Antibias regulation of universities bring a civil action in the federal courts against an institution, charging an unlawful employment practice, which may include a pattern of discrimination as well as an individual complaint. Furthermore, about four-fifths of the states have fair employment practices laws, which usually ban discrimination in employment on grounds of race, sex, religion, or age. The laws in many states apply to the faculties of institutions of higher education and are generally administered by a state agency specifically created for that purpose. As provided in the Civil Rights Act of 1964, the federal commission defers action on charges until a state agency granted deferred status has acted on the same complaint. Thus a university can be subject to as many as four separate compliance investigations over a period of time and can have separate charges of discrimination brought against it by three federal agencies and a state agency. The agencies have different data requirements and may apply somewhat different definitions, criteria, and standards for determining the existence and extent of discrimination. Indeed, as indicated in Chapter 7, enforcement may vary significantly among the 10 regional offices of HEW. Although coordination among the different federal and state enforcement agencies has improved somewhat, universities have been troubled by inconsistency and confusion in the enforcement of antidiscrimination laws and regulations. Also, universities that submitted affirmative action plans have often waited a year, two years, and even longer without definite and official word from HEW on whether their plans were acceptable as submitted. From November 1971 until July 23, 1973, some 33 affirmative action plans submitted by colleges and universities were given interim or final approval, 51 plans were rejected as not approvable under the Executive order and HEW's rules and regulations, and 175 were pending.5 Those figures accounted for only about two-sevenths of the universities and colleges estimated to be under HEW regulation. In addition to actions by government agencies, educational institutions can be sued directly in the federal and state courts by persons alleging that they have suffered discrimination. Universities have been confronted with an increasing number of such court suits under Title VII of the Civil Rights Act and state legislation. At the same time, a considerable number of charges of “reverse dis5 Data obtained from letter sent by Gwendolyn Gregory of the Office for Civil Rights of HEW to Sheldon E. Steinbach of the American Council on Education, dated Sept. 17, 1973. Introduction 7 CHARACTER- MAJOR UNIVERSITIES crimination" (favoring women and members of minorities) have been filed with'HEW against academic institutions, and some have been taken directly to the courts. Universities are known for the quality of their faculties as educators and as creators of new knowledge through research, and for the relative effectiveness of their programs of undergraduate instruction and graduate training in the arts and sciences. It is mainly on their contributions in the humanities, social sciences, and physical sciences that the national and world reputation of American universities rests. In addition to the education of students and the creation of new knowledge, universities serve as independent centers for the advanced study of human affairs and the critical evaluation of society. To perform those functions properly, academic freedom-freedom to search out and report the truth-is essential. 6 Compared with universities in other countries, American institutions of higher education have enjoyed an unusually large measure of autonomy and independence from government control. That has been true not only of our private universities but also of the great state universities. Indeed, the state universities that have achieved the most distinction have generally enjoyed the greatest degree of autonomy. In this book, special attention is given to the possible effects of government antidiscrimination regulation upon the faculties and the instruction-research programs of what are termed major universities. They are the three to four dozen most outstanding universities in the country in terms of advanced education and research in the arts and sciences. Among the major universities in this country are such distinguished centers of learning as the University of California at Berkeley, Massachusetts Institute of Technology, and the universities of Chicago, Columbia, Harvard, 6 For a comparative analysis of American universities and those in other countries, see Ben-David (1972). 7 As used in this book, the term means those universities that rank in the top level according to such criteria as (1) assessments of the quality of programs of graduate education published by the American Council on Education and number of Ph.D. degrees granted per year and (2) measures of research contribution such as volume of scholarly publications, dollar volume of research, and honors received by faculty (e.g., Nobel Prize winners, members of the National Academy of Sciences, and awards by professional associations in academic disciplines). Antibias regulation of universities 8 Michigan at Ann Arbor, Princeton, Stanford, Wisconsin at Madison, and Yale. Such institutions have not only been leaders in advanced instruction and scholarship but also tend to be selected by HEW as leaders in the development of detailed affirmative action plans that conform to federal regulations. In other words, they have been used to establish patterns, to provide early examples of approvable affirmative action plans. Furthermore, the problems and issues of government regulation via affirmative action plans with numerical hiring goals tend to arise most acutely in cases involving the major universities. Many years of on-the-job training are required before one becomes a mature teacher-scholar who enjoys the combined advantages of academic tenure and academic freedom at such institutions. A high degree of faculty self-governance generally characterizes major universities. The faculty determine the curriculum and largely control academic personnel decisions on such matters as recruitment, appointment, reappointment, promotion, and individual faculty salaries. Our major universities generate a large proportion of the new knowledge and basic-research contributions in this country. Probably in no