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Answer. No. The essential difference is that under a quota system a fixed number or percentage of minorities or females is imposed upon the employer who has an absolute obligation to meet that fixed number. No excuses are accepted, nor can failure to meet the quota be justified.

Goals and timetables, by contrast, are result-oriented procedures by which the employer-subject only to the requirement that the targeted results are as much as reasonably can be expected-determines goals and a time schedule for correcting minority underutilization, and then makes every good-faith effort to achieve the self-imposed goals. Contrary to what would be true in the case of quotas, failure to meet goals and timetables is excused if the employer can show that good-faith efforts have really been made. However, an employer must be prepared to demonstrate in detail why good-faith efforts failed to produce desired results.

In a sense goals and timetables represent a shifting of the burden of proof. from the government to the employer on the question of whether or not the employer used good-faith efforts to hire more minority individuals and women. Question 2. Why are goals and timetables necessary?

Answer. The necessity for goals and timetables arose out of long and painful experience in which lip service to equal employment opportunity was paid by employers who then did little to correct the situation. It also arose out of the realization that procedures for assuring equal employment opportunity can accomplish little unless they are tied closely to results.

After generations of intentional and systematic discrimination against minorities and women, the pattern of unequal employment opportunity persists. Although intentional discriminatory practices are now illegal, many systemic practices still exist that limit the opportunities available to minorities and women. Patterns of employment have become firmly established creating many positions that minorities and women no longer even try to fill. Accordingly, if they are truly to get a fair deal in the job market, there is a compelling need for an effective program of affirmative action assuring women and minorities that meaningful equal employment opportunity—not mere tokenism—is what they can reasonably expect. To achieve such assurance employers must affirmatively seek out minorities and women and place them in jobs for which they are qualified but from which they have long been excluded. To bring about such affirmative action is precisely what goals and timetables are intended to do. Question 3. Do not goals and timetables result in hiring on the basis of race or sex, rather than on the basis of who is best qualified for the job, thereby undermining the merit system?

Answer. No. There is a myth abroad that, in years past, hiring decisions always were made on the basis of objective and proven methods for assessing applicants' "qualifications." In fact, the hiring decisions of many if not most, employers were based in large measure on subjective and unproven criteria. As a result, racial and sexist stereotypes operated to exclude women and minorities without regard for their actual qualifications. Indeed, such criteria in some degree were institutionalized within the "merit system" itself. For example, under the well established "rule of three," public employers have been free to use subjective and unsubstantiated criteria in selecting among the top three candidates for a post. Following the principle of the Griggs case (discussed above). therefore, a major affirmative action step to be taken in achieving minority employment goals is to assure that job qualifications are accurately appraised. Thus, if a hiring standard disproportionately excludes women or minorities, the employer can use that standard only if such standard demonstrably assesses qualifications for the job. This does not weaken, but rather strengthens, the role of applicant "qualifications" in determining employee selection.

Question 4. Do not affirmative action plans establish preferential treatment for minority groups and women?

Answer. No. On the contrary their purpose is to undo a preferential system many years in the making and to redress the historic imbalances now favoring white males in the job market.

Redressing this imbalance requires that discriminatory patterns be eradicated and some measure of equity be established for persons who have been discriminatorily excluded in the past. Implementation of affirmative action plans must, therefore, necessarily involve a selection process aimed at achieving these goals.

For the purpose of remedying discriminatory practices, a selection process designed to achieve such goals is a valid technique so long as it does not produce a pattern of discrimination against qualified members of another group. The fact

is that very few persons are ever hired on a totally objective basis. Even the Civil Service Merit system rarely requires the selection of a specific person from among a group of qualified applicants. The requirement is that from among such a group a person be selected. Obviously many subjective elements then enter into the selection process. The candidates personality, disposition, experience, apparent judgment, are just a few of the elements that always influence a selection. Unfortunately, a significant reason for the paucity of minority group persons and women in many job categories is that these subjective factors never included providing a fair share of employment opportunities to them.

An affirmative action plan must require some action that has not heretofore taken place otherwise it is useless. One of the requirements therefore is that in the subjective evaluations that always occurs in the selection process one factor previously excluded should now be included-a concern that a reasonable number of qualified minorities and women be hired until equity is attained.

Question 5. Are goals and timetables aimed at achieving proportional representation of minorities and women?

