My friends and colleagues in UCRA and I sincerely hope that the Congress will muster the necessary wisdom and resolve to remove the noneducational impediments from our educational process and thus permit us to resume with all our faculties our scholarly work. As citizens, of course, we are duty-bound to obey all the laws of the land, and the devotion of our profession to equality and Equal Opportunity has been amply demonstrated. We are convinced, however, that there need not be any conflict between good citizenship and superior scholarship. I trust that the Senators share this view.

Thank you very much for your attention.

[From the University Centers for Rational Alternatives, October 1971]

DISCRIMINATION, COLOR BLINDNESS, AND THE QUOTA SYSTEM

(By Sidney Hook)

Every humane and fair-minded person must approve of the Presidential Executive Order of 1965 which forbade discrimination with respect to race, religion, national origin or sex by any organization of group that receives financial support from the government in the course of fulfilling its contractual obligations with it. The difficulties in enforcing this order flow not from its ethical motivation and intent, but in establishing the criteria of evidence that discrimination has been practiced. Very rarely are the inequities explicitly expressed in the provisons guiding or regulating employment. They must be inferred. But they cannot be correctly inferred form the actual figures of employment independently of the availability of different minority groups, their willingness to accept employment, and the objective qualifications of those able and willing to apply. To be sure the bigoted and prejudiced can distort these considerations in order to cover up flagrant discriminatory practices. But only the foolish and unperceptive will dismiss these considerations as irrelevant and assume that reference to them is an obvious sign of prejudice.

There is, unfortunately, evidence that some foolish and unperceptive persons in the Office of Civil Rights of the Department of Health, Education, and Welfare are disregarding these considerations and mechanically inferring from the actual figures of academic employment in institutions of higher learning the existence of discriminatory practices. What is worse, they are threatening to cancel Federal financial support, without which many universities cannot survive, unless, within a certain period of time, the proportion of members of minorities on the teaching and research staff of universities approximate their proportion in the general population. Further, with respect to women, since it is manifestly absurd to expect that universities be staffed in a equal sexual ratio in all departments, the presence of discrimination against them is to be inferred if the composition of the teaching and research staffs does not correspond to the proportion of applicants-independently of the qualifications of the applicants.

In the light of this evidence, a persuasive case can be made that those who have issued these guide lines and ultimata to universities, whether they are male or female, black or white, Catholic, Jewish, or Protestant and unqualified for the offices they hold and therefore unable properly to enforce the Presidential Executive Order. For they are guilty of fostering the very racialism and discrimination the Executive Order was issued to correct and forestall.

It is not hard to demonstrate the utter absurdity of the directives issued by the Office of Civil Rights of the Department of Health, Education, and Welfare. I shall use two simple instances. A few years ago it was established that more than 80 percent of the captains of tugboats in the New York Harbor were Swedish. None was black. None was Jewish. And this in a community in which blacks and Jews outnumbered Swedes more than a hundred to one. If one were to construe these figures along the lines laid down by the Office of Civil Rights of HEW, this would be presumptive proof of crass discrimination against Negroes and Jews. But, it is nothing of the sort. Negroes and Jews, for complex reasons we need not here explore, have never been interested in navigating tugboats. They have not applied for the positions. They have therefore never been rejected.

The faculties of many Negro colleges are overwhelmingly black out of all proportion to their numbers in the country, state, or even local community. It would be a grim jest therefore to tax them with discriminatory practices. Until recently, they have been pathetically eager to employ qualified white teachers, but they have been unable to attract them.

The fact that HEW makes a distinction between women and minorities, judging sexual discrimination not by simple proportion of women teachers and researchers in universities to their proportion in the general population, but only to their proportion among applicants, shows that it has a dim understanding of the relevant issue. There are obviously various occupational fields-military, mining, aeronautical, etc., for which women have, until now, shown little inclination. Neither the school nor the department can be faulted for the scarcity of female applications. But the main point in this: no matter how many applicants there are for a post, whether they are male or female, the only relevant criterion is whether or not they ar qualified. Only when there is antecedent determination that the applicants, with respect to the job or post specifications are equally or even roughtly equally qualified, and there is a marked and continued disparity in the relative numbers employed, is there legitimate ground for suspicion and inquiry.

