[EXHIBIT No. 42]

STATEMENT OF PROFESSOR MIRO M. TODOROVICH, ASSOCIATE PROFESSOR OF PHYSICS, BRONX COMMUNITY COLLEGE, CITY UNIVERSITY OF NEW YORK, AND COORDINATOR OF THE COMMITTEE ON ACADEMIC NONDISCRIMINATION AND INTEGRITY, BEFORE THE FACT-FINDING HEARING OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE OF THE DEPARTMENT OF LABOR-AUGUST 20, 1975

Your Honor, ladies and gentlemen:

I wish to express my appreciation for the opportunity to present before the fact-finders of the Office of Federal Contract Compliance, and to bring to the attention of the Secretary of Labor and the Director of the OFCC, the views of the Committee on Academic Nondiscrimination and Integrity on various aspects of the implementation of Executive Order 11246 as amended by Executive Order 11375 and “information concerning the implementation of the affirmative action requirements of the Executive Order as applied to employment at institutions of higher education."

CANI is the outgrowth of the concern of several hundred faculty members and administrators from most of the major colleges and universities who have firsthand experience of the anti-bias regulations which have given rise to these present hearings. Unlike other organizations of mass following, CANI has brought together persons who have been deeply involved in the study and analysis of the problem. My testimony must therefore be viewed as the result of a collective effort drawing on the expertise of various people.

I will try in my testimony to bring to light the following facts:

(1) At the time of the introduction of affirmative action programs in institutions of higher education, the available members of minorities and women were already, for all practical purposes, absorbed into the institutions of higher learning. Further increase in such academic population was basically a question of supply rather than demand. Consequently, implementational regulations produced by the Department of Labor and HEW were at best irrelevant, and in fact they were actually harmful.

(2) Affirmative action regulations of the Federal Government have rekindled massive discrimination.

(3) Said regulations have heavily bureaucratized the process of higher education.

(4) They have imposed an exceedingly heavy and unnecessary financial burden on institutions of higher learning at a time when such funds spent on education could have improved the educational and employment prospects of precisely those categories of persons in need of help.

(5) The relevant officials were in too many cases self-righteous, abrupt, preachy, and even arrogant. The whole operation violated in numerous way principles of good government.

(6) Existing regulations could not produce and have not produced results beyond what could have been expected from a natural flow of events in the absence of the regulations.

(7) Regulations and agencies have failed the genuinely aggrieved individual, because they have not established a general, meaningful, and workable grievance procedure which would speedily right the wrong for those who have suffered.

Since much will be said at these hearings about rules that go under the name of affirmative action, let me quote at the outset the actual affirmative action provisions of Executive Order 11246 as amended by Executive Order 11375. This will give us a yardstick by which to measure the intention of the Presidential Order. It will also give us a standpoint from which to survey the remarkable inflation and transformation of the concept of affirmative action under the management of non-elected officials. The Order says:

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 to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. . . The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive

consideration for employment without regard to race, color, religion, sex, or national origin.

The contracting agency or the Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union. . . to the effect that the signer's practices and policies do not discriminate on the grounds of race, color, religion, sex, or national origin, and that the signer either will affirmatively cooperate in the implementation of the policy and provisions of this Order or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions of the Order. (emphasis added)

In other words, according to the Presidential Order: (a) The contractor shall take affirmative action to act without regard to race, color, sex, etc. (b) The contractor agrees to post in conspicuous places notices about the "nondiscrimination clause." (c) The contractor will state in advertisements, etc., that he hires and treats employees without regard to racial, ethnic, sexual, and other characteristics. (d) The contractor will affirmatively cooperate in the implementation of the policy and provisions of the Presidential Order. And that is all the Order says about affirmative action.

Let us now see what the non-elected rule-makers have made out of the nondiscriminatory affirmative action principles and requirements of the Presidential Order. Among other things they have done the following:

(a) They have reversed the "without regard" approach and demanded hiring "with regard" to race, national origin, and sex.

(b) They have introduced the concept of "affected class" and required corrective action to achieve arbitrarily assigned target figures.

(c) They have invented the concept of group "under-utilization" and imposed a vague and never-ending process by which such "under-utilization" is to be discovered and remedied.

