one instance does not force the University in any way to make an appointment in another instance. On the other hand, the style of federal enforcement thus far involving as it has a variety of forms of tough handling, including real or threatened suspension of federal funds, can occasionally cause university administrators to make mistakes in order to remove themselves from the stress caused by government pressures. For example, President McGill has seen letters from deans and department chairmen in universities across the country stating that a faculty appointment being offered was specifically reserved for a black person or a woman. In a letter to a brilliant Chinese student in physics at Columbia, a university in the mid-south explained that he could not be considered for faculty appointment because the appointment was reserved for minorities under the protection of affirmative action and that even though he had an oriental name, he was not an American citizen and thus not qualified. This kind of thing is illegal and must be stopped. These examples, including the one just cited, are illustrative of panicky, over-zealous reactions on the part of university administrators attempting to interpret their obligations under affirmative action rather than what I consider an accurate reflection of federal policy. It is still too early to judge the full force and effect that affirmative action has had on American colleges and universities. Everything depends on how the federal government intends to enforce affirmative action programs. It seems perfectly correct that universities should state numerical objectives for faculty employment of minorities and women provide that such objectives are treated as good faith statements of what universities seek to achieve and not as enforceable contractual commitments. The question arises as to what will happen should a university, despite its best efforts, fail to meet its goals. Is such a failure to be treated as a violation of a contractual commitment to the government and thus subject to federal enforcement action? If this should happen, then the so-called goals of affirmative action are employment quotas, no matter what they are called. DEBARMENT FROM FEDERAL CONTRACTS Withholding contracts is a drastic remedy and its use as a tactic to express displeasure or to force compliance exacerbates these pressures and is manifestly unfair. Although questioned by others, it is my opinion the government cannot legally interfere with a university's status as a federal contractor without first according the university a full hearing and adjudication.1 There are three thrusts to this argument: (1) due process; (2) Executive Order 11,246; and (3) the Civil Rights Act of 1964, as amended. With respect to due process, recent Supreme Court decisions have confirmed the standards and procedures which an agency or department must follow before depriving an individual person of benefits received from the government. Among such requirements are a hearing where the person who may be affected by a proposed agency action has the opportunity to confront and cross-examine adverse witnesses and to present evidence on his own behalf." Any action by HEW declaring that a university is no longer a responsible contractor, without notice and without hearing, is in my view a clear violation of due process. Any other result would be unconstitutional taking from the university since summary suspension prior to hearing is only permitted where "harm to the public is threatened and the private interests enfringed is reasonably deemed to be of less importance." Similar provisions for hearings prior to the imposition of sanctions against the contractor are provided by the Executive Order and the Equal Employment Opportunity Act of 1972. There are, however, some difficulties raised by Sec 1 Gonzalez v. Freeman, 334 F. 2d 570 (D.C. Cir., 1964), Crown Zellerbach v. Wirtz, 281 F. Supp. 337 (D.D.C., 1968). 2 Goldberg v. Kelly, 397 U.S. 254 (1970). R. A. Holman & Co. v. Securities and Exchange Commission, 299 F. 2d 127, 131 (D.C. Cir.. 1962). 4 Section 208 (b) of Executive Order No. 11246, as amended provides that: No order for debarment of any contractor from further government contracts under Section 209 (a) (6) shall be made without affording the contractor an opportunity for a hearing. In Crown Zellerbach v. Wirtz, supra note 1, the district court held that this provision prohibited the Department of Labor from interfering with the contractor's eligibility for government contracts prior to a full administrative adjudication on the merits of the contractor's compliance with the Executive Order. Section 13. P.L. 92-261, 86 Stat. 103 [42 U.S.C.A. § 2000e-17 (Supp. 1973)]. A tion 13 of the 1972 Act. It is clear that once a contractor has had its affirmative action plan approved, the contractor can be debarred from further contracts only after full administrative hearings conducted pursuant to the Administrative Procedure Act. But what are the rights of a contractor prior to the approval of its plan, and what are its rights when there are allegations of a "substantial deviation" from its approved affirmative action plan? 8 In the first situation, where there has been no approval of the plan, it appears that full administrative hearings are still required.' It does not appear from the statute's legislative history that the Crown Żellerback case