Answer. The concept of goals and timetables is not synonymous with proportional representation. Rather, the concept comes into play when it has been determined that women or minorities are underutilized or underrepresented in one or more job classifications. When underutilization has been established, affirmative action programs (as already described) are employed to bring minorities and women into the labor force in the numbers that "would reasonably be expected by their availability." Goals and timetables may be viewed as the measure or yardstick to determine whether the affirmative action programs are, in fact, achieving the goals of increasing the number of women and minorities in the labor force.

The concept of goals and timetables often conjures up an image of some precise mathematical division of a pie whereby each group or subgroup gets a share dependent upon the size of the group. But the concept in no way depends upon a precise mathematical formula. Rather, it focuses on the demonstrable results of past discrimination (the underutilization) and seeks to remedy that by compensatory programs (affirmative action). The "goal" that we refer to is nothing more than a description of what the labor force would look like absent the effects of illegal racial or sexual discrimination, and the "timetable" is the informed estimate of time needed to achieve the discrimination-free labor force without disrupting the industry or denying anyone the opportunity for employment.

PART IV

The moral and ethical imperatives of affirmative action in employment should need no further expansion. This need, we trust, was accepted by the American public long ago. This Commission, however, is concerned that in the current economic situation effective implementation of affirmative action will require greater not less-commitment to the goal of equal opportunity in employment. And, with the unemployment of minorities twice as high as that of whites, with underemployment showing an even greater gap, the Commission feels the necessity to again call to the attention of the American public its obligations to create an equitable society for all.

Equity cannot be obtained without the application of effort and, in some cases, unusual measures. The measures now enacted into law or issued as Executive orders are not so unusual either in substance or in general practice as to evoke resistance on the part of Americans to adhere to them. This is as true in the employment of persons to serve in the Federal Government as it is private employment. In fact, it is incumbent on the Federal Government to establish the pattern and set the pace. We believe that where quotas as defined in this statement have been established without a judicial finding of discrimination such practices should cease. Goals and timetables, as defined in this statement are. we believe, fair and equitable. They represent the minimum measures necessary to assure that all Americans can be assured of equal treatment under the law. It is not complimentary of the American society to find it necessary to require any action designed to provide all citizens an equal opportunity to use their energies and their talents.

Unfortunately, in the immediate future the test of our commitment to the principles upon which the Nation stands may be less related to our willingness to voluntarily do what is right than to our acquiescence in following the law as it is written.

[From the Spokeswoman, Aug. 15, 1974]

AFFIRMATIVE INACTION ON CAMPUS: WILL THE REAL VICTIMS PLEASE STAND UP? University faculties sinking into mediocrity; women and blacks paid higher starting salaries than well-qualified white males; institutions forced to play "musical chairs," pirating token minority appointees from one another to stay in compliance: these are some of the dangerous side effects of affirmative action on campus according to a report by Dr. Richard A. Lester published June 28, 1974 under the auspices of the Carnegie Commission on Higher Education. Lester studied the implemenation of affirmative action programs over a five-year period at twenty leading institutions with large federal contracts. He concluded that affirmative action is “a statistical system that deals more with the hiring of typists, bricklayers and punch press operators." Carnegie Commission chairman Clark Kerr, in a peface to the report, agreed that federal guidelines fail to take into consideration the inadequate supply of qualified people in seeking to impose "numerical hiring goals that often have little relevance to the character and mission of the universities."

