often tells to alumni groups and other audiences when he is asked to describe what Princeton is doing to protect its independence in the face of Government intrusion into the university's affairs, the growth of Federal rules and regulations, and the mounting burden of unnecessary red tape and paperwork. How to respond to the constant threat of new "government initiatives" is a question .presidents, administrators, and faculty members across the US are grappling with on a daily basis.

Perhaps the single most controversial undertaking of the Federal government in American higher education has been the move to increase the hiring of minority and women faculty on the approximately 3,000 colleges and universities in the USA. If the institutions fail to take "affirmative action" in recruiting more women, Blacks, and other minorities for faculty positions, they face the possibility of a cut-off of Federal research (and other) grants. Put very simply, the enforcement of

this powerful requirement has increased the national government's role and has dramatically changed hiring and employment procedures on the campuses. It is a striking illustration of both the burgeoning cost of compliance and the growing autonomy of the executive branch of government as its Washington agencies have engaged in an excessive blanketing of rules and regulations.

In a moment of frustration over the heavy hand of the Federal bureaucracy, I once said that Affirmative Action was an example of the government's enduring ability to give a good idea a bad name. It was an immoderate statement... not only because I do not subscribe to that school of thought which reflexively looks upon the government as the embodiment of "regulatory evil" but because I supported the efforts (at all levels of government) to play a vigorous role in the struggle against discrimination and inequality long before Affirmative Action became a "code-word" in the 1970s. Along with most of my academic colleagues, I strongly believe we should recruit more women and minorities as faculty members on an equal opportunity and non-discriminatory basis. Highly qualified women in particular have not been accorded fair-and-equal treatment by the academic world, and it is time we admitted it. But I am opposed to the use of any form of quota system (or its functional equivalent) that would distinguish race or sex as a preferred or predominant criterion for hiring.

IN THE LAST TEN YEARS American educators have been reminded again that institutional freedom can be threatened by a well-intentioned and beneficent government. As Congressman John O'Hara remarked (when he was chairman of the House Subcommittee on Post-secondary Education),

"Surely we have learned that however laudable the goal, we cannot trust in the limitless goodwill of government-that agencies that are charged with carrying out the law have an almost irresistible tendency to go beyond the law, and that we have to maintain constant vigilance to see that they stay within it...."

Anyone looking for an example of how such university values as self-governance, academic excellence, individual judgment, and local decisionmaking have been entangled in the web of the Federal regulatory process could do no better than focus on the impact of Affirmative Action rulemaking and enforcement in the academic community.

FROM ITS INCEPTION in the early 1970s, Affirmative Action has been regarded by its

strongest advocates as a democratic principle wrapped in a moral command that authorises the Federal government, in advancing its conceptions of sound and necessary policy, to take enforcement action against colleges and universities (if they are Federal contractors) that have not taken positive steps to cure employment discrimination by hiring more women and minorities. But like "due process" and "equal protection", the substantive reach of the Government's powers and strategies to achieve its goals cannot be determined by reading the words of the wrapping alone. In relying on Executive Order 11246 (as amended) and a variety of other antidiscrimination statutes, the Government has assumed the role of interpreter as well as overseer of the rules and regulations. Furthermore, through its formidable presence it has not only sought to shape the thinking about social and racial justice in the country but has played a decisive role in its determination to make the American system of higher education fit its own egalitarian model.

It is important not to minimise the depth and range of the difficult problems and actual conditions which surround the guidelines for higher education established by the US Department of

Title VI of the Civil Rights Act (Sect. 601) states that "no person in the United States shall, on the ground of race, colour or national origin, be . . . subjected to discrimination under any program or activity receiving Federal assistance."

Title VII (Sect. 703a) states that "It shall be an unlawful employment practice for an employer .. to discriminate against any individual. . . because of such individual's race, colour, religion, sex or national origin: or to limit, segregate or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, colour, religion, sex or national origin.'

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HAT Reinhold Niebuhr once called "the irony of American history" is still bitterly at work on the US scene, and in the familiar paradoxical pattern. The American founding fathers were prudent, pessimistic men, fearful of governmental powers, and the US Constitution which they fashioned remains the legal basis for the most powerful centralised bureaucracy the liberal world has ever known. The innovative American ideal was "free and equal rights for all" but for a century and more an enslaved Negro minority was ignored. Ironies proliferated. In order to control intoxicating spirits and abolish alcoholism the Volstead "noble experiment" in Prohibition, constitutionally enacted, produced a vast consumption in rotten illegal "booze" and a violent underworld of gangsterism to distribute it.

THE DECADE OLD ATTEMPT to legislate "racial equality" is now emerging as the latest "irony in American history." The negative consequences of socalled Affirmative Action are coming home to roost.

Health, Education, and Welfare (HEW). The truth is that the debate over Affirmative Action has increasingly echoed Stokely Carmichael's familiar and facile distinction: "If you are not actively with us, you are actively against us. . . ." When applied to higher education, this simplistic moral absolute denies legitimacy to complicated and inevitably vexing questions.