was intended to be superseded in any way. Indeed, judging from the comments of Senator Ervin during the Senate debate, this provision was intended to provide the same protections as accorded the court in Crown Zellerbach. It is my opinion that when there are allegations of a "substantial deviation" from, the approved affirmative action, the contractor is entitled to some sort of pre-suspension hearing to determine whether there has been, in fact, a "substantial deviation." Under the standards established by the Supreme Court in Goldberg v. Kelly, such a hearing need not take the form of judicial or a quasi-judicial trial with a particular mode of proof. Nevertheless, a university should be provided with timely and adequate notice detailing the reasons for the proposed determination plus an opportunity to confront adverse witnesses and to present evidence on its own behalf. The agency's determination must be in writing, must give reasons and must be based on evidence produced at the hearing. Anything less would be denial of even "rudimentary due process." "1 10 Nevertheless, it has been suggested that Section 13 could be construed as authorizing the elimination of the aforementioned notice and hearing procedure with respect to a contractor whose affirmative action plan had not yet been approved. It has also been suggested that the statute authorizes elimination of such notice and hearing procedure for an employer who has submitted an approved affirmative action plan if he is being accused of having "deviated substantially" from that plan. Section 13 is especially obscure on this point. These ambiguities should be eliminated. Therefore, Section 13 should be amended to make it crystal clear that no government contract or portion thereof will be denied, withheld, terminated, suspended or interfered with by HEW or by any other agency without first having accorded the contractor the notice, hearing and adjudication provided in the Administrative Procedure Act. AGENCY INVESTIGATION-PRODUCTION OF RECORDS The opening salvo of any investigative agency involved with colleges and universities-HEW, EEOC or local commissions-is usually a demand for records which is often broad and all-encompassing. The demand is made by letter, request to produce, subpoena or, in some cases, all three. These demands are always subject to discussion and negotiation. No client of my firm has had any difficulty in a "one-on-one" relationship with a single investigator investigating a single complaint. A more difficult situation is when an institution is confronted with a group or team of investigators conducting a “pattern" inquiry or a compliance review and contracts have been held up pending the results of the inquiry. Under these circumstances, an educational institution may be compelled to fight a rear guard action against compromising its rights. Thus, the recommended revision of Section 13 of the 1972 Act so as to make it clear that the government cannot interfere with the status of any contractor without first having notice, opportunity for hearing and other due process should have the additional effect of enabling elucational institutions to deal reasonably and responsibly with demands for production of records. Disclosure of confidential employment information to federal officials involves two strong countervailing policies: the government's need to obtain this information and the University's equally strong right to protect its internal procedures and processes from unnecessary governmental intrusion. Columbia has adhered to a case-by-case approach. Since each request for information is unique, no inflexible rules can or should be adopted. U.S.C.A. § 554 et seq. (1967). 7 Such hearings would be conducted pursuant to 41 CFR Part 60-30. (1973). Supra, note 1. Cong. Rec. S. 578-580, January 26, 1972. 10 Supra, note 2. 11 Id. at 267. I have read with interest the report of the Equal Employment Opportunity Task Force of the American Council on Education dated December 18, 1973 concerning procedural deficiencies in HEW's administration of Executive Order 11,246, as amended. This document contains recommendations which should be carefully considered by the Committee, HEW and other regulatory agencies. Nevertheless, my own experience is that a clear Congressional statement on due process for contractors through a revision of Section 13 is the sole additional protection that a college or university needs in order to protect its records from undue disclosure. In summary, a relationship between a university and governmental agency, when based on mutual respect for the proper functions and needs of each, can and has worked well. Members of the university community realize that they do not enjoy legal privileges and immunities not enjoyed by other citizens. However, the government must recognize and respect the privacy of individuals which is jealously guarded by the university community. MULTIFORUM LITIGATION Problems arise when an individual or group of complainants proceeds in more than one forum or tribunal concurrently or consecutively. Such repetitious litigation imposes burdens on universities which are readily apparent. The time which concerned officials must spend preparing for an attending hearings and trials can be enormous. Attorney's fees are also increased significantly. While there are some techniques and procedures available under current law which