treatment" without also warning that those provisions were not applicable if there were a showing of past discrimination. To be sure, you mentioned that affirmative action programs were instituted in higher education without proof of need an assertion which I am convinced is inaccurate but you failed to point out that the general language of Title VII and Executive Order 11246 had to be interpreted in the light of a particular institution's past practices.

In other words, I felt your letter left the impression that in all cases involving institutions of higher education "preferential treatment" was prohibited. I think it would have been more accurate to advise your constituency that if there were no past record of discrimination, if an adequate affirmative action program were being made toward increasing the representation of minorities and women on faculties, it probably would be possible to avoid a governmentally imposed hiring program.

While I take you to task for assuming there has been no discrimination, you fault the cases I cite on the ground they apply only where previous discrimination has been proven. As I already indicated, my letter proceeded on the assumption that discrimination does exist. In addition to the evidence of discrimination relied on by Congress in extending Title

SPRING 1975

VII to institutions of higher education, it is now well accepted that a statistical showing of under representation is sufficient to establish a prima facie case of discrimination. (See United States v. Ironworkers Local 86; United States v. Hayes International Corp.; United States v. United Brotherhood of Carpenters and Joiners.) It then becomes the burden of the person or institution accused of discrimination to convince the court that minorities or women are underrepresented for reasons other than discrimination (U.S. v. Ironworkers Local 86).

My own experience with the recruiting and hiring procedures of institutions of higher education convinces me that this would be a burden that few institutions could sustain. Nor is it enough that a university demonstrate that it has not itself engaged in overt discrimination. A university's compliance with the law is not adequate unless it takes into account "broader patterns of exclusion and discrimination practiced by third parties and fostered by the whole environment in which most minorities must live" (Johnson v. Pike Corporation of America). Yes, Professor Todorovich, it is appropriate to ask universities to examine "external problems" and not at all unreasonable to require a public university, such as the University of Connecticut, to study the feasi

ness.

tunity to redress their grievances as are available to other employees in the other sectors of busiThere is nothing in the legislative background of Title VII, nor does any national policy suggest itself, to support the present exemption.

In fact, the Committee believes that the existence of discrimination in educational institutions is particularly critical. It is difficult to imagine a more sensitive area than educational institutions, where the youth of the Nation are exposed to a multitude of ideas and impressions that will strongly influence their future development. To permit discrimination here would, more than in any other area, tend to promote existing misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination. (Senate Committee on Labor and Public Welfare, Equal Employment Opportunities Enforcement Act of 1971).

The need for the inclusion of institutions of higher education within the coverage of Title VII is illustrated further by the extent to which charges of discrimination have been filed with the Equal Employment Opportunity Commission. Since 1972, 1,600 charges of job discrimination by post secondary institutions have been filed. In 1973, approximately one out of four EEOC charges involved higher education. Seventy-nine percent were against public institutions, 21 percent against private. Forty-four percent of the charges involved sex discrimination; 39 percent race or ethnic discrimination; 4 percent religious discrimination, and 13 percent of the charges constitute multiple allegations.

While a charge is not proof or an adjudication, I believe that the large number of charges filed against educational institutions in the short time they have been covered by the act is indicative of a widespread and pervasive problem.

The extensive number of charges of discrimination that continue to be filed by members of minority groups and women also argues strongly against your assertion that affirmative action programs are being abused and that there is "widespread discriminatory recruitment in academia." This certainly could not be proven by the results. The increase in blacks and women on the faculties of previously white and male schools has been infinitesimal.

If we were doing so well in implementing goals and timetables-or giving preferences or imposing

quotas the EEOC would be inundated with charges from white males, not minorities and women. It is difficult for me to accept the argument that affirmative action programs have been abused, i.e., have discriminated against white males, when I see so little evidence of increased numbers of minorities and women on university faculties. John H. Powell, Jr., as Chairman of the Equal Employment Opportunity Commission, stated:

...

We must look beyond the rhetoric and look at the facts. Any sort of preliminary analysis of the facts will show that blacks are not dis placing white males, that women are not displacing males, and I think that it is terribly important in this area, an area subject to so much misunderstanding, for us to tell it like it is and not necessarily respond to the rhetoric.

Nor do I find in Richard Lester's recent book any proof that affirmative action programs have been abused. The book differs sharply from its press releases and the exaggerated newspaper stories that preceded its release. Contrary to your claim, it does not offer a "powerful array of factual evidence" of anything. It only suggests, without proving, that affirmative action programs are ill suited to university faculty hiring practices. Lester's book is more a theoretical analysis of why "affirmative action" plans for the recruitment and hiring of women and minority group members by major government contractors, while possibly effective in the construction and manufacturing industries, are not well suited to the professional recruitment and hiring of university faculty members.