"No institution is required to hire women or minorities on the basis of sexual or racial preference. To do so would be clearly illegal. Affirmative Action is not aimed at creating preference but at ending the preference for white males which has always existed in academia. What the executive order and Title VII do require is the obligation of fair recruiting and hiring.... Broadly speaking, affirmative action consists of efforts aimed to end discrimination and to remedy the effects of past discrimination."

HIS STATEMENT by Bernice Sandler, one of the most vigorous and respected opponents of discrimination, represents a number of beliefs which are in keeping with the unobjectionable policy of the Civil Rights Act of 1964 that all contractors with the government will take "affirmative action" to eliminate employment discrimination against a person because of race, colour, religion, sex or national origin.' Further, Executive Order 11246 (the source of the contract compliance programme) also forbids "discrimination-because-of...", commands equal treatment "without-regard-to .. and requires positive measures to eliminate the one and accomplish the other.

Once the vicious hallmark of a narrow exclusivism, the "Quota System" has been reinstated in US life. Once the invidious and humiliating "nosiness" of petty inquisitors, the "Racial Profile" (just how dark is your skin, how long your nose, how swarthy your complexion, and how mixed your grandfather's genes?) is coming to be standard bureaucratic proce dure. It is more than ironic, it is well-nigh suicidal. At a point in Western technological society, when brilliance and excellence and the innovative genius of exceptional individuals may help rescue a crisisridden civilisation, America is unfortunately opting for mediocrity, downward levelling, and an enforced depreciation of standards of talent and merit.

As always in the ironic turns of American history, the disastrous road is paved with the best of inten tions. Blacks should finally get their due place in the sun, women should at long last get a crack at all the good jobs so long automatically denied them. And so they should. But of all the roads to "ethnic" progress, the militant fiat of impassioned bureaucrats is surely the worst. They always want total results, instantaneously and across the board. They are ready

But the Department of Labour's Revised Order No. 4 charted a different course which underscored the schizophrenia running through the whole posture of affirmative action:

"An acceptable Affirmative Action program must include ... goals and timetables to which the contractor's good faith efforts must be directed to correct deficiencies and thus to increase materially the utilisation of minorities and women, at all levels and in all segments of the work force where deficiencies exist."

In the hands of some of HEW's advocates of an aggressive Affirmative Action programme, the concept of race and ethnicity has frequently been introduced into academic deliberations in ways that go beyond simply taking a person's background into account as a supplementary factor in making admissions or appointment decisions on the basis of individual achievement. Race has too often become the dominant (and sometimes exclusive) consideration that not only enables colleges to meet their "goals" and "timetables" but to subordinate merit criteria to the higher principle that preference be given to women and certain minority groups.

Thus "affirmative action" is governed by two sets of criteria with quite different genealogies. One draws on the tradition that the equal protection clause of the Constitution commands the elimination of racial barriers, with the academic variation that "race" (as the biologists and anthropologists demonstrated long ago) does not adequately describe individuals and, therefore, does not, allow discriminatory preferences for any group, minority and majority. The other asserts that the Constitution's equal protection clause permits "race" to become a factor in employment when identification by race is intended to help those for whose protec

to pay any civic price. They look no further forward than immediate ideological gratification. The hard clauses of a ministerial command, like the loud chanting of the slogans of yesteryear, are taken to have magical qualities.

THE PARADOX grows and hurts: to affirm is also to deny. In the name of spreading an ethnic or co-sexist or otherwise egalitarian democracy, important values of a democratic ethic are undermined. In the name of greater advantages for all, all become disadvantaged by a kind of high-minded cheating which leads to lower national achievement and to a low cynicism about pseudo-merit and manipulated rewards.

The dilemmas of "Affirmative Action" as they confront American university leaders are sometimes grotesque. If one Dean doesn't appoint more women (and/or Blacks, and/or Porto Ricans) to the biology and chemistry departments-there are some, but not "enough" (and his appointments committee just couldn't find others with proper qualifications to teach and do original research)—then Washington

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tion the Fourteenth Amendment was enacted. The former accords equal rights to all persons regardless of race and does not command that members of any groups be given preference in hiring because they were formerly the subject of discrimination or because they are members of a minority group. The latter claims that racial identification is necessary, given the compelling interest of the state in overcoming past discrimination. It is also a strategy that seems to assume that preferential treatment based on race is a rational means of implementing that interest.

THE CRUCIAL QUESTION has been how to interpret and then apply Washington's Federal regulations which prohibit discrimination on grounds of race or sex but also require affirmative and corrective action on behalf of certain minority groups and women. Apart from the tangle of overlapping jurisdictions (and the fact that different enforcement agencies of the government have had conflicting views about what procedures to follow in their investigations of employment patterns and personnel practices in higher education), there has been no clear agreement either on or off the campus as to what constitutes "discrimination." College and university officials have repeatedly been told that the prohibition against discrimination means that men and women should receive "equal treatment." But what kind of treatment is “equal" remains a matter of dispute.

