tial." In short, sending Mr. Dinnan to jail for refusing to reveal his vote did not serve an overriding public purpose.

It is not necessary to pretend there is no sex discrimination in higher education or to believe that academic freedom is a license to discriminate, to claim that there is no clear, convincing proof of discriminatory intent on the part of the university in the denial of tenure and promotion to Ms. Blaubergs. A special committee (including two women) set up in February, 1980, to review, once more, her many appeals found "no evidence of irregular procedures, invidious discrimination, or arbitrary or capricious action." It unanimously concluded that she had "failed to meet the required standards for promotion and those for tenure"-and that was the judgment of virtually every other faculty committee that evaluated her teaching, research, and professional promise. Furthermore, faculty committees that had denied her promotion and tenure had no difficulty in recommending promotion and tenure for other women who meet the appropriate academic standards-or in turning down men who did not.

The roots and the Dinnan case trace back to the 1970's, when such university values as self-governance, merit appointment, and individual judgment became increasingly entangled in the web of the government's affirmative-action guidelines and enforcement procedures.

Most educators have long believed that the important goal for colleges and universities is and should be equality of opportunity for everyone and the appointment of the best-qualified person in every instance. Today, the primary objective of many proponents of affirmative action seems to be to pressure the academic community to favor applicants on the basis of race or sex by the use of numerical goals and timetables. Where discrimination once turned on whether it was "intentional on the basis of race," now the test is whether a university's tenure or promotion process has an "adverse impact" on certain (but not all) minority groups and on women. In other words, the burden of proof shifts to the campus to show that it is not guilty of discriminating on grounds of sex or race, reversing the ordinary requirements of legal procedure. Universities, now cast in the defensive role, are having to devote more and more of their time and resources to responding to individual and group discrimination complaints-some of them frivolous. One result is that in the conflict between long-established academic policies and the imperatives of affirmative action, a fundamental academic value—the confidentiality of faculty evaluations— has been breached.

This is bad news. Worse news is that the American Association of University Professors, the architect and most uncompromising defender of academic freedom, says that although it wants to "protect the review process" and finds the jailing of Professor Dinnan "inappropriate," it "doesn't want to allow unfair discrimination." It has therefore announced that it is ready to assist everybody in resolving the

matter.

By straddling a precedential issue that sent a colleague to jail, the A.A.U.P. has lost an opportunity to put on the public record some of the reasons that confidentiality in the academic review process is necessary. Much of the intellectual smog that surrounds this question derives from the simplistic view that equates confidentiality with secrecy. In today's post-Watergate climate, secrets are bad news. But peer judgments by faculty members are not secret in this invidious sense. They are professional evaluations available to faculty committees that weigh their worth in coming to a decision about the academic credentials of the person under review. Far from secret, the evaluations are subject to intensive scrutiny by faculty members, deans, and administrative officials, all of whom have a common interest in seeing to it that the system works professionally and fairly to safeguard the rights and needs of the individual as well as those of the institution.

Those who argue against the principle of confidentiality frequently make the mistake of assuming that a tenure or promotion review is like a criminal or disciplinary action. But academic personnel reviews are not court proceedings, and should not be interpreted as such.

When faculty committees act on the professional future of a colleague, it is not an adversarial procedure. It does not take place in a secret, star-chamber session in which evil people give vent to their arbitrary, capricious whims-the involvement of both faculty members and administrators and the many steps of the review process prevent that.

Confidentiality does not jeopardize a faculty member's rights. Confidential peer judgment is the best way to assure honesty and candor in evaluating performance. Efforts to batter down the principle of confidentiality will ultimately produce deterioration in the ability to maintain a quality faculty. If the only way a less than competent faculty member can be denied promotion or tenure is for someone to

state publicly that the person is unworthy, promotion and tenure are virtually assured for everyone. That is a sure recipe for a mediocre university.

Egalitarian and populist pressures that have weakened meritocratic values are changing the academic world. The practice of rewarding excellence and quality in individual performance is giving way to demands for spreading benefits more equally among all members of the faculty. Those who insist on high academic standards for tenure and promotions by differentiating among candidates through comparative (and truthful) evaluations are finding that individual quality is increasingly discounted in favor of group equity. Meritorious performance and scholarly achievement are becoming less important than seniority and other less discriminating standards of competence. But colleges and universities are in the business of making discriminating judgments. There must be equity on our campuses—but not at the expense of excellence.

Senator HATCH. Thank you, Professor Todorovich.

