can take into account the availability of properly qualified individuals in the various teaching fields. (There are very few highly qualified women and minority group persons in certain fields.) Furthermore, if evidence can be gathered to show that an institution is not really appointing the best available person to a vacancy, then I would agree that the appropriate agency should call that institution to task. But to threaten institutions with loss of federal funds unless certain quotas are established is, in my judgment, an outrageous example of unnecessary interference on the part of a federal bureaucracy in the life of a college or university. Some of this has already happened and threats have been made of more of this sort of thing in the future. I wish to make my position perfectly clear. I support the goals of affirmative action and feel that I have always done so. But when an agency steps in to insist that certain numbers of people who are members of certain groups must be hired, or else, then I believe it is time to protest as I have done in the past and shall continue to do in the future. I sincerely hope that as a result of your hearings, HEW will be instructed to substitute "best estimates" (of what can be accomplished) for numerical goals and that there be reaffirmation of the principle that colleges and universities must be free to appoint the best available person to each faculty position regardless of the "group" to which the individual may happen to belong. Thank you for your attention to this letter. Sincerely yours, DEWEY B. STUIT, Dean. Hon. JAMES G. O'HARA, THE UNIVERSITY OF ROCHESTER, Chairman, House Special Subcommittee on Education, Congress of the United States, House of Representatives, Washington, D.C. DEAR CONGRESSMAN O'HARA: The August 9, 1974, issue of the American Council on Education's "Higher Education and National Affairs" reported the testimony of John H. Powell, Chairman of the Equal Employment Opportunity Commission, in part as follows: "in the area of education, there is still a lot of resistance" [to ending job discrimination]. The concept that institutions of higher education are above or at least not in the same relationship to the rest of society is shared by a large segment of the population, and by most institutions of higher education as well. This view is frequently held, notwithstanding glaring realities to the contrary." If Mr. Powell has been quoted accurately by the publication, the impression I draw from his statement is that he believes that institutions of higher education consider themselves above the laws and regulations prohibiting discrimination in the services provided students and in the employment of faculty and staff. If that is the correct interpretation of Mr. Powell's testimony, I believe he has misjudged institutions of higher education in this country. My responsibility at the University of Rochester includes both serving as the institution's affirmative action officer for academic employment and supervising our office of Admissions. With regard to making educational opportunities avail able to minorities and women, the University of Rochester had undertaken substantial special efforts before the existence of Title IX. Using its own resources, the University established an educational opportunity program which not only sought to encourage applications from minorities to the University but also provided special remedial programs for students who came from disadvantaged educational backgrounds but who showed the basic abilities and motivation to benefit from the high equality education available at the University of Rochester. In the area of affirmative action, the University of Rochester promptly met its obligations to develop an affirmative action program and to carry out that program vigorously. Our difficulty with the government agencies responsible for administering that program resulted not from any lack of enthusiastic support on our part for its objectives, but rather from our inability to convey to governmental agencies the special aspects of recruiting faculty in a research university. The scarcity of minorities who have qualifications for appointments in research universities, the high degree of specialization in appointments to faculties, and the great amount of decentralization in recruitment and appointment decisions are factors which differentiate the recruitment of faculties in research universities from recruitment of employees in a typical industrial firm. The govern mental agency with which we had experience in. reviewing affirmative action programs has had difficulty in adapting its administration of the program to these differences. It has also been difficult to convince the agency of the importance of a salary policy based on merit rather than a fixed rate structure. I want to assure your Subcommittee that the University of Rochester heartily subscribes to the goal of equal opportunity both in education and employment. The excellence of a university depends centrally upon the excellence of its faculty and supporting staff. That excellence cannot be achieved if we deny ourselves access to outstanding people because of race, religion, or sex. Moreover, the central goal of a university is the greatest possible development of the individual. An institution which so