August 15, 1987
Chief Judge [Wilfred] Feinberg [of the U.S. Court of Appeals, Second Circuit] and friends: As you know, it is wonderful to come up here and, am one of the Justices of this Court who appreciates the circuit, because I don’t have much trouble with it, I sit there at times and listen to the bandying back and forth about all the problems they have in this Circuit and that Circuit, and every now and then somebody asks me, “What about your circuit?” I say, “It runs itself.”
I would like to speak today about an issue much discussed in recent months, in part because of cases which came to our Court from this Circuit last year. I refer to the Sheet Metal Workers case, 1 in which our Court affirmed the excellent decision by Judge Pratt, and to the question of affirmative action. Much has been said lately about the scope of permissible remedies, both voluntary and mandatory, in cases of employment discrimination. The decisions of our Court in this past term suggest to me that there is still a basic agreement among a majority of the Justices that the commands of Title VII and the equal protection clause should be implemented, where necessary, through broad-based relief including the imposition of affirmative duties to eradicate the effects of past discrimination, But because statements in sharp opposition to the use of affirmative remedies have recently been heard with increasing frequency, I think it is appropriate to share with you some general thoughts about why affirmative action is necessary, and on the role which it plays in our law despite many people in high offices trying to explain away our decision. We will explain it.
I believe all of the participants in the current debate about affirmative action agree that the ultimate goal is the creation of a colorblind society. From this common premise, however, two very different conclusions have apparently been drawn: The first is that race-conscious remedies may not be used to eliminate the effects of past discrimination against Negroes and other minority groups in American society. This conclusion has been expanded into the proposition that courts and parties entering into consent decrees are limited to remedies, which provide relief to identified individual victims of discrimination only, But the second conclusion, which may be drawn from our common preference for a colorblind society, is that the vestiges of racial bias in America are so pernicious, and so difficult to remove, that we must take advantage of all the remedial measures at our disposal. The difference between these views may be accounted for, at least in part, by difference of opinion as to how close we presently are to the “colorblind society” about which everybody talks. I believe that, given the position from which America began, we still have a very long way to go. The Framers of our Constitution labored “In order to form a more perfect union, establish justice…and secure the blessings of the liberty.” 2 These were beautiful words, but at the same time a Negro slave was but three-fifths of a man in the same Constitution. Negroes who, finding themselves purportedly the property of white men, attempted to secure the blessings of the liberty by voting with their feet and running away, were to be captured and returned to slavery pursuant to that same document.
The decisions of the Supreme Court in Prigg v. Pennsylvania and Ableman v. Booth 3 demonstrated just how strong the assertion of federal power on behalf of the slaveholder could be. There was undeniable historical truth in Chief Justice Taney’s statement in Dred Scott that at the time of adoption of the Constitution Negroes “had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,” et cetera, et cetera, et cetera. 4
Justice Harlan, as you remember, dissenting in Plessy v, Ferguson, gave the first expression to the judicial principle that our constitution is colorblind and neither knows nor tolerates classes among citizens. 5 If principle of race neutrality, our situation now, ninety years later, would be far different than it is. Affirmative action is an issue today precisely needed because our constitution was not colorblind in the sixty years which intervened between Plessy and Brown 6
Obviously, I too believe in a colorblind society; but it has been and remains an aspiration. It is a goal toward which our society has progressed uncertainly, bearing as it does the enormous burden of incalculable injuries inflicted by race prejudice and other bigotry, which the law once sanctioned, and even encouraged. Not having attained our goal, we must face the simple fact that there are groups in every community, which are daily paying the cost of the history of American injustice. The argument against affirmative action is but an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the la, requires us to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise, we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will be borne by those who are least able to pay.
For this reason, the argument that equitable remedies should be restricted to redressing the grievances of individual victims of discrimination completely misses the point. The point is that our government has a compelling interest in dealing with all the harm caused by discrimination against racial and other minorities, not merely with the harm immediately occasioned when somebody is denied a job, or promotion, by reason of the color of his skin.
It has been argued that the use of affirmative race-conscious remedies inflicts an immediate harm on some, in the hope of ameliorating the more remote hard done to others. This, it is said, is as abhorrent as the original discrimination itself. Some have compared the use of such race-conscious remedies to using alcohol to get beyond alcoholism or drugs to overcome a drug addiction, or a few more cigarettes a day to break the smoking habit. I think the comparison is inappropriate and abhorrent. Affirmative action is not, as the analogies often imply, a symptom of lack of societal willpower; when judiciously employed, it is instead an instrument for sharing the burdens, which our history imposes upon all of us.
