administrative staff. Objectives included in the Affirmative Action plans should correct this deficiency. Where Civil Service examinations are required to qualify for positions, we will coordinate with Central Office of State University and the State Civil Service Commission in correcting these deficiencies. I have asked John W. Hartley, Vice President for Management and Planning, to answer any questions or provide additional information related to this matter, if required. Vice President Hartley may be contacted by phone. His number is (518) 457-4944. Sincerely, LOUIS T. BENEZET. Hon. Louis T. BENEZET, ANTI-DEFAMATION LEAGUE OF B'NAI B'rith, President, State University of New York at Albany, DEAR DR. BENEZET: On January 6, 1972, Prof. Malcolm J. Sherman wrote to us, as he did to you, in connection with the implementation by the State University of New York at Albany (SUNYA) of its Affirmative Action Program in behalf of minorities. Subsequently we received from Mr. Leon Calhoun, to whom you referred the matter, a copy of his memorandum of January 19, addressed to Professor Sherman, severely criticizing Professor Sherman's action in writing to us and disagreeing with Professor Sherman's point of view. We believe Professor Sherman's position to be sound. Let us spell out why: The Anti-Defamation League's very reason for being is its opposition to all forms of racial and religious discrimination against either groups or specific individuals. The ADL views such discrimination as an unconscionable violation of the moral and constitutional principles upon which American democracy stands and thrives. The ADL's policy, therefore, has always been to oppose firmly quotas or other limitations based on race, creed, or color, and to support and demand practices in employment or in school admissions based solely on individual merit. We believe that our position supports the only final guarantees against discrimination and injustice toward minorities. In our view, nothing can justify-let alone initiate-injustice against an individual or against a group because of skin color or other ethnic factors. "Preferential treatment" and racial quotas in behalf of minorities impose one form of racial discrimination in place of another. Like classic bias, it is the deliberate preference for an individual of one race, and solely because of his race, over an individual of another race, even in cases where the latter individual is better qualified in all other respects. There is no question that Blacks have been greatly disadvantaged in the past due to a long and historical application of such bias and its continuing aftereffects. But past discrimination does not justify, as an attempted remedial measure, a new and equally deliberate and arbitrary discrimination against others. The questions that must be asked in this regard are: Is a white person to sacrifice his personal right to be judged on his own merit by accepting discrimination against himself based solely on the color of his skin? By what logic does some alleged "higher justice" legitimize such an injustice against an individual who has no personal responsibility for historic wrongs? And especially how does this apply at a university in a situation where there is no evidence that there has been any deliberate practice of anti-minority discrimination? Because society in general bears the responsibility for such wrongs, society rightfully must, and indeed has begun to, undertake the job of righting them. This is the developing social philosophy behind "affirmative action" programs designed to secure better employment and educational opportunities for Blacks. But the aim of affirmative action should be broad social progress as regards racial equality, not the assignment of the historical blame upon, and then the penalizing of, single present individuals who happen to have white skin. Here we must bear in mind that discrimination, looked at either legalistically or in terms of concrete everyday results, is always perpetrated against an individual, not against a broad and nameless mass. The right to be free from discrimination is an individual right, as the U.S. Supreme Court has consistently held, and it should not be abridged or modified on the basis of the indiviual's race or the history of his race. "Justice" for a group is utterly meaningless if it requires injustice toward individuals. This concept lies at the core of American and democratic values. The reference by Mr. Calhoun to a U.S. Supreme Court decision that allegedly held constitutional an interpretation of affirmative action as including preferential treatment and racial quotas, is erroneous. The issue before the Circuit Court of Appeals in that case [Contractors Assn. of Eastern Pa. v. Secy. of Labor, 442 F.2d 159 (3d Cir. 1971), cert. denied, 92 S.Ct. 98 (1971)] is not the question before us in the SUNYA situation. Further, the Supreme Court in that case made no decision except to deny the application for review. Time and again the U.S. Supreme Court has said that in denying a writ of certiorari, it takes no position on