas...

...Now I'd like to go back to the implications of all this for the merit system...

...On the other hand, you have a seniority system, or some sort of objective criterion for determining who suffers most during times of economic retrenchment...

...A class of Black and Hispanic candidates who had been denied appointment as police officers brought suit, alleging a policy and practice of discrimination against minorities in the hiring of police officers...

...Are they absolute...

...Who gets laid off under these circumstances...

...They were wrong because they failed to consider, and adopt, other alternatives...

...In practice, this meant that some white officers with as much as eleven years of seniority were laid off, while the most senior of the minority members to be laid off had less than two years of service on the force...

...Let me simplify for a moment...

...Few domestic policy questions have exercised the American Jewish community in recent years more than the matter of affirmative action...

...From 1973, when preferential hiring began, roughly 46 percent of all the newly hired policemen in Boston were from minority groups, increasing the representation of these minorities on the force from 2.3 percent (in 1970) to 11.7 percent (in 1981...

...I don't support any of the alternatives to racial quotas with much enthusiasm—but I oppose racial quotas with very much enthusiasm...

...She wanted to go medical school, and she hoped to go to a Jewish medical school, so she applied to Einstein and Sinai...

...I am suggesting that it would be far more race-neutral, and far less divisive, to go in that direction...

...So now the society says, in effect, "We will try to I firmly believe the courts were wrong in this case, and I believe that for the same reason you believe they were wrong...

...Might it be that they see us as using broad, noble principles to defend our own narrow self-interest...

...And once a group, as a group, begins to acquire power, they're not going to let go so easily...

...ND: But if that's so, then why is almost all of our brief devoted to examining alternatives, while in your brief there is no discussion at all of alternatives...

...That system used to discriminate against Jews—more accurately, it used to discriminate against everybody except Irish Americans...

...ND: What the courts could do in this case is to say to Boston, "If you are going to have a police and fire department, then it has to be an integrated police and fire department...

...Pedro Castro, et al., recently argued before the Supreme Court of the United States, a case in which two of the leading Jewish community relations organizations of this nation hied amicus briefs on opposing sides...

...ND: My problem with the ADL position is that before you express a readiness to explore the alternatives, you come with the announcement that the proposed solution, which relies on quotas, is wrong...

...AD: Let's get to the specifics of this case...

...We're not saying the court is right in this specific case, or in every case where it decides for quotas...

...Because if they are, then you're saying that the court was wrong...

...After all, you've already got some pension benefits and so forth...

...ND: Yes, but you can get to those results by doing the difficult work, or you can get there through shortcuts...

...Now, the firemen and policemen case obviously does not uniquely involve Jews...

...But this is not that hypothetical case...

...On the one hand, you have the segregated police and fire departments...

...On the other hand, you have the segregated layoff lists, the product of a politically seductive gimmick—Proposition 2'/2, which forced the city to cut back on personnel—and of a very political mayor of Boston, who well understood that the best way to get funding for those jobs restored would be to let the axe fall on white firemen and policemen...

...The ADL, as you know, builds bridges in a wide variety of other directions, and has been very active in other ways in intergroup relations with Blacks and other minorities...

...If you start firing the Jewish teachers and transfer lots of the new black teachers from the non-academic programs in which so many of them have been teaching—who will suffer...

...But from the larger standpoint, we're reflecting our stake in the way the society works...

...And that's one of the issues raised by these cases...

...AD: But if that's so, why did you come into the case in support of respondents, urging that the judgment should be affirmed...

...Our children...

...That's what we're talking about here...

...I want to go back to one point that was raised earlier, where you touched on Jewish quotas...

...That message ought to go out to the black community, which has displayed growing insensitivity to our feelings about Israel...

...It seems to me that the best way to force a consideration of alternatives is to reverse the decision, to find against the proposed quotas...

...layoff system isn't unconstitutional, but that Proposition 2'/2 is unconstitutional, that this whole thing is a politically imposed gimmick...

...That's the principle that's at stake here, and it clearly is not of equivalent weight to the goal of an interested society...

