Another factor, in the case of the 1975 amount, was a last minute discovery of restrictions on contract awards which prevented the planned spending of some $1.5 million in contract award to firms who were to do certain data collection and analysis.

VACANCIES

Mr. ROYBAL. How many vacancies did OCR have at the end of fiscal year 1974, fiscal year 1975, and how many vacancies currently exist?

Mr. GERRY. At the end of fiscal 1974, there were 120 vacancies; for fiscal 1975, 62 vacancies and for fiscal 1976 there were 119 vacancies.

Mr. ROYBAL. How many of these vacancies have been equal opportunity specialist positions?

Mr. GERRY. In fiscal 1974, it was 58. For fiscal 1975 it was 30 and for fiscal 1976 it was 69.

Mr. ROYBAL. Why have so many vacancies existed?

Mr. GERRY. Time constraints related to the late date of final funding clearance and actual opening of the jobs.

Mr. FLOOD. Mr. Michel?

OCR EMPLOYMENT BY RACE, SEX

Mr. MICHEL. When the Labor Department was here, they told us that white males comprise 42 percent of the eligible work force in this country. Yet, according to figures you provided us last year, white males comprise only 19 percent of the staff in your own Office for Civil Rights. Doesn't it appear that you are discriminating against white males?

Mr. GERRY. Not if you keep in mind that white males do very well in filling jobs at the GS-9 and above levels and that the jobs below that level are primarily secretarial and neither white nor black males seek those jobs in any appreciable numbers. I would like to offer a table which shows this employment breakdown in the Cffice for Civil Rights.

[The information follows:]

PERCENTAGES OF STAFF BY RACE, SEX, AND GRADE

Mr. MICHEL. Aren't you open to the charge that you cannot fairly enforce civil rights laws and so-called affirmative action plans when your own staff, comprised of 62 percent minority and 57 percent female, is so out of balance with the eligible work population of the Nation as a whole?

Mr. GERRY. Well, as I indicated, based on the breakdown by job level, and pool of persons wanting to be secretaries, I do not think there is an imbalance. I do not believe it is a supportable charge.

Mr. MICHEL. If we give you the additional 150 positions you are requesting, will race and sex be factors in filling these positions, and if so, in what proportions do you expect to hire?

Mr. GERRY. As I believe I indicated earlier to Mr. Roybal, the OCR generally is underrepresented in employment of Asians, American Indians and Hispanics. I would be happy to furnish the committee with a copy of the Office's affirmative action hiring plan.

Mr. MICHEL. Will any effort be made to rectify the current imbalance in your office, or do you consider that balance to be in accord with your overall affirmative action policy?

Mr. GERRY. Mr. Michel, I am anxious to improve our efforts to hire Asians, American Indians and Hispanics and believe that, on balance, we are moving, consistent with our affirmative action hiring plan, to do that.

Mr. MICHEL. At what point in the history of civil rights law did "discrimination" begin to be defined as racial or sexual "imbalance?" Mr. GERRY. The Office for Civil Rights does not define discrimination simply as a matter of racial or sexual imbalance. We know that members of the public and the media often use the term "imbalance," but we believe that term is not a valid or accurate characterization of our procedures or our standards regarding discrimination and we would prefer that it not be used. Our practice adheres to the position taken by the Supreme Court in the Swann case, let me read from the Court's decision.

As we said in Green, a school authority's remedial plan or a district court's remedial decree is to be judged on its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations.

Mr. MICHEL. Isn't this the criteria you are currently using in your enforcement activities-whether races are in the proper mix, based on the breakdown in the community, and not whether there is in fact actual discrimination?

Mr. GERRY. As indicated in my prior answer, we do not equate racial imbalance with discrimination. We believe that in some instances, statistics regarding the distribution of students or faculty by race, when compared to residential patterns or the total number of minorities in the school system, can legitimately be used to point out where discriminatory practices are likely to exist. Sometimes, the data will show not only an imbalance in the percentage of minority enrollments among schools, but also a disparity between the actual enrollments of such schools and enrollments which might be anticipated on the basis of residential patterns. In such circumstances, this data may establish a prima facie case of discrimination, warranting a rebuttal by the school district. However, the proof of discrimination must turn on the fact of discrimination, not merely on statistics.