What is wrong philosophically, in your view, with affirmative action as a temporary and remedial measure to account for past discrimination against minority groups? It is certainly difficult to deny that minority groups, especially blacks, have been subject to considerable discrimination throughout our country's history. At least I think it is difficult to deny. Again, what is wrong philosophically, in your view, of affirmative action as a temporary and remedial measure to account for past discrimination against minority groups?

Mr. TODOROVICH. Nothing philosophically as long as we understand what we mean under remedial. I am a member now of a college which does its best to pick up people of any race or creed. It just happens in New York City that many-

Senator HATCH. You called it "expanding the net," I believe. Mr. TODOROVICH. Expanding the net, yes, and giving any opportunity-that is what we mean under opportunity-to catch up and remedy what has been missed before and not just because of the way schooling went. We go even farther. There is a question of what family attitudes are.

We had this problem not just with minorities which are now official. Not so long ago, some of our professors would go from time to time into some Italian neighborhoods in Brooklyn to urge the parents to not lock their children into the same trades in which they were brought up, but if they are capable, to let them go further in, at that time, the Free University of the City of New York.

As Dr. Hook points out, there is a long tradition of trying to bend down and give any opportunity to moving upward as it was done in the tradition of this country.

However, the philosophy of this kind will get into difficulties if we, by hook and crook, try to guarantee also a numerical equality at the output end.

Senator HATCH. Dr. Todorovich, I believe you have previously been associated with several ethnic American organizations. You indicated that in your remarks. Is it possible to generalize about the attitudes in the ethnic communities about affirmative action programs and policies? Is there a feeling that these communities ought to be accorded greater consideration under affirmative action programs?

Mr. TODOROVICH. I did not exactly get the thrust of your question, but maybe what I will say is-

Senator HATCH. What is the attitude of the ethnic American people in the groups that you have been associated with? Do they want to have affirmative action programs for themselves?

Mr. TODOROVICH. First of all, as I remember, the last comprehensive poll of about 3 years ago on the question of preference-it was stated in that language-was not only rejected by 86 percent of the general population, I believe, but also by two-thirds of the minority population, blacks in particular. If you would want, I can find out the exact time and name of the poll.

I must say on my domestic grounds where I teach students in preengineering and where the homily usually reads that I have to make sure that you can build a bridge over which I will confidently ride one day, there is never disagreement. As far as my students are concerned, sometimes I have trouble remembering that they are black, or Hispanic, or Oriental, or whatever. They are all just strong minds for my purpose. They fully understand my concern with academic matters because they will have their children driving over those same bridges.

Especially in the hard sciences, extending opportunities is just as simple as that. You either can do something or cannot. We never have any problem with those students who are motivated and hard working.

Senator HATCH. Thank you, Professor Todorovich. We appreciate very much your efforts in being here today also.

Our next witness will be the Honorable William T. Coleman who is senior partner in the Washington law firm of O'Melveny & Myers and chairman of the board of the NAACP Legal and Educational Defense Fund. Mr. Coleman is the former U.S. Secretary of Transportation in the Ford administration.

The NAACP Legal and Educational Defense Fund is a frequent and always enlightening participant in the hearings of the Constitution Subcommittee. The fund is one of the Nation's outstanding sources of litigating expertise in civil rights affairs.

We are pleased to have both you, Mr. Coleman, and the NAACP Legal and Educational Defense Fund testify before this committee. No doubt testifying before congressional committees is one of the things that you probably most miss from your days as Secretary. [Laughter].

Mr. COLEMAN. I miss it very much.

Senator HATCH. That is nice to hear.

Please go ahead, Bill. It is nice to have you here.

STATEMENT OF WILLIAM T. COLEMAN, NAACP LEGAL
DEFENSE FUND

Mr. COLEMAN. Good morning, Mr. Chairman.

I am here today in my capacity as chairman of the board of the NAACP Legal Defense and Educational Fund. Since it is difficult to confine my perspective, however, to that one particular function, I shall also note in the interest of full disclosure that my personal views on the issues being considered by this subcommittee are very much affected by almost 40 years as a practicing lawyer, my episodic ventures as a public servant, my membership on eight corporate boards, my legal representation of some of the major Ameri

can corporations, and my lifetime commitment to and support of the Republican Party.

I approach this hearing with some trepidation, for in today's economic and political environment, the defense of affirmative action is sadly not a welcome stance in some circles. Some principles, however, transcend politics and compel us to place at risk whatever waning political aspirations we still may harbor in defense of certain simple notions of justice.