The basic tenet of this thesis is that faculty hiring practices are a delicate and sensitive matter among high level professional scholars which cannot be understood by those outside the academic community and therefore should not be interfered with. Lester's book does not purport to be a comprehensive study of "abuses" that have occurred in requiring affirmative action in the hiring of university faculty. He cites some examples of such abuses but what he has undertaken is an academic analysis of a program, and not a field study of its application.

My understanding of the situation convinces me that discrimination in higher education is more the rule than the exception. Accordingly, I felt that your December 11, 1973 letter was misleading because it concentrated almost entirely on a simple recitation of the language of laws prohibiting "preferential

■treatment" without also warning that those provisions were not applicable if there were a showing of past discrimination. To be sure, you mentioned that affirmative action programs were instituted in higher education without proof of need an assertion which I am convinced is inaccurate but you failed to point bout that the general language of Title VII and Executive Order 11246 had to be interpreted in the light of a particular institution's past practices.

In other words, I felt your letter left the impression that in all cases involving institutions of higher edu■cation "preferential treatment" was prohibited. I think it would have been more accurate to advise your constituency that if there were no past record of discrimination, if an adequate affirmative action program were being made toward increasing the representation of minorities and women on faculties, it probably would be possible to avoid a governmentally imposed hiring program.

While I take you to task for assuming there has been no discrimination, you fault the cases I cite on the ground they apply only where previous discrimination has been proven. As I already indicated, my letter proceeded on the assumption that discrimination does exist. In addition to the evidence of discrimination relied on by Congress in extending Title

VII to institutions of higher education, it is now well accepted that a statistical showing of under representation is sufficient to establish a prima facie case of discrimination. (See United States v. Ironworkers Local 86; United States v. Hayes International Corp.; United States v. United Brotherhood of Carpenters and Joiners.) It then becomes the burden of the person or institution accused of discrimination to convince the court that minorities or women are underrepresented for reasons other than discrimination (U.S. v. Ironworkers Local 86).

My own experience with the recruiting and hiring procedures of institutions of higher education convinces me that this would be a burden that few institutions could sustain. Nor is it enough that a university demonstrate that it has not itself engaged in overt discrimination. A university's compliance with the law is not adequate unless it takes into account "broader patterns of exclusion and discrimination practiced by third parties and fostered by the whole environment in which most minorities must live" (Johnson v. Pike Corporation of America). Yes, Professor Todorovich, it is appropriate to ask universities to examine "external problems" and not at all unreasonable to require a public university, such as the University of Connecticut, to study the feasibility of "improving transportation between Hartford and Storrs."

But whatever the necessity under Title VII to prove past discrimination before a race conscious remedy will be required, such a necessity does not exist under Executive Order 11246. In Contractor's Association of Eastern Pennsylvania v. Secretary of Labor, the Court upheld the Philadelphia Plan and said:

The absence of a judicial finding of past discrimination is also legally irrelevant. The Assistant Secretary (of Labor) acted not pursuant to Title VII but pursuant to the Executive Order. Regardless of the cause, exclusion from the available labor pool of minority tradesmen is likely to have an adverse effect upon the cost and completion of construction projects in which the Federal Government is interested.

Even absent a finding that the situation found to exist in the five-county area was the result of deliberate past discrimination, the Federal interest in improving the availability of key tradesmen in the labor pool would be the same. While a court must find intentional past discrimination before it can require affirmative action under 42 U.S. 2000 e-5 (g), that section imposes no restraint upon the measures which the President may require of the beneficiaries of Federal assistance. The decision of his designees as to the specific affirmative action which would satisfy the local situation did not violate the National Labor Relations Act and was not prohibited by 42 U.S. 2000 e-5 (g).

Since most of our major colleges and universities are government contractors, there is no need to prove an actual case of discrimination before requiring that such institutions adopt and implement affirmative action plans.

Unfortunately, I am not sure that my efforts to cite precedent or to distinguish the cases you rely on, or your efforts similarly directed at me, really will get us very far in bridging the differences that separate us.* Those differences are bottomed on our respective notions of what must be done to eradicate and overcome the generations of discrimination suffered by blacks, Chicanos, and women. Similar differences also

* For example, you fault me for relying on decisions that do not even lie in the field of higher education while overlooking the one case-the DeFunis casethat does lie in the higher education area. But your

accounted for the sides taken by the many parties who filed amicus briefs in the DeFunis case. On both sides of that case there were well intentioned individuals and organizations all equally committed to our constitutional principles and the concept of equal opportunity. Yet one group regarded the treatment of Mr. DeFunis as a violation of the Constitution and the other group discerned no such violation. To my mind, the basic question separating these groupsand us is the question of whether our Nation is prepared to tolerate some short-range, temporary disadvantages for white males in order to overcome our racist and sexist past.