...In fact, it seems to me one could make the opposite argument from the one that's usually made, defending the seniority system...

...There's a real irony in looking to group-oriented solutions rather than to individual-oriented solutions...

...And few cases better illustrate the complexities of the affirmative action problem than Boston Police Patrolmen's Association, Inc...

...Growing up poor in Appala-chia, or having been married at 17 and having children at 18, or having worked pumping gas by day and gone to school at night—people like that could be considered under this alternative method...

...I don't know of a single school that tried to fill a Jewish quota...

...The facts of the case at hand are, of course, specific...

...What kind of disadvantage...

...Let me tie this to something we were talking about earlier...

...From the narrow standpoint, that might look like we are ignoring our self-interest...

...on appeal, the United States Court of Appeals for the First District affirmed the finding, and remanded the case to the lower court to mandate a preferential hiring remedy...

...You can say that from a self-interested standpoint, you're less concerned about your own parochial success and more concerned about the health of the system...

...If, for example, you take the admissions process of the university I'm most familiar with, you find that the minority members that are most often admitted, both to the student body and to the faculty, are those with the most significantly advantaged backgrounds...

...And why even bother considering alternatives if quotas are always and everywhere wrong...

...So I see this as an unmitigated tragedy for the Jewish community, as well as for the black community, a tragedy that arises out of factors beyond the control of either community...

...Are these two principles of equal weight...

...You'll find heated debates within the American Jewish Congress going back at least to 1972, debates on precisely the matters that later came up through the Boston cases...

...I should note here that the Reagan administration claims to have come up with a reasonably large number of settlements that have required alternatives to race-conscious programs, but I take that with a grain of salt...

...But that's not the issue that's come before the Supreme Court...

...We tend to overlook this, in part—another irony—because those within the minority groups who are most able to get the attention of the media are themselves the ones who benefit most from the group-oriented solution—that is, the most advantaged...

...That's what leads me to look for ways to expand the pie...

...We looked at work-sharing programs, at vacations without pay, at eliminating overtime...

...I think it's very important to use the words "ceiling" and "floor" instead of the word "quota," because what we are experiencing today is very different from what we experienced a long time ago...

...If that means that Proposition 2'/2 is inoperative, then it's inoperative...

...someone else's interest, the adversary system demands that we fight for our self-interest and let other people fight for theirs...

...They wanted to create a Jewish working class, and, in order to do that, they went to Jewish employers and they insisted that Jews be hired in preference to Arabs...

...I think it's wrong to think of meritocracy as the opposite of racial quotas...

...we used simplistic, race-conscious devices, and once you do that, then the Blacks are perfectly right to look at the results rather than at the method...

...So when it came time for layoffs, Jews were disproportionately affected...

...I doubt that's very different from the views of most American Jewish Congress members, and I must say that I'm not at all upset that there are Jewish organizations that take somewhat different views of these matters, that place their emphasis on different elements, because there is a real diversity within the Jewish community that is thereby fairly reflected...

...Likewise, when the City of Boston says it doesn't have enough money to keep enough policemen on the force so that we can have an integrated police force, my answer to that is that they've got to get the money, and spend the money...

...That's because seniority looks like an objective criterion, a criterion that has nothing to do with race, but it permits you, if you adopt it, to preserve some pre-civil rights practices...

...It's very difficult...

...The issue that came to a vote there was whether or not, in a situation where there is a court-ordered remedy, our Jewish organizations would oppose quotas...

...But when you consider this a group problem rather than an individual problem, you get into the area of group power...

...But in the intervening decade, the proportion of Blacks and Hispanics in the city grew substantially, reaching 30 percent by 1981—leaving the minorities still radically underrepresented on the force...

...The district court forbade the implementation of the "last hired, first fired" rule in the case of the police force, establishing instead segregated seniority lists, and requiring that layoffs be conducted on the basis of these lists in such a way as to preserve the 11.7 percent minority representation on the force...

...Sure, it's a very hard and very dangerous argument, but there the court said that it would not permit state fiscal considerations to force a choice between freeing dangerous people, on the one hand, and confining them to cruel and unusual prison circumstances, on the other...