The effect of the ultimata to universities to hire blacks and women under threat of losing crucial financial support, is to compel them to hire unqualified Negroes and women, and to discriminate against qualified nonblacks and men. This is just as much a manifestation of racism, even if originally unintended, as the racism the original Presidential directive was designed to correct. Intelligent, self-respecting Negroes and women would scorn such preferential treatment. The consequences of imposing any criterion other than that of qualified talent on our educational establishments, are sure to be disastrous on the quest for new knowledge and truth as well as subversive of the democratic ethos. Its logic points to the introduction of a quota system, of the notorious numerus clausus of repressive regimes of the past. If blacks are to be hired merely on the basis of their color and women merely on the basis of their sex, because they are under-represented in the faculties of our universities, before long the demand will be made that Jews or men should be fired or dismissed or not hired as Jews or men, no matter how well qualified, because they are over-represented in our faculties.

The universities should not yield to the illiberal ultimata of the Office of Civil (Un) Rights of HEW. There is sufficient work for it to do in enforcing the Presidential Directive in areas where minorities are obviously qualified and are obviously suffering from unfair discrimination. It undoubtedly is true, as some members of UCRA who have long been active in the field of civil rights have long pointed out, that some educational institutions or their departments have been guilty of obvious religious and racial discrimination. The evidence of this was flagrant and open and required no elaborate questionnaires to establish. The Office of Civil Rights could cooperate with the Department of Justice here. Currently, its activities in the field of higher education are not only wasting time, effort, and the taxpayer's money but debasing educational standards as well. It is bringing confusion and conflict into an area where, prior to its intervention, the issues were well understood and where voluntary efforts to hire qualified women and members of minorities were being made with increasing success.

[From the University Centers for Rational Alternatives, October 1972]

UNCERTAIN PROGRESS

(By Sidney Hook)

UCRA has cause for congratulation in the leadership it has given to the struggle against the attempt to impose discriminatory "quotas" or, to use the euphemism of

HEW, "numerical targets" on the colleges and universities of the nation. The recent revision of the guidelines of the Office of Compliance of HEW, may be considered a direct consequence of the mobilization of reflective opinion in universities, colleges and elsewhere by UCRA-working independently at the outset against great difficulties, and later on, in concert, with the Anti-Defamation League. The Executive Secretary of the UCRA was the principal figure in organizing the Committee on Academic Nondiscrimination and Integrity.

Although HEW has been compelled to retreat, the damage to higher education resulting from its intervention and earlier guidelines has been quite extensive. Our file shows case after case in which departments and colleges, under pressures and threats from the Regional Office of HEW, have either turned down highly qualified applicants on the ground that they did not fit the numerical goals of the local affirmative action program or have frankly broadcast their intentions to hire primarily from among HEW-defined minority ethnic groups and women, in order to achieve "proper proportionate representation in relation to the overall constituency." Confronted with cases in which a kind of discrimination in reverse was being practiced, officials of the HEW protested that their guidelines were being misunderstood by administrators in fear of threats that their Federal subsidies would be cut off. They brushed aside criticisms that such misinterpretations were natural in view of the reliance of HEW upon purely statistical tables of employment, promotions, and salaries.

The new guidelines issued by HEW still retains the fiction that "quotas" of employment in universities are not being sought, although some partisans of HEW, outside the academic community, frankly acknowledge that they are, and see nothing undersirable in it. The guidelines also play down the emphasis upon fulfillments of numerical targets and goals although the demand is made that they be explicity formulated. To outflank mounting criticism of the affirmative action programs, stress is now placed on evidence of "good faith" on the part of university administrations in rectifying the alleged statistical imbalance of ethnic and sexual representation. This imbalance is defined not by the disproportions between equally qualified candidates for positions, but by criteria not related to qualifications for the post. Since the best evidence of "good faith" is, of course, the achievement of numercial targets or goals, psychologically there is every expectation that administrators will continue to provide this evidence out of fear that, otherwise, their efforts to find the "proper" number of women blacks, chicanos, and other ethnics will be rejected as not in good faith and their receipt of Federal monies jeopardized.

How can "good faith" that candidates for a position are being selected solely on the basis of their qualifications and not on the basis of sex, color, religion or national origin be tested? The rational and just answer is: only if the best qualified person for a post is selected. The fact that a succession of appointments of the best qualified results in statistical disproportions among ethnic groups, is not prima facie evidence of the absence of good faith requiring explanations and apologies.

Where there is bad faith in distributing positions to applicants on grounds of merit, this must be established in individual cases, not by statistical inference. If we are choosing the best qualified players for a basketball team, the fact that all of most of them turn out to be black is not prima facie evidence of discrimination or bad faith in the process of selection. Only if white players equal to, or superior than, those accepted were rejected, would such an inference be taken seriously. Yet, au fond, this is the kind of thinking HEW has been applying to universities.