concentrates on individual achievement can hardly subscribe to discrimination based on group stereotypes. Sincerely yours, ROBERT R. FRANCE. Hon. MARIO BIAGGI, House Office Building, STATE UNIVERSITY OF NEW YORK AT ALBANY, DEAR CONGRESSMAN BIAGGI: I was pleased to learn of your concern about the manner in which anti-discrimination laws are being enforced by Federal agencies in dealing with colleges and universities. Despite claims to the contrary by HEW, the Department of Labor and the Equal Employment Opportunity Commission, the haste with which a zealous group of people acted in this area is deplorable. Having been associated with civil rights and equal opportunity efforts for many years, I regret the creation of a needless backlash by well intentioned Federal efforts. The lack of professionalism, and elementary common sense we have encountered is amazing. Contradictory rulings, barely veiled threats and the like have given ammunition to those opposed to affirmative action, and turned off some of its most ardent supporters. All of this could have been avoided had the zealots been controlled and top administrators taken the trouble to inform themselves about the somewhat special problems of universities and colleges. As a group, we did not seek special treatment but did ask for recognition of special problems. The unions had special problems, so did industries, so our need was not unique. Instead we got harassment with predictable results. Mr. John Powell of EEOC testified recently about the large number of charges of discrimination filed against universities. Considering the kinds of evidence Federal agencies accept as supporting such charges, I would expect everyone with any kind of real or imagined grievance to take advantage of a priceless opportunity to create trouble. We stand guilty before a hearing and often are forced to compromise to avoid the threat of worse harm. I hope that you will continue your efforts to bring some sense into this field. Some universities probably are guilty of discrimination, more may have failed to recognize bias in some of their procedures. Those situations should be remedied following due process in an atmosphere free of intimidation. As citizens, certainly we who happen to have jobs in universities are entitled to no less. Sincerely, CHARLES T. O'REILLY. UNIVERSITY OF CALIFORNIA, DAVIS, Representative JAMES G. O'HARA, Washington, D.C. REPRESENTATIVE O'HARA: I am writing to you in response to an article on page 8 of the August 19 issue of the Chronicle of Higher Education. I was particularly concerned about your statement that reverse discrimination is no more defensible than "old-fashioned, straight-forward discrimination." The whole theory of affirmative action is to give preference to women and minorities to overcome the detrimental effects of past discrimination. That is, affirmative action is the practice of reverse discrimination. It is very different from "old-fashioned" discrimination, particularly in the following respects. First, it is temporary, to be applied only until the effects of past discrimination are overcome. Second, it is deliberate, following well constructed guidelines to achieve specific and clearly stated goals. And third, it is accomplished with reason, with care to avoid lowering of standards or diminution of quality. In fact, "old-fashioned" discrimination and the type that is necessary to achieve affirmative action have very little in common. Reverse discrimination is not built on predjudice, is not emotionally rooted, is not going to adversely effect a whole segment of a population. As chairman of the House Special Subcommittee on Education it is terribly important that you understand these distinctions. I hope that the quote which appeared in the Chronicle was indeed misleading. I applaud your efforts to define the affirmative action guidelines more precisely, and dearly hope that you will succeed in fending off the watering-down pressures which no doubt confront you. The sooner we accomplish the goals of affirmative action, the sooner we can dispense with the plans. If I can be of any assistance, please do not hesitate to call on me. I will be in Washington on September 3. Should further discussion seem fruitful, please contact my secretary, Lee Saucerman, at 916-752-6050 to make arrangements. Yours truly, KATHLEEN M. FISHER, Director, Teaching Resources Center. SEPTEMBER 10, 1974.. KATHLEEN M. FISHER, Director, Teaching Resources Center, DEAR MS. FISHER: Thank you for your thoughtful letter of August 26. You' have taken the time to set down your views in some detail, and I hope you won't mind if I do the same. The quotation from the Chronicle which you repeat in your letter was quite accurate. My hearings, as you note in your letter, are intended to define affirmative action and other obligations of institutions of postsecondary education, and I am willing to wait until all the testimony is in, and all the arguments have been set forth before I come to the conclusion that affirmative action as it is. practiced in higher education either is or is not correctly described as "reverse discrimination". But if it is, and your letter starts from the proposition that it is, then I don't see how it can be distinguished, morally or legally from the kind of discrimination that has