(d) They have mandated racial, ethnic, and sexual quotas under the name of "goals and timetables."

(e) They have required the development of so-called affirmative action plans even without any finding of discrimination.

(f) They have forced colleges and universities to develop their own, noneducational, affirmative action bureaucracy.

(g) They have severely limited the educational autonomy of academic departments.

Even a superficial glance at the so-called Order Number Four of the Labor Department shows how costly a bureaucratic mountain can be made out of a molehill. The resulting administrative nightmare is apparent from the example of actual demands on universities by regional officials of the Office for Civil Rights. (Appendix One documents the case of the University of Connecticut at Storrs.) The amount of paperwork and associated expenditure required by Order Number Four are truly staggering. What is even worse, however, is that in the process of transforming the Presidential Order into implementational directives the writers of these rules have thoroughly perverted and even subverted the original letter and spirit of Executive Order 11246.

This semantic and conceptual twisting is no accident, as is clear from a very revealing passage buried in the sex discrimination guidelines of the OFCC, published over the signature of the then Secretary of Labor George P. Shultz on June 9, 1970. Paragraph 60-20.1 reads as follows: "Experience has indicated that special problems related to the implementation of [the] Executive Order . . require a definitive treatment beyond the terms of the order itself." (emphasis added)

One might well ask where the administrative rule-writers found the audacity to "develop a definitive treatment beyond the terms" of the Presidential Order which provides the sole authority for their actions-let alone a "definitive treatment" that comes close to reversing the meaning of the Order.

But even if one assumes that all the bureaucratic directives were compatible with the Executive Order, one must still demand that directives with the force of law stay in touch with reality. Let us see how the various rules, sub-orders, guidelines (memoranda, etc. measure up to this standard.

Careful reading of the various implementational ordinances, particularly the sequence beginning chronologically with Part 60-2 of the OFCC directives, shows that they are based on the following assumptions:

(a) That past discrimination against "affected groups" has brought about the present state of "under-utilization." (Incidentally, it is never made clear whether "past discrimination" means discrimination within a particular professon, trade, or specialty, or discrimination in the most general hstorical sense.) (b) That "under-utilization" of women and minorities exists at most institutions of higher learning and in most fields of learning. The problem is assumed to be so serious as to warrant putting all institutions through the wringer of plan-making and goal-setting.

(c) That unless repeatedly pushed, badgered, and threatened, colleges and universities will not comply.

(r) That egalitarian requirements, as defined by the bureaucracy, take precedence over educational considerations when conflicts arise over such issues as hiring practices, nepotism rules, disclosure procedures, etc.

(e) That the only just and natural state of affairs, and the ultimate goal of Federal policy, is a uniform, across-the-board, percentage-wise distribution of all segments of the population in all forms of national life.

From the very beginning, in 1970, numerous concerned individuals and groups, CANI among them, raised serious doubts about the validity of the above assumptions and tried in vain to start a dialogue with the authorities in order to effect a more realistic approach. Meanwhile, groups of officials and advisers, led by the then Director of the Office for Civil Rights of HEW, J. Stanley Pottinger, crisscrossed the country in a campaign to convince all listeners that conditions in higher education were grossly discriminatory, that the "old boy system" dominated the universities, and that salvation for the oppressed was on the horizon in the form of a new approach called affirmative action.

In an address before a panel of the American Association of University Professors on May 5, 1972, Mr. Pottinger said:

Women and minorities . . . see the affirmative action component of the Executive Order as constituting the most effective way of ensuring that historic and cultural biases about the role and capabilities of women and minorities do not color the decisions which affect their opportunity for employment and advancement in the academic world. Affirmative action is the best, if not the only, way of combatting the effects of broad-based discrimination against qualified minorities and women.

The impact of the requirements set forth in the Executive Order and its implementing regulations on college and university employment policies, and particularly in the faculty area, is certain to be profound.