...Affirmative action would seem to generate an analogous tragedy, in winch the person who's been helped can't know why he succeeded—is it because of his merits, or is it because ofhis membership in a group that is being given a special boost...

...They are not legally defined...

...It would be an innovative role for the courts to play, but racial quotas and affirmative action are also innovative directions...

...We're saying only that the courts can be right in ordering quotas, while you say that if they order quotas, they're necessarily wrong...

...And that requires significant attention to pluralism—which is as good a final invocation as any...

...I don't think the minority students themselves benefit, and I don't think that the universities benefit...

...So maybe we ought to have a "first in, first out" system...

...We debated the issue and fought it out because of beliefs and feelings we had and have about the way we want to see America develop...

...Since the group was the target of the discrimination, we seem to be saying, the group has to be the object of the remedy...

...Now that affirmative action comes along to modify the merit system, we get all riled up...

...Under Massachusetts law, layoffs of civil service employees (including police officers) must be conducted on a "last hired, first fired" basis...

...And that's very dangerous...

...It doesn't relate directly to the school situation...

...And I'd have to say that affirmative action these days is increasing intergroup tension, not reducing it...

...AD: I agree that there are different dimensions to self-interest...

...So there's a clear conflict between self-interest and principle, and every Jew I know resolves that conflict in favor of principle...

...Look, we want an end to segregation, which is still with us...

...There's no principle that says that you've got to help another group become powerful...

...There aren't very many Jewish policemen and firemen in Boston...

...ND: The basic problem in the United States is that we developed, as a nation, on the basis of a profound belief in individual merit and a profound rejection of group identification...

...Now, what all of this shows is that this is not our fight, not the fight of the Jewish community, because it is a response to expedient political factors well beyond our control...

...moment: But it's not that simple...

...You can't separate integration from power...

...moment: Would you share the view that the visceral reaction of the Jewish community to affirmative action derives mainly from our collective memory of quotas and from the practical difficulty of distinguishing between affirmative action programs and quotas...

...So you can't say the argument in its more pristine version is "just" about integration...

...That's not an issue of great principle, one way or the other...

...After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed...

...And then 50 percent of all the Hispanics on the payroll in New York were fired during that period...

...Once you open the door, all kinds of groups want in...

...I think that gives out a message, and it's the same message as this brief by ADL gives out, which is that you will stand by your principled opposition to quotas no matter what...

...You end up helping the most advantaged members of the group you're concerned with rather than its most disadvantaged members...

...ND: Actually, if you look at the figures, you'll see that there has been a dramatic increase in the number of union contracts that have seniority provisions since the increased attention to civil rights concerns became a factor in employment...

...I think the only people who benefit from today's race-specific programs are the admissions officers at universities...

...I'd be in favor of coin-flipping rather than racial quotas, if it came to that...

...Is it fair to say that what we have here, among other things, is two principles bumping up against one another...

...Blacks in this country were not singled out as individuals...

...ND: No, not at all...

...It's certainly not inviolate in Massachusetts, where it gets superseded by veterans* preferences, by union officials, by all kinds of things...

...Every rich kid in America has to ask himself that question, every Brahmin in Boston, every WASP (that's a white, Ashkenazi sabra with protektsia) in Israel, everyone born into a favored environment anywhere in the world has to ask himself whether he made it on his own or with outside help...

...The Anti-Defamation League of B'nai B'rith filed an amicus brief urging the reversal of the lower courts' decision...

...And desegregation and integration mean greater access...

...And the process was doubly poignant because you didn't only have these laid-off Jews to worry about, you also had black parents who were coming in and saying, "Please don't allow this to happen because these teachers have been the ones most concerned about our children and the ones most interested in getting our children into good colleges and universities...

...We in the AJC, in our support of affirmative action, take as our bottom line the opposition to quotas—except when they are used by the courts as a remedial device where there simply is no other alternative available...

...We're simply starting out with a very strong presumption against quotas, but I can imagine a situation in which there really are no alternatives, where we really have to choose between a segregated society and a society that can be integrated only through the adoption of quotas—and, speaking as one member of the ADL, and only that, I can say that under those circumstances I would have to consider the quota alternative very seriously...

