plane. We want a clever lawyer when we are in trouble. We want the telephone to work, and our mail to come to us, and to someone down the street. We want competent teachers for our children. In universities we want high standards of scholarship and research and we want them visible also as exemplars of excellence. In short, we want the entire complex of amenities and necessities in a condition which we can reasonably trust.

Our existence places us at the mercy of persons, often invisible to us, who are certified for their qualities. While we may argue about the manner in which, in real life, skill and competence are elicited and ascertained, we can hardly argue that there are no such things as skill and competence or that there is no way of measuring them. But there are those among us who do make this argument and those who also accept it, and its spreading influence may well constitute the single greatest threat to the quality of our lives today.

HEW AND THE UNIVERSITIES

(By Paul Seabury)1

Old Howard Smith, Virginia swamp fox of the House Rules Committee, was a clever tactical fighter. When Dixiecrats in 1964 unsuccessfully tried to obstruct passage of the Civil Rights bill, Smith in a fit of inspired raillery devised a perverse stratagem. He proposed an amendment to the bill, to include women as an object of federal protection in employment, by adding sex to the other criteria or race, color, national origin, and religion as illegitimate grounds for discrimination in hiring. This tactical maneuver had far-reaching effects; calculated to rouse at least some Northern masculine ire against the whole bill, it backfired by eliciting a chivalrous rather than (as we now call it) sexist response: the amendment actually passed!

Smith, however, had greater things in mind for women's rights. As a fall-back strategy, they would distract federal bureaucrats from the principal object of the bill, namely, to rectify employment inequities for Negroes. In this, at least in higher education. Smith's stratagem is paying off according to expectations. The middle-range bureaucrats staffing the HEW Civil Rights office, under its Director, J. Stanley Pottinger, now scent sexism more easily than racism in the crusade to purify university hiring practices. Minority-group spokesmen grumble when this powerful feminine competitor appears, to horn in. In the dynamics of competition between race and sex for scarce places on university faculties, a new hidden crisis of higher education is brewing. As universities climb out of the rubble of campus disorders of the 1960's beset by harsh budgetary reverses, they now are required to redress national social injustices within their walls at their own expense. Compliance with demands from the federal government to do this would compel a stark remodeling of their criteria of recruitment, their ethos of professionalism, and their standards of excellence. Refusal to comply satisfactorily would risk their destruction.

The story of how this came about, and what it portends, is a complex one, so complex that it is hard to know where to begin. It is also an unpleasant tale. Only its first chapters can be written.

I

Let us begin the story, then, with a brief history of the Civil Rights Act of 1964. This act, in the view of its principal sponsors, purposed (among other things) to engage the force of the federal government in battle to diminish or to rectify discriminatory hiring practices in firms and institutions having or seeking contracts with the federal government. Title VII of the act expressly forbds discrimination by employers on grounds of race, color, religion, and national origin, either in the form of preferential hiring or advancement, or in the form of differential compensation. Contracting institutions deemed negligent in complying with these provisions could be deemed ineligible for such contracts, or their contracts could be suspended, terminated, or not renewed.

When Title VII was debated in the Senate, some opponents of it, asserting (in the words of a Washington Star editorial) that it was a "draftsman's nightmare," voiced alarm that it might be used for discriminatory purposes, and employers

Paul Seabury is professor of political science at the University of California at Berkeley and the author of, most recently, The Rise and Decline of the Cold War.

might be coerced into hiring practices which might, in fact, viclate the equalprotection poctrine of the Constitution, thus perversely reversing the stated purposes of the bill. In one significant interchange, this alarm, raised by Florida's Senator Smathers, was genially dismissed by Senator Humphrey, in words which bear recalling:

Mr. HUMPHREY. [T]he Senator from Florida is so convincing that when he speaks, as he does, with the ring of sincerity in his voice and heart, and says that an employee should be hired on the basis of his ability—

Mr. SMATHERS. Correct.

Mr. HUMPHREY. And that an employer should not be denied the right to hire on the basis of ability and should not take into consideration race-how right the Senator is.

But the trouble is that these idealistic pleadings are not followed by some sinful mortals. There are some who do not hire solely on the basis of ability. Doors are closed; positions are closed; unions are closed to people of color. That situation does not help America.