I have prepared a formal statement, sir, and I know that you will read it.

Senator HATCH. We will place it in the record following your oral statement.

Mr. COLEMAN. I would like to make certain points. First, when my good friend Morris Abram comes in and speaks as to what all civil rights people feel, he just is wrong. When I looked at "Simple Justice," which is really the history of the civil rights struggle, Mr. Abram's name does not even appear in the index. I certainly think that people like Ben Hooks and Vernon Jordan and others of us who marched and fought are more qualified to speak as to what the civil rights movement wants than people like Morris.

Senator HATCH. I might just mention that he was very impressive and very articulate in presenting his point of view.

Mr. COLEMAN. Yes.

Senator HATCH. I will also add for the record that I feel strongly that Dr. Abram has an unblemished record in support of equal rights and equal opportunities for all American citizens. Now he does differ perhaps from-

Mr. COLEMAN. He differs on this issue and this is the gut issue today. It is all right to send the lady candy, but when you really get down to try to support her and make sure she gets a good living, to say that she is going to be denied opportunity to get a meaningful job, then it certainly affects your overall position. Senator HATCH. Sure.

Mr. COLEMAN. At the outset, the one thing I would like to make crystal clear, although I do not think I have to make it to you, being a distinguished graduate from the Pittsburgh Law School, is that there is no real constitutional argument that a statute or a State practice or a private practice which establishes affirmative action programs that will take race into consideration in order to create opportunities for minorities somehow violates the 14th amendment.

I urge you to reread the history of the 14th amendment. That amendment was passed basically to protect black people. That was the purpose of the amendment. That is why a war was fought. It was to protect black people.

To say that Government programs which try to end the result of slavery, to end the result of racial discrimination and racial segregation somehow violate the 14th amendment is just too much of a sophisticated argument for me. I call your attention to Mr. Justice Frankfurter's concurring opinion in the Corsi case.

To say that statutes by the Federal Government or practices by the Federal Government which are trying to benefit black people and right past wrongs violate the 14th amendment just sets that

history on its head. How can you draw such statute or such programs if you don't mention race?

Also, every Federal circuit court that has had before it the issue, once you show that there has been racial discrimination in a plant-and you show that in part by demonstrating that there are black people who did not get jobs, or there are black people who are not in the workforce, or even though you are in a community where basically there are a lot of black people and there are no black people working-once the court has made that finding, every circuit in this country has held without any qualification that at that point a Federal judge can step in and say that to correct this type of discrimination you have to have certain types of goals, certain types of provisions based upon race which will ultimately end that racial discrimination.

This is nothing new in American law. Just read the antitrust cases. There are a lot of things that people who have not violated the antitrust laws have a right to do and can refrain from doing. However, once a court determines they have violated the antitrust law, then every court orders them to do many things that otherwise the courts could not do.

Senator HATCH. Some say there is nothing new ever in American law.

Mr. COLEMAN. I will never forget when I was in law school. There is a case, you read it, and the result just does not make sense until the professor tells you one more thing: a black person was involved. At that point, rules, and Congressmen and Senators who apply all these general rules, begin to get hung up on issues they should not be hung up on.

I feel that sincerely. The whole thrust of affirmative action was in part based on the Morton Salt case, an antitrust case. If you could just back off from questions of race and look at what provisions you apply in the law when you are dealing with any type of wrong, you will find that affirmative action fits in.

Why are these provisions needed? Look at the country. I call your attention to Mr. Justice Marshall's statement which I quote on page 8, footnote 9 of my formal statement. Look at the country. This was 25 years after Brown. Mr. Justice Marshall describes what life is today in these United States: blacks do not earn as much as whites; blacks have a much higher rate of unemployment; the child of a black mother is much more likely to die.

Take any measure. Look at this Congress and see how few blacks are here. Look at this Senate and see how few blacks are here. Look at any part of American life and you will find that basically there are very few blacks that are participating in the decisionmaking process.

Why is that? Some may say that blacks are inferior and therefore they just do not have the ability. I think anyone who has examined the life of an Alexander Pushkin, a William DuBois, a Charles Drew, a Langston Hughes, a Bill Hastie would have to reject that argument.

Senator HATCH. Or a Bill Coleman.

Mr. COLEMAN. I will get back to that.

Others will say that God somehow is unjust and He did not distribute the same talents equally among all the races. I think