...moment: Did you seriously mean what you said earlier about the courts ruling Proposition 2Vi unconstitutional...

...For myself, I could go either way on seniority...

...One might also imagine the multiplication of alternatives through innovative forms of organization, such as decentralization...

...Alan Dershowitz AD: This case involves a tragic—and artificial—conflict...

...How do we choose...

...AD: Let me tell you a poignant story about how these programs can be misunderstood...

...Already there's talk—I hear it all over—that "Jews are scuttling affirmative action...

...The issue that's come before the Supreme Court is whether the lower court was entitled to come to the conclusion it did—and we think it was...

...Affirmative action was first used by Kennedy and Johnson in the early 1960s as an outreach program...

...If you use the early Zionist model here, it doesn't fit...

...You're no longer talking just about desegregation or integration, you're talking about Blacks as a group seeking to use this process to get more power...

...As a penultimate solution, the court can force the state, or the city, to make the necessary allocation so that the conflict can be avoided...

...People tell me that "affirmative action" has come to be as emotional a phrase for Blacks as "Israel" is for Jews...

...Here, two brothers—lawyers for the opposing views—argue the issues...

...What you've just said captures exactly the thrust of our brief, and is contrary to the ADL brief...

...What the ADL is suggesting by asking for a reversal is that the statute be declared constitutional...

...moment: There's a sentence somewhere in James Baldwin that suggests that the real tragedy of being Black in this country is that when you fail, you can't know why you've failed, whether it's because of your own limitations or because you're Black...

...Both schools turned her down for an interview...

...We clearly have to see an end to that...

...The facts of the case are as follows: In 1970, when Blacks and Hispanics numbered roughly 16 percent of the population of the city of Boston, they accounted for less than three percent of Boston's police force...

...There are examples of schools that did undertake the difficult process and that did increase the number of minority students without recourse to a quota system...

...I don't think anybody on the policmen's side or the firemen's side of this thing in the Jewish community is trying to sanctify the principie of seniority...

...First were the female police officers, 250-300 of whom had been hired as a result of the affirmative action programs of 1972...

...But power is something else again...

...This is not, after all, the New York City school teachers case...

...We're saying, basically, that equality is the overriding principle, that there are situations where it is more important to get to equality than to hang on the opposition to quotas...

...We're not exactly disinterested parties, are we...

...All of us, of course, hope that one can come to examine and adopt alternatives within the context of an expanding economy...

...There is really a strong Jewish abhorrence for quotas...

...AD: Of course I do...

...My point is that it's not that meritocracy is so good, but that counting race is so bad...

...You might say that the longer you've been on the job, the less you may need the job...

...Then, for a couple of years, you had a kind of golden era during which Jews and others were equally hired, and that was followed by the period of affirmative action, with most jobs going to minority people...

...In 1974 and 1975, during the economic downturn, two groups were fired in New York City...

...If we look at the church-state issue, for example, there have been many occasions on which we've fought against having a menorah in a school building...

...It's so much easier, say, for an administrator in a law school not to look at every file very, very carefully and to see who has overcome economic or cultural disadvantage, but, instead, to simply look at an applicant's color and to admit him on that basis alone...

...We shouldn't be the only group in the country and in the world that neglects its self-interest...

...Now, as a society we just didn't make the effort to come up with models like that...

...AD: Or if it means time-sharing, or if it means cutting back on salaries of existing personnel, then that's what it means...

...So you went out to find the students who hadn't had the chance to get a better education, and you brought them into the system and gave them equal opportunity, and you hoped they would flourish...

...My response to that is that if that's so, then we should remember that Israel is as important to Jews as affirmative action is to Blacks...

...principle, obviously one should resolve it in favor of principle...

...AD: We're arguing over nothing...

...in fact, there aren't very many Jews in Boston...

...In fact, there is really only one philosophical difference that divides us...

...All sorts of things can contribute to power, and the devices the white society uses to deny power to groups it disfavors are essentially infinite...