I know that the Senator from Florida desires to help America, industry and enterprise. We ought to adopt the Smathers doctrine, which is contained in Title VII. I never realized that I would hear such an appropriate description of the philosophy behind Title VII as I have heard today.

Mr. SMATHERS. Mr. President, the Senator from Minnesota has expressed my doctrine completely.

The first steps in implementing the new act were based on executive orders of the President corresponding to Humphrey's Smathers Doctrine. President Johnson's Executive Order No. 11375 (1967) stated that

The contractor will not discriminate against any employee or applicant because of race, color, religion, sex, or national origin. The contractor will take affirmative action [italics added] to ensure that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.

Under such plausible auspices, "affirmative action" was born, and with a huge federal endowment to guarantee its success in life. Since 1967, however, this child prodigy-like Charles Addams's famous nursery boy with the test tubes— has been experimenting with novel brews, so as to change both his appearance and his behavior. And it is curious to see how the singleminded pursuers of an ideal of equity can overrun and trample the ideal itself, while injuring innocent bystanders as well.

II

Affirmative action was altered by a Labor Department order (based not on the Civil Rights Act but on revised Presidential directives) only mouths after the Johnson order was announced. This order reshaped it into a weapon for discriminatory hiring practices. If the reader will bear with a further recitation of federal prose, let me introduce Order No. 4. Department of Labor:

An affirmative-action program is a set of specific and result-oriented procedures to which a contractor commits himself to apply every good faith effort. The objective of these procedures plus such efforts is equal employment opportunity. Procedures without effort to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate. An acceptable affirmative-action program must include an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies and thus, to increase materially the utilization of minorities and women, at all levels and in all segments of his work force where deficiencies exist.

This directive is now applicable through HEW enforcement procedures to universities by delegation of authority from the Labor Department. By late 1971. something of a brushfire, fanned by hard-working HEW compliance officers, had spread through American higher education, the cause of it being the demand that universities, as a condition of obtaining or retaining their federal contracts, establish hiring goals based upon race and sex.

Universities, for a variety of singular reasons, are extremely vulnerable to this novel attack. As President McGill of Columbia remarked recently, "We are no longer in all respects an independent private university." As early as 1967, the federal government was annually disbursing contract funds to universities at

the rate of three-and-a-half billion dollars a year; recently the Carnegie Commission suggested that federal contract funding be increased by 1978 to thirteen billion dollars, if universities are to meet their educational objectives. Individual institutions, notably great and distinguished ones, already are extraordinarily dependent on continuing receipt of federal support. The University of California, for instance, currently (1970-71) depends upon federal contract funds for approximately $72 million. The University of Michigan, periodically harassed by HEW threats of contract suspension, cancellation, or nonrenewal would stand to lose as much as $60 million per annum. The threat of permanent disqualification, if consummated, could wholly wreck a university's prospects for the future.

In November 1971, HEW's Office for Civil Rights announced its intent to institute proceedings for Columbia's permanent debarment-even though no charges or findings of discrimination had been made: Columbia had simply not come up with an acceptable affirmative-action program to redress inequities which had not even been found to exist. When minor officials act like Alice in Wonderland's Red Queen, using threats of decapitation for frivolous purposes; when they act as investigator, prosecutor, and judge rolled into one, there may be no cause for surprise. But one can certainly wonder how even they would dare pronounce sentence and a sentence of death at that--even before completion of the investigatory phase. Such, however, appears to be the deadly logic of HEW procedures. As J. Stanley Pottinger, chief of HEW's office, said at a West Coast press conference recently, "We have a whale of a lot of power and we're prepared to use it if necessary." In known circumstances of its recent use, the threat resembles the deployment of MIRV missiles to apprehend a suspected embezzler.

IV

As the federal government of the United States moves uncertainly to establish equitable racial patterns in universities and colleges, it does so with few guidelines from historical experience. The management, manipulation, and evaluation of quotas, targets, and goals for preferential hiring are certainly matters as complex as are the unusual politics which such announced policies inspire. How equitably to assuage the many group claimants for preference, context-by-context, occasion-by-occasion, and year-by-year, as these press and jostle among themselves for prior attention in preference, must by now occasion some puzzlement even among HEW bureaucrats. On a recent Inspector General's tour of California. J. Stanley Pottinger found himself giving comfort to militant women at Boalt Hall Law School of the University of California; yet at Hayward State College, he was attacked by Chicanos for giving preference to blacks! Leaders of militant groups, needless to say, are less interested in the acute dilemmas posed to administrators by this adventure than in what they actually want for themselves. (When at Michigan I raised with a Women's Commission lady the question of whether an actual conflict-of-interest might exist between blacks and women, she simply dismissed the matter: that's for an administrator to figure out.) How to arrive at some distant utopian day, when "underutilization" of minorities or women has "disappeared," is as difficult to imagine as the nature of the ratios that will apply on that day."