the merits of the case. If, indeed, one wants to know the law of our land as laid down by the U.S. Supreme Court on racial quotas, the landmark case is Hughes v. Superior Court of California, 339 U.S. 460 (1950) in which the Supreme Court clearly held that racial quotas in employment are unconstitutional. In that case the Progressive Citizens of America picketed a grocery store in support of its demands that, as white clerks quit or were transferred, the store hire Negroes until the proportion of Negro clerks to white clerks approximated the proportion of Negro to white customers. The Supreme Court upheld the injunction against the picketing granted by the lower court. Mr. Justice Frankfurter, writing for the majority, stated that the picketing. if permitted, would "give constitutional protection to petitioners' efforts to subject the opportunity of getting a job to a quota system." Now to the matter at hand: In a memorandum over your signature, dated September 28, 1971, addressed to vice-presidents, deans and directors, you concerned yourself with the goals of the State University's Affirmative Action Program. In it you stated that one way of achieving these goals would be for the recipients of the memorandum to anticipate vacancies over a five-year period and indicate how many of them "could feasibly be allocated to minority members". Asking for numbers is a clear request for a quota in behalf of minority applicants. We think such a quota is in violation of the 14th Amendment, in violation of New York State's Constitution, of its laws, regulations and judicial decisions. We also believe such racial quotas to be inimical to the public weal, violative of the democratic concept and destructive of the right of individual merit. Instead of assuring equality of opportunity, you are engaging in a program of unequal opportunity. We have before us, in contrast to your suggested quotas approach, the implementation of an Affirmative Action Program by Chancellor Robert J. Kibbee of the City University of New York. It is in the form of a December 10, 1971 memorandum to CUNY's administrative staff, expressly written to allay possible misunderstanding regarding the correct method in which the CUNY Affirmative Action Program is to be implemented. In so many words, the memorandum warns against erroneously interpreting policy as favoring the establishment of an "employment quota system based upon race, religion, gender or ethnic origin." Chancellor Kibbee expressly adds that in meeting the criteria of the Presidential Executive Order, no interpretation is to be placed upon it that the Program or its implementation "require preferential treatment in recruitment, hiring or promotion on the basis of criteria other than merit. It is our overall personnel policy, of which affirmative action is an important component, that the choice among candidates for hiring or promotion is to be that candidate demonstrating the maximum potential for meeting the job's requirements." Anther document, dated August 10, 1971, from your State University (SUNYA). made available to us by Professor Sherman, is entitled, "Affirmative Action Program for Equal Employment Opportunity." On page 3 of this memorandum, it is indicated that "the University will defer the filling of some positions until qualified minority members and women are added to the staff of the University." In our view this instruction is similarly a violation of law, in that it virtually forces administrators to choose between hiring on racial or ethnic grounds or having essential jobs go unfilled. A third instance of violation is the requirement in B-2b of the policy statement on this subject issued on August 31, 1971, by SUNYA. It calls for the "adoption of a deliberate posture of actively seeking . . . qualified or qualifiable persons of minority status . . . who are presently under-represented . . ." By itself, this instruction is thoroughly proper, but against the background of the other directives emanating from SUNYA, it must be read as requiring preferential treatment instead of individual merit, as required by the laws of our land. Under the merit system, only the best qualified person-not any qualified personmay be appointed. Furthermore, for a college to hire a merely "qualifiable" person to be a professor or administrator, would be a debasement of educational standards. Confirming this improper implementation of your Affirmative Action Program, is the fourth instance before us, i.c., a September 3, 1971, memorandum from Clifton Thorne, Vice-President for Student Affairs, directed to the University's Directors of Student Affairs Functions. It contains a directive that "to overcome present under-utilization of minorities, temporary preference in the hiring of new personnel must be given to members of minority groups with particular emphasis on the appointment of Blacks, Puerto Ricans and Indians, as well as to women." As if the nail down the absolute illegality of the instruction, Mr. Thorne goes on to say, "as a guideline, I would urge that no fewer than one of every three new and