other country is national scientific endeavor so concentrated in universities as it is in the United States (see Kerr, 1972). A good part of our well-being rests on the effectiveness of their faculties. While they share the goal of improving knowledge and training minds, the major universities differ in their traditions, in their administrative structures and practices, in the areas of their strength within different disciplines, and in their student-faculty relationships. And they are in strong competition with one another for financial and other community support, for the best undergraduate students, for the best graduate students in particular disciplines, and for the best faculty in different subject areas. In American universities, the academic department is an important unit in the organization and governance of a university faculty, especially for purposes of the teaching and research programs and personnel decisions. Departments are generally organized according to academic disciplines. Within a department, tenured professors in their teaching and research tend to operate much like individual entrepreneurs, but they do, of course, have a strong self-interest in the successful operation and long-term future of that department. The aim is a kind of collegial form of self-govern 43-979 O 75 pt. 2B 19 Introduction PLAN OF THE ment, motivated by a common desire for excellence. Excellence can be defined in terms of the institution's reputation for undergraduate instruction, for graduate training, and for research output, both inside the university and among teacher-scholars in the discipline around the country and in the world at large. In a very real sense, the faculty are the university. The reputation and success of a university depends largely on the teaching and research ability, the dedication, and the collegial cooperation of the professoriate. Therefore, the trustees and the administration generally allow a considerable measure of autonomy to the faculty in teaching and research activities, and successful university administration involves working in cooperation with faculty in the definition and achievement of the educational objectives of the institution. Although our analysis will focus on major institutions, much of it applies to other universities and distinguished colleges as well. A number of the less-prominent universities have at least one distinguished academic department and to that extent are part of the interuniversity competition for top-quality faculty. Also, major universities not infrequently compete for individual faculty with departments in such distinguished colleges as Amherst, Oberlin, Swarthmore, and Williams. In considering the problems of applying affirmative action guidelines, one needs to recognize that a fairly mixed situation exists in terms of the academic reputations of individual faculty in the 2,500 institutions of higher education in this country, of which some 900 come under federal contract compliance. This study of antibias regulation of major universities begins in Chapter 2 with an examination of faculty appointments at such institutions. An understanding of the universities' demand for faculty is basic for the analysis in the chapters that follow. A reader knowledgeable of university aims in hiring, promotion, and compensation of faculty may wish to skim or omit this chapter. Chapter 3 considers the various aspects of discrimination, especially in university faculties, and explains the need to take supply factors into account in dealing with allegations of discrimination in employment. The federal government, in its method of analysis and its enforcement programs, has tended to neglect these factors. The supply analysis in this chapter provides a basis for much of the discussion in the next two chapters. Chapters 4 and 5 critically examine the federal program of com Antibias regulation of universities 10 pliance for contractors, based on Executive orders and administrative decisions. This HEW program of compliance uses estimated proportional representation by sex and race to establish the extent of discrimination, and requires that the contractor adopt numerical hiring goals by sex and race in order to achieve that proportional representation. Chapter 4 is concerned especially with the development of the enforcement program of HEW and the prescribed scheme for estimating the statistical base for hiring goals to enforce proportional representation. Chapter 5 contains a critical analysis of numerical hiring goals calculated in the required manner and considers other goals for affirmative action plans. The enforcement programs of other federal agencies and of state agencies, based on legislation, are considered in Chapter 6. They involve the investigation and prosecution of complaints filed with an agency or the courts by individuals alleging that they have been discriminated against on grounds of sex, race, or religion. Use of adversary proceedings to determine the comparative professional qualifications of individual faculty for appointment and promotion is examined, and a voluntary system for outside mediation and arbitration of individual complaints of discrimination in faculty employment is proposed. Chapter 7 discusses the staff of the Higher Education Division of HEW and the requirements it enforces with respect to the affirmative action plans of universities and colleges. On the basis of experience, a single HEW regulatory unit for the major universities is recommended. The faculty system of collegial decision making by a community of scholars and its long-term educational benefits are discussed in Chapter 8. The faculty system is contrasted with industry's hierarchical system of authority from the top down. The chapter explains the unsuitability of the industrial model for faculty decision making under government antibias regulation. Chapter 9 presents an alternative program of antibias regulation for faculty of institutions of higher education. The program provides for systematic collection of faculty data from covered institutions and central analysis of the material for purposes of comparing the progress of the institutions and estimating the effects of the government's antibias programs as well as for enforcement purposes. The six substantive components of the program are based on the material and conclusions presented in preceding chapters. The final chapter summarizes the principal faults in federal |