Now, about five years later, the regulations have run a part of their course. Many people have looked at the results, and most did not like what they saw. In addition to numerous monographs by Edgar Borgatta, Allan Ornstein, Barbara Lorch, John Bunzel, Paul Seabury, Robert Sassen, and many others, we now have book-length studies such as those of Professor Lester of Princeton University and President Roche of Hillsdale College. Professor Jan Vetter, in a comprehensive report to the Administrative Conference of the United States, observed:

These regulations, especially in their affirmative action aspects, fail to take account of special circumstances involved in the employment of academic personnel, the nonquantifiability of standards for academic personnel (e.g., research, teaching, public service) and the concept of peer review in academic employment practices. The regulations, moreover, are ambiguous and contradictory in such a way as to be incapable of coherent application to institutions of higher education. Application of these . . . regulations to the employment practices of institutions of higher education has proven unduly burdensome, disruptively inefficient and ineffective.

A recently completed study of the Carnegie Council on Policy Studies in Higher Education finds the federal affirmative action programs "confused and chaotic," notes that "few federal programs are now so near to self-destruction," and concludes that "seldom has a good cause spawned such a badly developed series of federal mechanisms."

The same Carnegie report observes that: . . . there is now no gap between [women and minorities] presently qualified and those holding "ladder" positions on faculties. Women constitute 16 to 17 percent of recent recipients of Ph. D.'s and hold 18 percent of the faculty ladder positions in four-year colleges. Members

of minorities constitute 4 to 5 percent of the recent recipients of Ph. D.'s and an equal proportion of persons holding ladder positions on faculties.

According to the Carnegie report, women occupy, in addition to 18 percent of Ph.D.-level "ladder" positions, about 25 percent of faculty positions in four-year institutions other than universities and more than 33 percent of all positions in two-year colleges. These figures are even more striking in light of the fact that the percentage of women recipients of doctoral degrees dropped from a high of 15 percent in 1920 and 1930 to less than 6 percent in 1950 before climbing again to 13 percent in 1970 and 18 percent in 1973.

The most recent and perhaps definitive work on this problem is a study entitled "Affirmative Action Reconsidered," which has been circulated in draft form by Professor Thomas Sowell of the Department of Economics of the University of California at Los Angeles. I hope that the complete study will soon be available for these hearings in order that it may serve as a reference point in further attempts to write regulations. I will quote here a few important passages from the study.

On the subject of racial discrimination in higher education, Professor Sowell writes:

For purposes of establishing a chronology, 1971 may be taken as the beginning of the application of numerical "goals and timetables" to the academic world. The question thus becomes: What were the conditions in academic employment, pay and promotions as of that date? With respect to minorities in general, and blacks in particular as the largest minority, virtually nothing was known about these crucial matters at that point. Assumptions and impressions abounded, but the first national statistical study of black academic salaries was published in 1974 by Professor Kent G. Mommsen of the University of Utah. In short, "affirmative action" programs were going full blast for years before anyone knew the dimensions of the problem to be solved. Professor Mommsen's data for academic year 1969-70 show a grand total of sixty-two dollars per year salary difference between black and white Ph. D.'s. An earlier study by Professor David Rafky showed that only eight percent of black academics in white institutions regarded themselves as having personally experienced discrimination in their

careers...

On a field by field basis, black doctorates were generally earning more than white doctorates in the same area of specialization and receiving more job offers per year and all this before “affirmative action” programs under Revised Order No. 4 in 1971. In other words, the effect of the straight anti-discrimination laws of the 1960s and of the general drive toward racial integration had created a premium for qualified black academics, even before HEW's "goals and timetables." Moreover, improvements since then need not be due to HEW pressures but may be thought of as a continuation of trends already evident before "affirmative action" programs began.

Professor Sowell's findings on academic women parallel those of the Carnegie Council:

Women have not risen to their present proportions among college and university faculty from lower levels in earlier eras, despite a tendency towards such fictitious parallelism in the literature. Women constituted more than thirty percent of all American faculty members in 1930, and the proportion declined over the next 30 years to about twenty percent in 1960. Women reached a peak of nearly forty percent of all academic personnel (faculty and administrators) in 1879, with fluctuations, generally downward, since then. Similar declines have occurred in the representation of women in other high-level professions over a similar span, both in the United States and in Europe. It is not merely that much of the assumed history of women is wrong, but more importantly, that the reason for current female disadvantages in employment, pay, and promotion are misunderstood as a result. The declining proportions of female academics occurred over a period of rising rates of marriage among academic women, and a period of rising birth rates among white women in general. In short, there is at least prima facie evidence that domestic responsibilities have had a major impact on the academic careers of women over time, which raises the question whether domestic responsibilities should not be investigated further as a factor in current female career differences from males, rather than go directly from numerical "under-representation" to "exclusion" and "discrimination".