vacant positions be filled with minority members . . . ." To eliminate any doubt whatever that this illegal instruction is authorized, the memorandum bears the University's imprimatur “APPROVED BY THE OFFICE OF EQUAL EMPLOYMENT OPPORTUNITY." At the risk of repetition, we emphasize our view that this latter instruction in the Thorne memorandum, and the University's approval of it, are in clear violation of the Federal and New York law, as well as SUNYA's own policy statement respecting its Equal Employment Opportunity Program. Specifically, in New York State, and that is what we are here dealing with, there is an explicit statute prohibiting discrimination in employment on account of race, creed or national origin. N.Y. Executive Law, sec. 296, subd. 1(a). To say it another way, the thrust of all three mandates is expressed in the prohibition set forth in SUNYA's own policy statement--a mandate against "discrimination in employment because of race, color, religion, sex or national origin”. A fifth document in our hands, the Agenda for a January 31, 1972 meeting of the SUNYA University Senate, contains the report given by Dr. Philip Sirotkin, SUNYA's Vice President for Academic Affairs to a December 16, 1971 meeting of the SUNYA Council on Educational Policy. In his report Dr. Sirotkin states that 10 of the 86 faculty vacancies expected by September 1972 "were specifically earmarked for the appointment of women and minorities." We regard this commitment as a further blatant example of an illegal quota. Finally, there is at hand a press clipping which, if accurate, is additional evidence of violation of law by SUNYA. It is a December 3, 1971, clipping from page 16 of the Albany Student Press reporting that "John Hartley, Vice President for Management and Planning, has announced a policy of one-to-one hiring of minorities affecting all of the administrative staff. This means that for every white (non-minority member) hired, a minority member is hired." This news story is still another clear indication of the imposition of an illegal quota in behalf of minority group people. Presidential Executive Order 11246, as amended, and the official guidelines of the U.S. Department of Labor's Office of Federal Contract Compliance (which are binding on HEW and all other Federal agencies, as well as on all Federal contractors) are, of course, the source of SUNYA's obligation to promulgate an Affirmative Action Program in the first place. The detailed rules of the guidelines are directly relevant on this matter. The specifically warn that "goals may not be rigid and inflexible quotas that must be met". The same guidelines state that goals are "not intended and should not be used to discriminate against any applicant or employee beacuse of race, color, religion, sex, or national origin". Distorting the Affirmative Action Program into a program of racial quotas or racial preferential treatment, is a clear violation of these guidelines. For the foregoing reasons, the Anti-Defamation League of B'nai B'rith vigorously protests the distortion of the Affirmative Action concept at SUNYA. In conclusion, let us reiterate that the Anti-Defamation League has always fougth for equal opportunity in employment, and other areas. We have always fought quota systems restricting equality of opportunity for any group. We strongly support both the merit system and affirmative action programs. We oppose the distortion of affirmative action programs into programs of preferential treatment of one person or group over another person or group on account of race or creed-as destructive of equal opportunity and violative of the Constitution and Federal and State laws. We deeply believe that affirmative action programs designed to achieve equality of opportunity for minority groups can be effectively implemented without violating the fundamental laws of our nation. May we ask your response. Sincerely, 43-979-75-pt. 2B- -34 SEYMOUR GRAUBARD, National Chairman. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Dr. Louis T. BENEZET, OFFICE OF THE SECRETARY. Washington, D.C., December 14, 1972. President, State University of New York at Albany, DEAR DR. BENEZET: As you may know, the Anti-Defamation League of B'nai B'rith, on behalf of itself and five other national Jewish organizations, has filed with this Department allegations of abuses in faculty and administrative employment by a number of colleges and universities, among them State University of New York at Albany. These organizations are concerned that, in an effort to meet your affirmative action commitment to expand employment opportunities for women and minorities, you have possibly engaged in discrimination against white male applicants on account of their race or sex. I am enclosing a copy of the allegation lodged against your institution. I would appreciate receiving from you a response to the allegation contained in the enclosure so that we might be able to determine whether further investigation is necessary. While it is our purpose to ensure equal opportunity in employment, we are concerned that