tend to reduce these burdens, none are completely satisfactory. At Columbia, informal, inexpensive grievance procedures have worked well over the years. The University has been spared the expense of legal fees and individuals have learned that they can receive a fair and sympathetic hearing from a panel of their peers within the University. At a panel discussion before the National Association of College and University Attorneys in June 1973, an EEOC representative conceded that by and large, complainants receive more favorable results from university grievance panels than from governmental agencies. This has been my own experience. Certainly, there is little point in having universities incorporate union, faculty and staff grievances procedures into affirmative action plans if complainants are not required to resort to these remedies before going to state or federal administrative agencies. In the event a complainant should proceed before administrative agencies. minor revisions in the law could give universities meaningful relief from the burden of duplicative litigation without diminishing the rights of complainants to due process. Usually, EEOC will defer all complaints to a local 706 agency. However, EEOC can reclaim the case after 180 days. In New York, it usually takes a year for a local agency to investigate, hear and decide a particular case. Accordingly, EEOC should be required to continue its deferral beyond the 180 day period. Certainly, EEOC should be prohibited from reclaiming a case if the local agency has commenced hearings. I would also suggest that the scope of review by the federal courts be limited. Under the present law, a federal court is required to conduct a complete trial de novo even if the complainant has had a full and fair hearing in the state administrative agency." It would be more appropriate to limit the role of the federal courts to a determination as to whether the state agency has acted arbitrarily or capriciously and whether its findings are supported by substantial evidence. This approach has worked successfully in dealing with complaints of discrimination by federal civil service employees." Certainly, such limited judicial review is sufficient when the hearing was held before a local agency whose procedures and practices have been examined and approved by a federal 12 Section 706(c) of the Civil Rights Act of 1964, as amended, [42 U.S.C.A. § 2000e-5(c) (Supp. 1973)] provides that a complainant must file charges with the local FEP agency before pursuing the EEOC remedies, Love v. Pullman Co., 92 S. Ct. 616 (1972). By administrative rulings. these deferral procedures are applicable only with respect to state and local agencies which have been designated "706 Agencies" by the EEOC. 29 C.F.R. § 1601.12 (1973). See also Crosslin v. Mountain States Tel. & Tel. Co., 400 U.S. 1004 (Douglas, J. dissenting) (1971). 13 See, e.g. Voutsis v. Union Carbide Corp., 452 F. 2d 889 (2d Cir., 1971) cert. denied 406 U.S. 918 (1972). 14 Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C., 1973). Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.. 1973). Handy v. Gayler, 364 F.Supp. 676 (D.Md., 1973), Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D. Ohio, 1974), Thompson v. U.S. Dept. of Justice, 7 FEP Cases 347 (N.D. Cal. 1974). agency such as EEOC. In summary, this recommendation would extend the existing Section 706 deferral procedures to federal courts. Under present law the federal courts are authorized to stay Title VII actions while state agency proceedings are pending but only for a period not to exceed 60 days. Such a limited remedy is insufficient to protect universities from duplicative litigation and the courts are reluctant to employ it. Title VII should be amended to permit a longer stay pending completion of state administrative proceedings. This is especially appropriate if the state tribunal has been designated a 706 agency. When complainants proceed before more than one agency investigation and even conciliation becomes complicated. My experience is that one agency is reluctant to rely on another agency's investigation. I have also encountered difficulty in obtaining consents of other agencies to conciliation agreements. When one agency learns that another has already commenced an investigation it should postpone its own inquiry. Similarly, when the "lead" agency and the parties themselves have agreed on conciliation, the other agencies should be prepared to give their prompt, written consent. Such duplicate administrative process is not an imposition upon educational institutions alone. It is also a burden upon the agencies themselves and the federal courts which, as the Committee already knows, are overcrowded with litigation. CONCLUSION The issue of equal employment opportunity is one of the thorniest problems to confront universities in many years. It will also prove, I am sure, a difficult problem for this Committee. I hope that my testimony and this statement will be of some assistance. Mr. BENITEZ. Thank you very much. I have raised most of my questions during your testimony. Thank you, Mr. Stitt. Mr. STITT. I thank you. It has been a pleasure to be here. The meeting is adjourned, subject to the call of the Chair. [Whereupon, at 11:30 a.m., the subcommittee adjourned, subject to the call of the Chair.] 15 Sec. 706(f) (1), Title VII of The Civil Rights Act of 1964, as amended. |