The great damage that has already been done is the result of over-fearful administrative compliance and the failure of the universities to take a unified and militant stand of non-compliance. Instead, they have, singly, feebly protested against the bureaucratic intervention and threats of HEW and have been compelled to yield one by one.

It is time now to escalate the opposition and demand that the burden of proof be on HEW to establish that a college or university is guilty of discrimination rather than to place on them the onerous burden of affirmative action programs in order to establish that it is free of any discriminatory practice. After all, in most areas of life the difficulty of proving the absence of guilt in any degree is almost invariably greater than proving guilt. In addition, HEW should not hold colleges and universities responsible for the supply of a predetermined number of a designated type of qualified applicants, thus expecting them to correct single-handedly social situations for which they cannot be held accountable.

It is reasonable to require, in the interest of justice and equal opportunity, that colleges and universities advertise openings available, in the way English universities do and Civil Service. It is unjust to make awards or to withold them on the basis of membership in any group rather than on the basis of individual merit (or individual need wherever this is a relevant criterion).

Mr. J. Stanley Pottinger who has played the chief role in prosecuting cases against universities on grounds of alleged discrimination, is very much on the defensive these days. He concludes a set speech he has given on many occasions with and anecdote to point a moral for universities. He relates the story of a Southern Postmaster who explained to a badgering Post office Inspector that there were no qualified blacks whom he could hire. To which the Post office Inspector who is himself black makes the response: "I am not asking you to hire unqualified blacks, I am asking you to use as much ingenuity to get us in as you have used to keep us out."

Nothing so glaringly evinces Mr. Pottinger's ignorance of educational conditions at the universities whose funds he had threatened to cut off-whether Michigan, Harvard, or Columbia. He begs the whole question about the nature of their practices, in implying that they followed a deliberate policy, like Southern racist postmasters, in keeping Negroes, women, and other ethnics out. He is advocating a new procedure different in direction but not in principle-i.e., the use of "ingenuity" to effect discrimination in reverse. Although there undoubtedly have been-and still are-cases of discrimination by bigoted individuals, who have been prejudiced against members of some groups, it is simply absurd to imply that universities ever adopted policies to exclude qualified blacks and women.

There is some evidence that HEW, unable to make a reasoned defense against criticisms marshalled by UCRA, has become a little more placatory in manner towards the academy without abandoning its campaign to enforce compliance with its bureaucratic regulations. All it requires for colleges and universities to win freedom from programs requiring in effect, if they are to be implemented, "discrimination in reverse," is for the faculties to speak up and bring pressure on administrators. It is understandable, if not commendable, that in some administrative quarters, budgets these days take priority over educational principle. But, the administrators should be made to understand that if they are united, HEW will be compelled to withdraw its threats since many valuable programs essential to the security of the country would be affected. However, if they do not unite, each will be humbled in turn.

Appointments made now merely to establish "proper" numerical goals and ratios-as if there were any such thing as a "proper" racial or sexual ratio in the affairs of the mind!-will not only defraud the students of the services of the best qualified teachers, regardless of race or sex, but will burden the universities for decades. It is easy to appoint unqualified teachers and scholars, but it is difficult to replace them with those who are qualified-sometimes so difficult that the experience is traumatic. This explains why so many incompetent teachers, grown grey in their sinecures, abound. To each institution we can say de ta fabula narratur.

[From the Time, October 1980]

GROWING Row OVER "PEER REVIEW"

IN GEORGIA AND CALIFORNIA, FACULTIES TANGLE WITH THE FEDS

Campus cries of inteference from Washington and the courts are all too familiar. But last week the leval of lamentation rose to a new crescendo in the wake of two incidents. First there was the jailing, for contempt of court, of University of Georgia Education Professor James A. Dinnan, 50; second there was Washington's announcement that the University of California at Berkeley risked becoming the nation's first university to lose federal contracts in a dispute over affirmative action. Under attack in Georgia, as well as California, was one of the academic world's most sacred traditions, the deep confidentiality that shrouds "peer review," the freespirited appraisal of faculty members up for tenure.

Georgia's Dinnan was one of nine faculty members who voted, 6 to 3, to deny tenure to Psycholinguish Maija Blaubergs, 33, a teacher in the college of education since 1972. It was the third time in as many years that Blaubergs had been denied promotion and tenure, and she sued the University of Georgia, charging sexual discrimination. During pretrial interrogation, Dinnan refused to disclose how he had voted. Instead he asked: "If academic freedom is not the right to judge one's peers free from outside pressure or intimidation, then what is it?"