V

Fifteen years ago, David Riesman in his Constraint and Variety in American Education pointed to certain qualities which distinctively characterzed avantgarde institutions of higher learning in this country. The world of scholarship, he said, "is democratic rather than aristocratic in tone, and scholars are made, not born." A "certain universalizing quality in academic life" resulted from the existence of disciplines which "can lift us out of our attachments to home and mother, to our undergraduate alma mater, too, and attach us instead to the new country of Biophysics or the old of Medieval History." In America, the relative decline of ethnic and social-class snobberies and discrimination, combined with immense expansion of the colleges, drew into scholarship a great majority whose backgrounds were distinctly unscholarly. "The advancing inner frontier of science," he wrote, had for many taken the place which the Western frontier served for earlier pioneers. The loyalty which the new democratic scholar

When I asked an administrator at San Francisco State College what "underutilization" of minorities meant, he simply replied, "Experience will let us know."

showed to his discipline signalled a kind of "non-territorial nationalism." In contrast to his European counterparts, the American scholar found few colleagues among the mass of undergraduates on the basis either of “a common culture or a common ideology in the political or eschatological sense." Paradoxically this democratization of the university (with its stress not on status but upon excellence in performance) had not begun in rank-and-file small colleges of the nation, which were examplars of America's ethnic, religious, and cultural diversity. Rather it had come out of those innovating institutions which, in quest of excellence, either abandoned or transcended much of their discriminatory sociological parochialism. It was the denominational college, where deliberate discrimination according to sex, religion, color, and culture continued to be practiced in admissions and faculty recruitment, which made up the rear of the snake-like academic procession. The egalitarianism of excellence, a democracy of performance, was an ethos consummated by the avant-garde. Riesman labelled the disciplines of the great universities the "race-courses of the mind."

Felix Frankfurter, who went from CCNY to Harvard Law School, was equally impressed with how the system worked. "What mattered," he wrote, "was excellence in your profession to which your father or your face was equally irrelevant. And so rich man, poor man were just irrelevant titles to the equation of human relations. The thing that mattered was what you did professionally...." As he saw the merit system, the alternative to it had to be "personal likes and dislikes, or class, or color, or religious partialities or antipathies. . . . These incommensurable things give too much room for personal preferences and on the whole make room for unworthy and irrelevant biases."

The greatest boost to America's universities came in the 1930's from European emigré scholars whose powerful influence (notable in the sciences and social sciences) is still felt even today. As exemplars of learning, their impact upon young and parochial American students was profound. Thanks in part to them, by the 1950's the great American universities attained an authentic cosmopolitanism of scholarship matched by no other university system in the world. And the outward reach of American higher education toward the best the world of scholarship could offer generated an inward magnetism, attracting to itself the most qualified students who could be found to study with these newly renowned faculties.

This system of recruitment also left a myriad of American sociological categories statistically underrepresented in the highest precincts of American higher education. Today, with respect to race and ethnicity, blacks, Irish, Italians, Greeks, Poles, and all other Slavic groups (including Slovaks, Slovenes, Serbs, Czechs, and Croatians) are underrepresented. On faculties, at least, women are underrepresented. Important religious categories are underrepresented. The great Catholic universities, until recently, have stood aside from the mainstream of secular higher education; they have been enclaves of a separated scholarship. Thus few Catholics are to be found in the roster of distinguished faculties of America's great secular universities, even though Catholics comprise perhaps 30 percent of the population. And it is interesting to note that the quest for professional excellence in some respects has militated against the achievement of group parities: among those women's colleges which had obtained by the 1950's an enviable academic status as being more than apartheid seminaries, one apparent "price" or scholarly excellence was the rapid infusion of male faculty.