kept women and members of minority groups out of university employment. I won't take issue with your assertions that reverse discrimination is temporary, deliberate, or undertaken for a purpose. If a thing is wrong, none of those qualities seems to me to exculpate it. I think the real root of our disagreement appears when you defend reverse discrimination on the grounds that it will not "adversely affect a whole segment of a population." The reason I have supported civil rights legislation throughout my public life and earlier is because I have always believed, and I believe to this day, that there are no such things as group rights. You have no rights stemming from the fact that you are a woman. I have none stemming from the fact that I am a man. Neither of us has any rights arising out of our race or religion. You and I have individual rights, because we are human beings. We have a right to be considered, as individuals, on our individual merits, for a job or for admission to a school or for whatever. It is only as individuals that we have rights, only as individuals that our rights can be violated, and only as individuals that they can be protected. The fact that a practice does or doesn't adversely affect a whole segment of the population seems to me to be a monumental irrelevancy. Does it affect Kathleen Fisher? Does it affect Jim O'Hara? That is the whole question,. in my mind. Maybe I am hopelessly out of date. Maybe we are in an era when people are first of all members of a group, first of all men or women, first of all whites or blacks or chicanos, or whatever, and that it is from that identity that their rights and responsibilities will stem. If that is where we are headed, then I am afraid that the cause I have fought for-the cause of human equality, without regard to race, sex, ethnic origin or religion, has lost a major battle. Very truly yours, JAMES G. O'HARA, Chairman. UNIVERSITY OF CALIFORNIA, DAVIS, Representative JAMES G. O'HARA, U.S. Congress, Washington, D.C. HON. REPRESENTATIVE O'HARA: I appreciate your thoughtful reply of September 10th. I am reassured that we are in one hundred percent agreement that the basic struggle is for human rights and human equality. I think that we are also in agreement that the basic problem is how to achieve equal opportunity for all persons. The philosophy that underlies affirmative action is the following. Even if we could eliminate all prejudice and discrimination immediately, there would be a strong tendency for the status quo to be maintained by lack of inertia for change. The present racial and sex imbalances in employment and in our schools would for the most part persist. Realistically, of course, we can not eliminate all discrimination and all prejudice immediately, but through a process of deliberate preferential treatment of women and ethnic minorities, we can increase the proportion of such people in many areas of human endeavor. By such positive pressures, we will gradually achieve a state of equal opportunities for all persons, a reduction in prejudice, and we will provide necessary and important role models for younger people. Perhaps you. Congressman O'Hara, can think of a better means to achieve these goals which we both desire? But so far I have not succeeded in thinking of a better method than affirmative action, nor have I seen one proposed by others. The footdragging and empty rhetoric that characterizes current HEW efforts is appalling. Hopefully, your committee will find some means to improve the situation. Yours truly, KATHLEEN M. FISHER, Director, Teaching Resources Center, [From Change, June 1974] THE FUTURE OF ANTIDISCRIMINATION ENFORCEMENT (By George R. LaNoue) In higher education and elsewhere, the federal government has become the major enforcer of a wide range of antidiscrimination legislation, the scope and extent of which are only now beginning to be widely recognized. Federal agencies are spending over $100 million to make these laws stick and to create new antidiscrimination programs. But the effectiveness of these programs in higher education must be questioned. The magnitude of the problem has led to the creation of so many enforcement mechanisms that public policy and procedures have become badly tangled. Aggrieved individuals find their cases delayed or lost in the bureaucratic maze and the accused employers often wait months for a chance to have the issue resolved. The problem exists in all sectors of society, but it is particularly acute in higher education with its complex personnel decisions. There are now seven major avenues for someone wishing to press a charge against a college or university: (1) the Wage and Hour Division of the Department of Labor, (2) the Office of Civil Rights of the Department of Health, Education and Welfare, (3) the U.S. Equal Employment Opportunity Commission, (4) state and local fair employment commissions, (5) the federal courts, (6) the American Association of University Professors, and (7) local campus grievance procedures. Each of these avenues has certain advantages as wel as liabilities as a mechanism for resolving discrimination complaints. In my judgment, action by federal agencies will have substantially eliminated most types of systemic discrimination in higher education within the next three years. Antinepotism