well-intent affirmative action efforts not be implemented in such a way as to promote or result in any form of discrimination prohibited by law. Specifically, I would like to call your attention to the first paragraph, page eight, of the enclosed Higher Education Guidelines for Executive Order 1246, which states: In the area of academic appointments, a non-discriminatory selection process does not mean that an institution should indulge in "reverse discrimination" or "preferential treatment" which leads to the selection of unqualified persons over qualified ones. Indeed, to take such action on grounds of race, ethnicity, sex or religion constitutes discrimination in violation of the Executive Order. I trust that your response will help to clarify this matter. Thank you for your cooperation. If I may be of assistance to you in expediting a response, please do not hesitate to contact this Office. Sincerely yours, J. STANLEY POTTINGER, Director, Office for Civil Rights. STATE UNIVERSITY OF NEW YORK AT ALBANY, December 28, 1972. Mr. J. STANLEY POTTINGER, Department of Health, Education, and Welfare, DEAR MR. POTTINGER: Your letter about the Anti-Defamation League of B'nai B'rith's complaints of abuse in faculty and administrative employment has been referred to me for reply by President Benezet. We have written both the Anti-Defamation League and the American Jewish Congress and have met personally with the ADL to explain the Affirmative Action Program of this University and to attempt to convince them that our plan is not discriminatory. I have enclosed copies of our letters to these organizations. Following our face-to-face meeting with the Anti-Defamation League of B'nai B'rith earlier this year, we reviewed the language of our plan and issued a "Statement on Affirmative Action at State University of New York at Albany" (also enclosed) to clarify those parts of the program which might be misinterpreted. This statement was reviewed and presented to the University Senate by its Council on Educational Policy. The University Senate of this campus adopted this statement as Bill Number 197172-42. We think that this statement addresses itself to the alleged discrimination charges. We have also formally explained to Mr. Seymour Graubard of the AntiDefamation League of B'nai B'rith and more recently to Mr. Martin Hochbaum if the American Jewish Congress that the Affirmative Action Program of the University is designed only to overcome the past pattern of discrimina tion against women and minorities and to increase the pool of qualified persons available for employment consideration. The employment selection process of this University campus is based on suitable qualifications as determined by the professional standards established by faculty, staff, and the New York State Civil Service, We do not believe that "reverse discrimination" is an acceptable course of action to achieve our goal of increased employment and educational opportunity for minorities and women. We believe we have assured the campus: community of this principle. We are presently planning to rewrite our Affirmative Action Program to comply with the format soon to be issued by the Central Administration of the State University of New York. This will result in a change of the present language. There will be no change in the principles or objectives of the plan.. Copies of the revised version will be made available to ADL, the American Jewish Congress and any other organization that would like to have one. A review of the recent hiring statistics complied since our Affirmative Action Program has been in effect does not reflect reverse discrimination as alleged but shows a successful trend toward overcoming the present "under-utilization" of women and minorities. I hope that this response answers your questions. If it does not or if there are other questions, please get in touch with me. Sincerely, Mr. J. STANLEY POTTINGER, JOHN W. HARTLEY, Vice President for Management and Planning. JANUARY 2, 1973. Director, Office for Civil Rights, Department of Health, Education, and Welfare, Washington, D.C. DEAR MR. POTTINGER: Vice President John Hartley's December 28 analysis of our Affirmative Action Program expresses our position accurately. As you know, the principal difficulty remains to locate sufficient qualified candidates who are women or minority people. From many years in this business, I feel safe in predicting that it will be a long time before there will be a market situation which could even permit "reverse discrimination" if an institution wanted to practice it-and I assure you we don't. Sincerely yours, LOUIS T. BENEZET. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Mr. JOHN W. HARTLEY, Vice President for Management and Planning, State University of New York, Albany, N.Y. DEAR MR. HARTLEY: Mr. Pottinger has asked that I thank you for your recent response to his December 14 inquiry concerning an allegation of discrimination in employment procedures lodged against the State University of New York, Albany, by the Anti-Defamation League of B'nai B'rith. |