Resistance to HEW's demands for compliance with equal employment guidelines began with the first complaints filed in 1971. Universities have often seen themselves as privileged systems in which general economic and political laws do not hold, and have based their resistance on this view. That Dr. Lester's "new" findings echo the old academic fears is shown in Gertrude Ezorsky's May. 1974 article in The New York Review of Books, "The Fight Against University Women." Hiring goals, the heart of affirmative action, are seen as a direct threat to the merit system that is supposed to operate in the universities. Merit, determined by standards best understood by the departments concerned, is no respecter of race or sex, and should therefore suffice to insure equal treatment of applicants. In fact, say Ezorsky and others, department chairmen typically ask old professors to recommend candidates; unsolicited applications fare badly under this "old boy" system. The claim that there aren't enough qualified applicants is also untrue. Ezorsky admits relevant differences in the position of women among other underutilized groups: less that 1% of Ph. D.s are black, and there is correspondingly strong competition for black candidates. But in 1972 one in eight Ph. D.s was a woman, while women were only one in fifty full professors at major universities. In 1968, 26% of Ph. D.s awarded in psychology at major institutions went to women, as well as 20% in zoology, 21% in biochemistry, 13% in history and 11% in philiosophy. In 1968-69 Berkeley had 162 men filling 163 positions in these disciplines. In 1960, Harvard awarded 10% of Ph. D. in arts and sciences to women, and in 1969 19%. Of 484 senior Harvard faculty members in 1969-70, 483 were men. There are plenty of women Ph. D.s from high-prestige institutions. Unless these universities believe the degrees they give are worthless, they can only explain the under-utilization of women by saying that 1) women don't want to teach after they get the degrees or 2) that family pressures reduce ambition and output and thus justify low salaries and slow promotion rates. Ezorsky calls the rationalization of "family responsibilities" one of the most pervasive and pernicious, and gives it a name of its own: "famrat." Famrat doesn't stand up to the facts, however: 90% of women Ph. D.s are employed, primarily in lower-ranking universities and at lower levels. A 1967 article in Social Problems, "The Woman Ph. D., a Recent Profile." found that married women Ph. D.s published as much or more than men Ph. D.s And L. R. Harmon's "Scientific Manpower Report No. 6" (1965) concluded from a study of more than 20,000 Ph. D.s that "women Ph. D.s are superior to their male counterparts on all measures derived from high school records, in all . . . specializations" (page 60) and “earlier study found women Ph. D.s . . . brighter by any index. . . than men in the same . . specialization." (pages 27-28). Even if it were true that there aren't enough qualified women, the charge that affirmative action means hiring the unqualified is clearly false. There is also no support in law for paying minority appointees more than white males. At a conference held earlier this year at the University of Michigan, U.S. Representative Edith Green, author of Title IX of the Higher Education Amendments of 1972, refuted the idea of a quota system, saying that "quotas are the crudest form of mindless inequality." On the other hand, eliminating hiring goals would undermine what few gains have been made. Green outlined the current situation: there are 32,875 male full professors in the U.S., and 3.193 female; median pay for women professors is $11,000, for men $22,000; 69% of women enter college

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with a "B" average or better, 41% of men; in college men get more financial aid, än graduate schools all of the most important stipends go to men.

Affirmative action has in fact, then, effected little change in the status of women in higher education or in the mental attitudes and biases permeating white, male academia. And it is the institutions who have done the least who protest the loudest. Harvard has yet to come up with an affirmative action plan acceptable to HEW and still has its federal money (The Spokeswoman, August 15, 1973). Brooklyn College, which has refused since 1971 to act on HEW recommendations, still has its federal money. At the same time, HEW has accepted the good faith efforts of Rutgers, M.I.T., Princeton and other schools unable to meet their hiring goals.

Responding to Dr. Lester's report for Carnegie, Mary Lepper, director of the higher education division of HEW's Office of Civil Rights, took strong exception to the report's findings: "The charge that women and minorities are not prepared [to be] as potientially excellent educators as white males cannot be :substantiated." One thing Dr. Lester, Representative Green and Dr. Lepper agree on is that there are grave flaws in the mechanics of affirmative action. 'Two and one-half years after Title IX was passed, HEW has just come up with guidelines for implementation (The Spokeswoman, July 15, 1974). The guidelines aren't much of a threat to educators: they're vague, leave many cases uncovered and, most important, make no provision for enforcement. As in the past, the burden of proof falls on the victims.

[From the New York Review, May 16, 1974]

THE FIGHT OVER UNIVERSITY WOMEN

(By Gertrude Ezorsky)

Four years ago, the first complaint of university sex discrimination was filed with the secretary of labor by a woman's organization called the Women's Equity Action League. WEAL requested that an Executive Order, which, as of 1968, prohibited sex discrimination by federal contractors, be enforced against universities. Millions of dollars in federal contracts were handed out every year to academic institutions which, as WEAL claimed, practiced extensive and vicious prejudice against women instructors and students. WEAL appended eighty pages of evidence for its charges and asked that HEW examine all universities and colleges holding federal contracts to see whether they were complying with the Executive Order.

Within six months complaints against more than one hundred academic institutions were filed by women's groups. Under this pressure HEW's Office for Civil Rights began conducting reviews of the compliance of universities. Almost everywhere HEW found evidence of prejudice. The university administrators, in effect, had to promise to mend their ways or lose their federal allowances. Like other employers holding government contracts, they were required to draw up programs to eliminate discrimination in hiring.