rules, restrictive maternity policies, exclusive old boy recruiting networks, and wage -discrimination will largely disappear from all major academic institutions. INDIVIDUAL CASES Less institutionalized forms of discrimination, however, will be harder to root -out. The academic professional employment process is so decentralized that it is quite possible to have some discriminatory and some nondiscriminatory departments within the same institution. Appropriate evaluations of academic performance are often quite difficult to make even where sex and race are not involved. Honest disagreements are commonplace, particularly if individual merit is taken seriously in the institutional reward system. Within a few years, the preponderance of cases will concern individuals who allege discrimination in their failure to be promoted or granted tenure, and colleagues or administrators who argue that they are incompetent or lack professional distinction. These charges wil increase dramatically. Job alternatives in today's academic market, after all, are poor, and there is very little lose by not bringing a charge. Which agencies are the most appropriate to hear such cases? If the issue is salary discrimination against women, currently the most endemic problem in higher education, it seems likely that the issue can be resolved with some dispatch by the Wage and Hour Division of the Department of Labor. Although some complex policy questions remain (i.e., to what extent may an institution reflect differences in market supply and demand in its salary structure if that has an adverse effect on women-for example, paying scientists more than language teachers), previous interpretations of the Equal Pay Act will cover most abuses. Wage and Hour can go to court if necessary to enforce its findings, but compliance usually precedes that step. The Equal Pay Act, however, applies only to salary and fringe benefit issues and only to sex discrimination. In the long run most collegiate problems wil range beyond the coverage of the Equal Pay Act. Most attention in higher education has focused on the Office of Civil Rights (OCR)-HEW, under the authority of Executive Order 11246. That document gives HEW the power to require any university with a federal contract to employ on a nondiscriminatory basis and to institute an affirmative action plan. The sanction for failure is delay and eventual loss of federal contracts. There has been in its administration considerable confusion of policy and some serious difficulties. In fact, no contracts have been finally terminated though several have been delayed. Where an institution has engaged in systematic discrimination, contract penalties may be an appropriate sanction. But where the issue involves a single individual's tenure or promotion, the contract sanction is probably improper and unworkable. Using a cutoff of federal contract funds to a whole institution because of a disagreement about an individual grievance is like arming a police force with nuclear weapons. In punishing the guilty so many innocents would be harmed that the weapon cannot in fact be used. That is one of the reasons why OCR agreed in the fall of 1972 to turn all individual complaints over to the Equal Employment Opportunity Commission (EEOC). EEOC enjoys a number of advantages in handling this kind of complaint. Its staff is larger. As an independent commission it is not so subject to political considerations and, unlike HEW, it has no educational programs of its own. Furthermore, the EEOC's sanction is litigation, not contract cutoffs. Litigation in this sense is more surgical. It can focus on the precise issue of discrimination and can create flexible remedies. EEOC, however, currently suffers from a backlog of 85,000 cases (about 1,500 in higher education.) Despite the fact that it has doubled its budget in the past three years and has made many administrative improvements, some of its own planners predict a lacklog of 250,000 cases by the end of this decade. It should not come as surprise, then, that it takes an average of 32 months to settle a case. Since most higher education grievance cases are unique and complex, investigations tend to be especially time-consuming. Furthermore, the commission will soon be following a track system policy. Cases assigned to the first track-national employers with a large number of employees-will receive priority. Although EEOC will take some higher education cases to establish internal policies and judicial precedents, most academic grievances cases will not be on its priority track. In short, EEOC and the other federal agencies will play an important role in setting policy, defining employment discrimination and in eliminating systemic problems, but it is too much to ask them to settle all of the future campus personnel conflicts where discrimination is alleged. It is not only logistically impossible but ultimately inconsistent with the interests of acadamic freedom to have federal authorities play that role. State and local agencies are not going to be so much help, either. Although they vary in quality, the nonfederal agencies combating discrimination do not enjoy a particularly distinguished record of effectiveness, and the risk of political manipulation of campus grievances is even greater than at the federal level. |