I have enormous empathy for Martin Goldman (and I am glad to see that he has been compensated for the discrimination he believes he has suffered) and Paul Lammermeier, whose cases you cite in your letter, but at the same time I realize that the process of correcting past injustices cannot be totally painless. In the past, many Martin Goldmans and Paul Lammermeiers were able to obtain prestigious positions because they were protected from the competition

objection seems misplaced to me. DeFunis dealt with the student admission process and not with employment. Almost without exception, the cases I cited dealt with employment discrimination-the matter at issue between us.

Your criticism, however, is very revealing. It suggests a belief that there is something special about higher education. This seems to be a common problem among those working in higher education. As Chairman Powell has stated: "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 learning as well. This view is frequently held, notwithstanding glaring realities to the contrary."

It is not readily perceived that the same principles of nondiscrimination that apply to plumbers, policemen, and sheet metal workers also apply to professors. It is with a sense of deja vu that I listen to fellow faculty members tell me about the delicate, complicated issues involved in making decisions about academic competence. This was the same rationalization used by officials of plumbers unions to explain to the U.S. Commission on Civil Rights why there were so few black plumbers.

of blacks and women. For every Paul Lammermeier working as a short order cook today there probably were 1,000 blacks with college degrees or better who worked at the post office or as Pullman porters in the past.

It would be nice if we could make up for the disadvantages that some groups have suffered without any inconveniences to the advantaged group. I doubt whether this is possible, however. Undoubtedly, there are many individuals who feel that they have been disadvantaged because of the preferences we give to our veterans. But the sacrifices made by veterans, as a group, justify according them preferences, as a group. Similarly, our laws contain numerous examples of preferences for Indians, including preferences in employment, but because of the cruelty this group has suffered such preferences have been allowed.

When a society has committed past injustices or when historically disadvantaged groups exist side by side with more advantaged groups, it simply is not possible to achieve equality and fairness by applying neutral principles.* This has been recognized by India whose laws accord many preferences to "scheduled castes." This has been recognized by Israel, where so called "colored Jews" receive preferred treatment.

*I confess my love for preferential treatment and believe such policies are supported by the law. I do not believe, however, that it is because HEW officials are less frank than I am or less shameless than I am that they deny that their policies involve preferential treatment. I believe there is a vast difference between the "goals and timetables" program and a program that directly embraces quotas or preferential treatment. A demonstration of "good faith" is sufficient to excuse meeting a goal. If university officials sincerely believe they have undertaken good faith efforts to hire minorities, let them stand up to HEW and demonstrate their good faith-in court, if necessary.

As the Attorney General said in upholding the legality of the Philadelphia Plan, “If unfairness in the administration of the Plan should develop, it cannot be doubted that judicial remedies are available." The problem is that the self righteousness of so many academic people completely blinds their ability to engage in good faith efforts. If the energy expended attacking HEW was instead devoted to implementing affirmative action programs vigorously, I am sure there would be few difficulties in demonstrating good faith.

It is not pure fantasy, therefore, to believe that it is possible to "create color blindness out of color consciousness, and nondiscrimination out of preferential treatment."

Just a few months ago, the Court of Appeals for the Fifth Circuit upheld a lower court order which required the Alabama Department of Public Safety to hire one qualified black trooper or support person for each white so hired until approximately 25 percent of both the state troopers and support personnel force was comprised of blacks. Judge Coleman's reasoning is equally applicable to the situation we are discussing.

...

the affirmative hiring relief instituted [here] fails to transgress either the letter or the spirit of the Fourteenth Amendment. No one is denied any right conferred by the Constitution. It is the collective interest, governmental as well as social, in effectively ending unconstitutional racial discrimination, that justifies temporary carefully circumscribed resort to racial criteria, whenever the chancellor determines that it represents the only rational, nonarbitrary means of eradicating past evils.

By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday's racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit. For once an environment where merit can prevail exists, equality of access satisfies the demand of the Constitution. (NAACP v. Allen.)

In addition to our differences over what must be done to overcome the effects of past discrimination, I imagine we differ on what constitutes "merit" and "competence." Many of those who oppose affirmative action efforts argue that such efforts will upset systems that have been run strictly on the basis of merit and competence. They suggest that in the past the rule has been "may the best man (and I use the word intentionally) win" and that advocates of affirmative action are intent on destroying this principle.

Aside from the fact that in so many instances the only ones allowed to demonstrate their "merit" were