...ND: You have to put that in an historical context...

...If the reduction in the police force had followed this rule, the percentage of minorities would have declined to 6.2 percent...

...That way, everybody would have to suffer just a little bit—larger classes and such—but nobody would be deprived of having a place at Harvard Law School on account of race...

...The question of whether Boston spends more money, or goes into work-sharing—those are not questions of principle for me, those are issues of governmental operations...

...ND: But the brief doesn't say that...

...A student can apply to Temple either under the traditional method, or he can ask to be considered because he has suffered from some disadvantage...

...AD: But it might have been...

...Now the first step in getting into medical school is to get an interview...

...On the other hand, we have a commitment to the merit system, to some kind of color-blind system of employment...

...AD: That problem is not limited to minorities or to Blacks...

...The AJC and the ADL share that...

...the American Jewish Congress argued, in its amicus brief, that the decision should be upheld...

...AD: I wish we could shift the debate back to an emphasis on equality, an emphasis on fairness, because there Blacks, Jews and all Americans have a commonality of interest...

...I think that meritocracy merely freezes a great many economic, educational, familial and general background advantages...

...Most American institutions are very concerned with what they call "tipping points"—they don't want to become "too Jewish...

...Boston is a city that has historically had a segregated educational system, that has been segregated in its provision of municipal services, in its cultural life...

...ND: We should make clear that certain kinds of affirmative action have had very positive effects...

...AD: We don't want to duplicate material that has been so excellently prepared...

...The defendants agreed to a consent decree that provided for the priority hiring of a specific group of minority applicants who had passed the 1972 examination...

...I am not so concerned when people are benefitted on the basis of race, but I am deeply concerned when people are disadvantaged on the basis of race...

...ND: In the case we've been discussing, we really did make a major effort to explore alternatives to quotas...

...Now, isn't it the case that what America is saying, through its affirmative action program, is that there is something—at least for the time being— that is more important than excellence...

...And we don't have minority quotas today, either...

...Increasingly, however, the debate isn't about those things at all, it's about power, and we ought to know that no group voluntarily gives up its power...

...AD: I'm speaking for myself now, and I have to say that I don't regard the Jewish interest in this case as lying with the continued vitality of the seniority statute—a statute, incidentally, that has nothing at all to do with merit—that exists in Massachusetts...

...AD: Both briefs are, in large part, public relations oriented...

...The point is that power in a pluralistic society is not a fixed entity...

...Your brief comes out in favor of respondents because you are in favor of the Blacks who were fired...

...Greater access means greater power...

...Most of us don't understand the fight, because to understand how Boston and Massachusetts politics works you have to have lived here for at least three generations...

...But you can define self-interest as a principle...

...moment: But if society gets bogged down in a debate about how large a slice of the pie each group is going to get, we'll all end up with crumbs...

...Here's diversity...

...She had been a real heroine, taking care of her brother and her grandmother from the age-of 13...

...We anticipated those problems, and we fought them bitterly even though there was no case pending at the time...

...I would much prefer to see,'if we have to have divisions, divisions based on home owners vs...

...I wrote to the deans of both schools on behalf of this woman saying, "You want diversity...

...We haven't used the group, or group identification, except negatively, as a basis for identifying people here...

...The ADL took the position that it was never appropriate to order quotas as a remedy, and that the ADL would never support such a remedy...

...When there are conflicts between principle and self-interest, I'd like to see them resolved in favor of principle—but I hope we can resist adopting as a principle the idea that other people's self-interest takes precedence over your own self-interest...

...We've created an artificial system called seniority, and we hold it up as an objective, reasonable criterion...

...We're saying that you might have to end up with quotas— but you've got to examine other possibilities first, that quotas can be adopted only as a last resort...

...So I think both organizations in different ways are trying to build bridges and at the same time to maintain principles that are very dear to them...

...The ADL wanted to avoid coming out in favor of the policemen and firemen, because that would have made us seem to be in favor of returning to the old system of segregated municipal services...

...Temple University is the best example...

...ND: But the findings it talks about are not findings of alternative solutions...