This is not to say, of course, that affirmative remedies such as the establishment of goals, timetables, and all of that, in hiring, in promotion, or for protection of recently hired minority workers from the disproportionate effects of layoffs, are always necessary or appropriate. Where there is no admission or proof of past discriminatory conduct, or where those individuals whose existing interests may be adversely affected by the remedy have not had an opportunity to participate, serious questions arise which must be carefully scrutinized in the courts. Like all classifications which condition governmental behavior upon considerations of race, affirmative remedies for employment discrimination must overcome the stringent presumption in favor of neutrality, which the equal protection clause embodies. To undertake such remedies except in furtherance of the most important of governmental purposes, and without substantial assurance that narrower alternatives would not achieve the goal, is wrong. But what the recent statements in opposition to affirmative action do not consider, in my judgment, is the fundamental importance of eradicating the consequences of discrimination which are so visible throughout our society, and the basic injustice which is done by imposing all the costs of those lingering consequences upon those how have traditionally been the victims.
In this connection, it is especially important to reflect upon the role which affirmative relief plays when embodied in the consent judgments, Last term, in Local 93, International Association of Firefighters v City of Cleveland, the Couth held that Title VII does not preclude the ordering of affirmative race-conscious relief in a consent decree entered in settlement of litigation brought under the Act. 7 Six justices agreed that the scope of remedy available in a consent decree under Title VII is at least as broad as that available in judgment after trial on the merits, and may include provisions for race-conscious relief. In my view, this holding is of great significance, We are all aware of the burden and expense which litigation, of whatever size and complexity, imposes on the litigant, Chief Judge Learned Hand surely did not exaggerate in saying that the citizen and death. 8 Where large-scale employment discrimination litigation is concerned, the effects are many times greater. The availability of broad voluntary remedies affords parties the opportunity to settle their differences without the expense and disruption necessitated by trial on the merits, and allows employers, public and private, to correct injustices without being compelled publicly to defend the indefensible. By encouraging parties to enter into such voluntary relief, the Court’s decision ensures great flexibility in the search for workable solutions to the problem of inequality in America.
And this, finally, I believe will be the most important function of affirmative action. The problem of discrimination and prejudice in America is too deep-rooted and too wide spread to be solved only in the courts, or only through the intervention of federal authority to convince the recalcitrant that justice cannot be indefinitely delayed.
Securing equality requires the attention, the energy, and the sense of justice possessed by all the well-intentioned citizens of this society. They need to be assured that the government, the law, and the courts stand behind their efforts to overcome the harm bequeathed to them by the past. They need to know that encouragement and support, not criticism and prohibition are available from those who are sworn to uphold the law. Courts must offer guidance, to the best of our ability, to the attempts by individuals and institutions to rectify the injustices of the past. We must labor to provide examples of solutions that may work, and approaches that may be tried. If we fail, then we delay or postpone altogether the era in which, for the first time, we may say with firm conviction that we have built a society in keeping with our fundamental belief that all people are created equal.
If any one of you is worried about what I mean by the goal of a democracy such as ours, I have often said, and I repeat here, that the goal of a true democracy such as ours, explained simply, is that any baby born in these United States, even if he is born to the blackest, most illiterate, most unprivileged Negro in Mississippi, is, merely by being born and drawing his first breath in this democracy, endowed with the exact same rights as a child born to a Rockefeller.
Of course it’s not true. Of course it never will be true. But I challenge anybody to tell me that it isn’t the type of goal we should try to get to as fast as we can.
1 Sheet Metal Workers v. E.E.O.C., 478 U.S. 421 (1986) Return to text
2 See Preamble to the United States Constitution Return to text
3 Prigg v. Pennsylvania, 41 U.S. 539 (1842); Alabama v. Booth, 62 U.S. 506 (1858). Return to text
4 Dred Scott v. Sandford, 60 U.S. 537 (1896). Return to text
5 Plessy v. Ferguson, 163 U.S. 537 (1896). Return to text
6 Id. (Plessy); Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I). Return to text
7 478 U.S. 501 (1986). Return to text
8 See Address by Judge Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, before the Association of the Bar of the City of New York, Nov. 17, 1921, reprinted in 3 Ass’n B. City of N.Y., Lectures on Legal Topics 1921-1922, at 87, 105 (1926). For more on Judge Hand, see Gerald Gunther, Learned Hand: The Man and the Judge 121-123, 452-453 (1994). Return to text