The academic campaign against HEW on campus started on October 8, 1971, when Columbia's President William J. McGill, as Life's guest editor, complained that with "no prior warning" HEW had instructed Columbia "to get into [federal contract] compliance within thirty days or face a cut-off of federal funds." McGill's claim that Columbia had "no prior warning" was, as we shall see, utterly false. But within a few weeks Professor Sidney Hook of New York University was denouncing HEW's thirty-day edicts. While women's organizations were busy filing more university discrimination charges, Hook was busy telling university officials just what they wanted to hear: administrators "should not yield to [HEW] . . . ultimata." Hook organized the Committee on Academic Non-Discrimination and Integrity, and in one article after another male professors wailed about HEW interference on campus.

2

These protectors of academic integrity against the HEW civil rights office use two kinds of argument. According to the first, university hiring practices are fine just as they are. Universities practice a "merit system" of employment.3

1 Discrimination Against Women. Hearings before the Special Subcommittee on Education of the Committee on Education and Labor, House of Representatives, June, 1970 (hereafter House Hearings), pp. 298-314.

2 The New York Times, November 5, 1971.

"HEW and the Universities," Commentary. February, 1972 (hereafter HU), p. 40; "The Idea of Merit," Commentary, December, 1972 (hereafter IM), p. 45.

Since a merit system is, by definition, free of sex discrimination, HEW's pressure to hire and upgrade women faculty is superfluous and, if successful, would corrupt "standards of excellence." This argument is consistent. Unfortunately, its premise that universities practice a merit system-is false.

Not all HEW critics agree that academic hirings and firings are so fair or so virtuous. Some even grant (sometimes) that universities have treated women badly. But, they claim, HEW remedies have bad side effects. First, HEW investigators ignore university rights to due process (e.g., by issuing orders that universities must end discrimination within thirty days). Second, HEW insists on increased numerical representation of women on faculty-a numbers game that is said to be logically absurd since any other group could demand faculty representation. Finally, by requiring that the universities set numerical goals, HEW is allegedly imposing a quota system that causes reverse discrimination against men. As Charles Frankel, a philosopher, put it: "If you hire unqualified Women .. bright white males don't get jobs."

Let us see if the claims of these academics against HEW stand up.

THE MERIT SYSTEM

Paul Seabury, a political scientist writing in Commentary, describes HEW's enforcement of the Executive Order as an "assault on the merit system" of faculty recruitment. If the universities complied with HEW's demands, this would, he said,

compel a stark remodeling of their criteria of recruitment, their ethos of professionalism and their standards of excellence. . . . Somebody ...

has to pay when the principle of merit is compromised or replaced by preferential ethnic and sex criteria.

Seabury explains that the idea of merit as a conception of justice means “to each according to his abilities . . . [and] works." Of course, Seabury does not claim that throughout society people are rewarded according to their ability and works. Why then does he believe that this kind of justice looms so large in academies? Do professors have so much more integrity than ordinary mortals? Such discrepancy between the morality of academia and the rest of the world seems implausible, for a start.

Note that the idea of a merit hiring system does not mean merely that excellence is given some recognition, Superior quality plays a role in almost any market or hiring system. The force of talent is undeniable. It is unlikely that the three top sopranos would be unrecognized. Similarly, virtually anyone who has contributed significantly to knowledge will be offered a place in a major university. But it is a necessary condition of any hiring system based on merit that qualified candidates not be excluded, either because of (1) hiring procedures that tend to reject them, or (2) prejudiced attitudes, e.g., against women. Academic hiring fails on both counts.

IIIRING

If any group can be expected to hire its faculty according to "standards of excellence," it should be the philosophers. Do not philosophers, far from petty concerns, seek Truth, Beauty, and the Good? But the fact is that hiring practices in philosophy are similar to those described in US vs Local 46, Lathe Workers where the court found a "deep-rooted and pervasive practice" in the lathe workers union of giving out jobs through their own network "on the basis ... generally [of] ‘pull.'"

As with the lathe workers, so with the logicians. The philosophy hiring network is revealed in a document issued by the officers of the American Philosophical Association:

[we] have for some time been ashamed of the way in which we force young philosophers to . . . enter . . . the profession. . . . Candidates for junior positions, no matter how able, can . . . probably expect . . . serious consideration from only a few departments, . . . in a great many cases, departments having some special tie with [their] own. These conditions, together with the spectacle of the annual smoker ... [where job interviews occur] can

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