And then, on the other hand, there are the Jews. For a long time, administrators of some of America's universities, aware of the powerful scholarly competition which Jewish students and scholars posed, and the social "inequities" which their admission or recruitment might pose, established protective quotas-the famous numerus clausus-to keep their numbers down. Yale Law School, for example, abandoned its Jewish quota for incoming students only in the 1950's. With the triumph of equal opportunity over quotas, the bastions of discrimination collapsed. It is estimated that Jews make up about 3 percent of the population. Clearly they constitute a vastly greater proportion than that on the faculties of America's greatest universities, especially in the social sciences, mathematics, and the humanities.

3 It is now sometimes said, on behalf of preferential recruitment of less-qualified minority faculty, that minority students require examples whom "their community" can respect. Whether in practice this would, as claimed, stimulate their performance, is hard to say. The most stimulating exemplary professors I encountered as a student had quite different "socio-economic" backgrounds from mine. Many were even foreigners. It seems almost foolish to have to mention this.

One could enlarge this catalogue of statistical disparities indefinitely. Yet I must also mention the political, although it is seldom touched upon. The partisan complexion of universities is a matter which HEW does not, and cannot, attend to. Still, I would point out that the faculty of my department at Berkeley, for example, very large by any standards, had to the best of my knowledge three Republicans on it a few years ago; two have since left, one by retirement and one by resignation. There is one new convert, who switched registration to vote for Senator Kuchel in the GOP primary and against Max Rafferty and found, after conversion, that he enjoyed the notoriety which his deviance produced. So, currently we have two Republicans in a department of thirty-eight. This situation is in no way unique. Yet I doubt that even Nixon's HEW crusaders for equality of results would tread into this minefield of blatant inequity. On the other hand, one wonders whether, in White House garrets, there are not some among the President's Republican equerry who take perverse pleasure in watching academic liberals, crusaders for social justice for others, now hoist by their own petard on home territory.

VI

The ironic potentials in affirmative action might have been foreseen had American lawmakers and administrators known the results which in recent years have plagued the government of India's pursuit of a quite similar goal. Here, perhaps more clearly than in any other contemporary culture, the idea that social justice can be reached via quotas and preferences has led almost inexorably to extremes of absurdity.

Before independence, under British rule, special privileges to communities and castes were given or withheld under the British raj both to rectify inequities and (as in the instance of the Muslims) to punish disloyalty or reward support. Commencing in legislatures as the establishment of reserved seats for privileged groups-first for Muslims, then for Anglo-Indians, then for Indian Christiansthe principle of privileged representation soon spread into other sectors of public life.

When in the early 1930's B. R. Ambedkar, leader of the Untouchables, demanded that the British establish preferential electoral quotas for them, Gandhi objected, arguing that the interests of the Untouchables would better be advanced by integrating them into society than by protecting them with preferential treatment. Gandhi believed that preference would heighten identity of caste rather than diminsh it, and that it further risked creating vested-interest minorities. Yet in negotiations with the British, Ambedkar won and Gandhi lost. After independence, the government of India backtracked, abolishing preferential treatment for all groups except tribal peoples and scheduled castes (i.e., Untouchables) who were accorded certain preferences in government recruitment and in access to educational institutions, fellowships, and admissions. Such preferences, originally instituted as temporary devices, soon became institutionalized, and again they spread. So-called "backward classes" proliferated to the point where it became necessary to be designated as "backward" in order to become privileged. And, indeed, in 1964, a "Backwardness Commission" recommended in the state of Mysore that every group except two (the Brahmins and the Lingayats) be officially designated as backward!

The Indian experience clearly shows that when access to privilege is defined on ethnic-community lines, the basic issue of individual rights is evaded; new privileges arise; caste privilege sabotages the principle of equality; the polity further fragments; and the test of performance is replaced by the test of previous status. (In Kanpur, recently, the son of a wealthy Jat family applied for admission to the Indian Institute of Technology and was rejected on objective criteria; then he reapplied as a member of an ethnically-schedled caste, and on this basis was admitted. )

VII

To remain eligible for federal contracts under the new procedures, universities must devise package proposals, containing stated targets for preferential hiring on grounds of race and sex. HEW may reject these goals, giving the university thirty-day notice for swift rectification, even though no charges of discrimination have been brought. Innocence must either be quickly proved, or acceptable means of rectification devised. But how does one prove innocence?

"Hiring practices" (i.e., faculty recruitment procedures) are decentralized; they devolve chiefly upon departments. At Columbia, for instance, 77 units gen