As Federal District Court Judge Wilbur Owens Jr. saw the matter, Dinnan was withholding evidence from the court, since under the Civil Rights Act of 1964 it can become the courts' responsibility to decide whether junior faculty members like Blaubergs have been given fair consideration. Said Owens: "This court can't determine whether or not you did that unless you explain to the court what you

individually did and why you did it." To pressure Dinnan to testify, Owens fined him $100 a day for 30 days, and then sentenced him to 90 days in jail. Faculty colleagues raised most of the $3,000 to pay the fine. To sharpen the issue, Dinnan wore his full academic robes when surrendering to begin his prison term.

This week Dinnan's 90 days are up. He may be returned to the courtroom to face Judge Owens again. And his case is also being reviewed by the Fifth Circuit Court of Appeals in New Orleans. Meanwhile he has remained in prison at Florida's Eglin Air Force Base. In a one-page broadside, New York University Philosopher Sidney Hook blasted Judge Owens' decision as "one of the crassest illustrations of illconsidered and unjustified interventions of our imperial judiciary into the educational process." If discussions of promotion and tenure are to adhere to academic standards, Hook insisted, confidentiality is required without fear of "resentment and retaliatory responses of unsuccessful candidates." Indeed, even before Judge Owens' decision, Georgia administrators seemed wary enough: they had asked Dinnan and his colleagues to decide on the cases of Blaubergs and other faculty via secret ballot rather than by more open discussion and disclosure of each member's views, thus making it easier for the university to defend against possible lawsuits. As to the charge of discrimination, Georgia's vice president for academic affairs, Virginia Trotter, formerly Assistant Secretary for Education at the Department of Health, Education and Welfare, argues that it is unwarranted. Says she: "I chaired the final review committee, and I feel Blaubergs had every chance every step of the way. Over a three-year period her case was reviewed by nine committees. She did not present convincing evidence of her teaching skills, and she displayed no sense of growth in her academic speciality."

In marked contrast to Dinnan's defiance and the support he got from his university, the confrontation between the University of California at Berkeley and the U.S. Department of Labor began with compliance. In 1978 Berkeley administrators allowed federal investigators to see confidential peer-review documents regarding women. But several weeks later, when Labor Department agents asked to photocopy 466 of the documents and send them to Washington as part of a permanent affirmative-action file, Berkeley balked. Once they became Government documents, administrators reasoned, the Freedom of Information Act would allow third parties to gain access to them and the records would no longer be confidential. Berkeley did offer to take all of the documents to Washington where they could be inspected by officials but not copied or filed. The offer was rejected.

On a university-wide basis, Berkeley points with pride to progress in the hiring of women. The proportion of female associate professors, for example, has risen from 5.9 percent in 1968 to 15 percent in 1979. Still, some departments remain almost entirely male. Berkeley's classics department, for example, has only one female professor in a total staff of 16. To pursue its investigation of hiring practices in classics and four other departments, Labor's Office of Federal Contract Compliance asked for an administrative hearing to order delivery of Berkeley's documents. But Administrative Law Judge Thomas Schneider found in favor of the university. Said he in defense of the need for privacy in evaluating candidates: "Words written with the likelihood of publicity are likely to be bland and noncommittal and nonspecific." Last month, Labor Secretary Ray Marshall overruled Schneider's finding and ordered Berkeley to deliver the documents in 30 days or face a cutoff of federal contracts totaling roughly $25 million yearly.

Last week, as Berkeley neared its deadline, the university proposed a compromise limiting access to any documents forwarded to Labor and guaranteeing their return. Otherwise the school is prepared to sue to keep its funds flowing. In the thick of the bureaucratic battle, Berkeley Chancellor Ira Michael Heyman told Time: "It's very hard for a single campus to confornt the whole federal system. I'd like to see the issue of disclosure of such confidential documents addressed by large research universities, which unite and use their power against the Federal Government.' Already, many Berkeley departments warn faculty members when sending out requests for peer-review letters that the information requested in confidence may eventually be divulged-as a result of Government actions. One department chairman recalls that eight of ten people asked to write appraisals of one recent tenure candidate did not reply. What troubles professors and department heads is that the reluctance of faculty members to make appraisals now seems strongest in the cases of the weakest-and potentially most litigous-tenure candidates.

Nobody, in or out of academia, denies that there has been race and sex discrimination in the granting of tenure. What troubles many academics is that the corrective methods being used by the Government seem increasingly dangerous. Most would agree with Dartmouth President John G. Kemeny, a staunch critic of past discrimination. Says Kemeny: "Academic institutions now live under a constant threat that any employee not hired or promoted (even for the best of reasons) can