The classic study, Academic Women by Jessie Bernard, described women as "overrepresented in college teaching." This was based on the fact that women

were only 10 percent of the Ph. D.'s but were more than 20 percent of college and university faculties. This was written in 1964-before "affirmative action." Unlike HEW's crude "underutilization" measures, this study (by an academic woman) considered not only the number of women with the usual degree requirements but also "the large number of educated women-30.6 percent of those with five years or more of college-who are not in the labor force."

In summary, the facts point to the following conclusions:

(a) Women and members of minorities are not now, and were not at the time "affirmative action" was introduced by the Labor Department and HEW, "underutilized" in higher education.

(b) The demand for and establishment of numerical goals and precise timetables (quotas) in institutions of higher learning was and is without justification in fact.

(c) The calamitous present state of the anti-bias programs is not merely a result of bureaucratic mismanagement or overzealousness. It is the inevitable consequence of the uninformed, unrealistic, and indefensible premises on which the regulations were based.

It should also be observed that government officials displayed a total ignorance about the statistical laws of nature in forcing on universities (as at Berkeley) a "model" affirmative action plan which, even if the availability numbers were right, would have been merely a doctored caricature of natural, nondiscriminatory conditions. The demand for perfect statistical justice is, of course, pushed to its grotesque but logical conclusion in the demand (imposed at Berkeley) that departments try to hire fractions of women and members of minorities.

In short, taking into account all the above factors, the existing disproportion between the percentages of certain groups in the general population and in the university, as well as among academic departments within the university, is essentially a question of available supply rather than hiring. This being the case, no amount of goal-setting could have altered the picture, and efforts at implementation necessarily reached their present sorry state. The regulations produced by the Department of Labor and HEW are not only irrelevant; they are harmful both to the cause of nondiscrimination and to higher education in the United States.

The anti-bias regulations were produced without prior research, without the participation of informed personnel, and without preliminary testing in pilottype projects. There was serious question about whether the regulations were compatible with the Executive Order from which they claimed to draw their authority. But none of these considerations deterred the Office of Civil Rights from charging headlong into the academy. Here are some examples:

An embattled president of New Mexico State University became party to a bargaining with the HEW's Regional Contract Compliance Officer in Dallas, Mr. Miles Schulze, which involved not only integral number of bodies but even fractions of a person. Here is an excerpt from his letter to Mr. Schulze :

"In paragraph 3, page 1, you have indicated that we failed to meet the goals set for minorities. Our analysis of chart I indicates that we did not meet our goals in the official-managers category (3 projected-0 hired) technicians (10 projected-9 hired) and sales workers (1 projected-0 hired). We did exceed our goals in the professional category (5 projected-19 hired) and the office clerical category (40 projected-55 hired). Our overall goal for these five categories was also exceeded (59 projected-83 hired). In the technician and sales workers category we missed our goal by one individual. Although there were no minority new hires in the official-managers category, two Spanish-Surnamed Americans (J. J. Tejada, Asst. Director. Cooperative Extension Service, and Jose I. Garcia, Manager, Administrative Systems Development, Computer Center) were promoted into this category, but have not been counted as new hires.

"In paragraph 1, page 2 you have indicated that we have no Native Americans on the faculty. Assistant Professor Richard J. Lease of the Police Science Department is three-fourths Cherokee, considers himself a Native American, and is so shown in all of our reports since he joined the faculty in 1965. The new Director of the Agricultural Extension Service is part Cherokee Indian." (Italics added.) At the University of Cincinnati, which is under the jurisdiction of another regional branch of HEW, their Affirmative Action plan contains the statement that the objective of the University is "to utilize women and minority group employees in all fields and on all levels of employment in proportion to the availability of minority group members and women in the populations of a reasonable