What is not in dispute is that the meaning of discrimination has been expanded. For example, at one time discrimination turned on whether or not an employer took racial considerations into account in making employment decisions"intentional discrimination on the basis of race."

would cut off the Federal funds which keep his University Medical school functioning. If yet another White American is appointed to a distinguished chair of philosophy (or mathematics, or physics), then the obviously prejudiced culprits will soon feel the full fury of the regulatory commissioners. What price intellectual excellence, or educational competence, or for that matter academic independence and integrity? The dilemmas are cruel, and the compromises often demeaning-all, ironically, in the name of "changing society for the better", not slowly, not consistently, but NOW.

JOHN BUNZEL, as the President of a California university (San Jose), has been through it all. He is one of America's leading political scientists, author of an authoritative work on Anti-Politics in America (1967), and now a Senior Research Fellow at the Hoover Institution at Stanford.

M.J.L.

Now "discrimination" can take place even if the employer does not intend to discriminate in this way. The new test is whether an employer's hiring procedure has a discriminatory or "adverse impact" on certain (but not all) minority groupsBlacks, for example, or Hispanics, but not PolishAmericans or citizens whose ancestors came from Eastern Europe. In other words, if the effect is disproportionately to disadvantage Blacks as against Whites, the burden to prove good behaviour shifts to the campus to show that it is not guilty of discriminating on grounds of racereversing the ordinary requirements of legal procedure.

But, as Professor Jan Vetter (of Berkeley) has asked, "disproportionate with respect to what?" It makes a difference if the answer is with respect to the fraction of Blacks in the labour force, or with respect to the relative "merit" (i.e., job performance) of Blacks and Whites in the labour force. "These two answers might come to the same thing if it were the case that capacity for job performance were equally distributed among Blacks and Whites for all jobs. This is, however, not the case." 2

The cause of both grief and mischief for heads of academic departments as well as for deans and other administrators who are responsible for faculty appointments is the increasing tendency of the government's compliance agencies to regard numbers as ends in themselves. But educators across the country have long believed that the important goal for a self-respecting college or university is and should be "equality of opportunity for every individual and the appointment of the best qualified person in every instance." It has been my own contention that the commitment to Affirmative Action reveals a basic flaw when government

2 Professor Vetter points out that "a lower percentage of Blacks than Whites possess what society insists upon as a necessary minimum of training for the practice of medicine. The cumulative impact of the black experience in the US has the consequence that relative capacity across the entire range of jobs in the economy (in the sense of "present" as opposed to "innate" capacity) is not proportionately distributed between the two racial groups. It makes a difference whether discrimination against Blacks is defined as employing a lower proportion of Blacks in particular jobs than their proportion of the labour force, or as employing less able Whites than available Blacks. The former definition may serve as a measure of discrimination in society, but it is unlikely to furnish a test of unlawful discrimination unless modified to include a standard of minimum qualification. At least three considerations combine in favour of the latter definition. It serves an interest in efficiency. It gives effect to the view that the person who will perform a job best deserves the job. It rejects race as a criterion of selection." Jan Vetter. "Affirmative Action In Faculty Employment Under Executive Order 11246" (prepared for the Administrative Conference of the United States, dated 14 September 1974), pp. 65-66.

officials who investigate hiring and promotional practices rely heavily on a "numbers" definition of discrimination. The implication is that the real though unstated aim of Federal policy is not to promote equal opportunity but to bring about a dramatic equalisation of conditions for certain groups through preferential hiring and proportional representation-what the Carnegie Commission has called "an equality of forced results." This "charade of numbers" in the quest for statistical parity also implies that more weight should be given to prohibiting discrimination against what have come to be called "federally protected minorities", even though the Executive Order and Title VII of the Civil Rights Act make it clear that what is prohibited is discrimination against anyone on grounds of race or sex.

Τ

US DEPARTMENT OF LABOR (Revised
Order No. 4, Section 60-2.10), Higher
Education Guidelines, p.C-2.

"Whenever the percentage of such persons Iwomen and representatives of each minority group in that job group is less than the percentage available within the applicable labor area, the affirmative action program must specifically state that underutilisation exists in that group. Where underutilisation exists, and that increase in the number of persons in a job group necessary to eliminate underutilisation is 5 persons or greater, each laffirmative action program must contain goals which satisfy the following require

ments....

FEDERAL REGISTER (25 August 1975). p. 37066.

HE CENTRAL CONCEPT of "under-utilisation" as it has been used in Affirmative Action-the mandate that employers must overcome their "under-utilisation" of persons in certain preferred groups is another illustration of the shift in understanding of discrimination and discriminatory practices in higher education (and elsewhere) and of what should be done about it. Nondiscrimination and equal treatment without regard to race, sex or national origin are felt to lack