216 JOHN HART ELY affirmative answer can hardly be secure enough to support an absolute declaration of constitutional impermissibility. A credible explanation of why "benign" racial classifications are not suspect, however, would require the Court to expose some of the considerations that have made malign racial classifications suspect, and that exposure poses arguable risks for the judicial process. Explaining that the Court has accorded special review to most racial classifications because they are often the product of irrational prejudice might prompt a charge that the Court builds its constitutional judgments on "sociology, not law." Even if the Court could sidestep that charge with an explanation phrased more in terms of the relative nonsuspiciousness of a group's decision to disadvantage itself in favor of another, it would still find itself in sensitive territory. The justices might feel awkward about publicly taking into account the racial or other composition of the decision-making body, or perhaps of its constituency, even assuming that the pertinent facts are obvious.... Those who are troubled would be better advised to consider another alternative, eloquently elaborated in the earlier writings of Professor [Alexander] Bickel (indeed, "benevolent quotas" were one of the chief examples): denial of review. Powerful attacks have been mounted on the use of the "passive virtues" to avoid the invalidation of practices that are wrong on constitutional principle. The use suggested here is different, however, and is addressed to anyone who takes the (debatable) view that although the practice in question is not unconstitutional on principle, explaining why it is not would carry serious costs for the nation generally and the Court in particular. By virtually inviting another DeFunis case, the Court seems to have indicated that it sees no great costs in writing the opinion, and I am inclined to agree. But that decision-and not the decision on the constitutional merits -is the hard one. Measures that favor racial minorities pose a difficult moral question that should, by one method or the other, be left to the states. There is nothing suspicious about a majority's discrimination against itself, though we must never relent in our vigilance lest something masquerading as that should in fact be something else. The Case for for Blacks in Higher Education JOHN E. FLEMING GERALD R. GILL DAVID H. SWINTON Institute for the Study of Educational Policy Howard University Published for ISEP by Howard University Press Response to the Critics of Affirmative Action Chapter Four Ever since its application to higher education in 1971, affirmative action has been vehemently criticized by members of the academic community. For the most part, these critics have defined the arguments used in the debate over the concept and the implementation of affirmative action. In many instances they have popularized their opposition by using such code words as "quotas," "reverse discrimination," and "unqualified." These arguments tend to overshadow the real intent of affirmative action programs-to bring about equal employment opportunity in the field of higher education. Thus, this chapter is a response to the arguments of the critics. Briefly, their major contentions are that: affirmative action is unwarranted federal intervention in higher education; goals and timetables are euphemisms for hiring "quotas"; "quotas" violate the merit principle; and finally, no benefit of significance has resulted because of affirmative action. First, it is obvious from chapter two that federal intervention is essential if higher education is to be opened to all. Historically, predominantly white institutions deliberately denied access to blacks on the basis of race. After segregation was declared unconstitutional and employment discrimination was outlawed, academicians made no serious effort to bring blacks into academe. In fact, data suggest that black faculty members dropped from 3 percent in 1960 to 2.2 percent in 1968 at a time when institutions were rapidly expanding. Further, chapter five illustrates the extent to which OCR has gone to cater to the so-called special needs of academia, while chapter six points out the extent to which many faculty selection committees have been recalcitrant in fulfilling their obligation to follow the spirit of Executive Order 11246. Response to Critics of Affirmative Action If federal intervention is warranted in any particular area, it certainly is needed in institutions of higher education. Goals and timetables are definitely not quotas. The HEW Higher Education Guidelines (Executive Order 11246) are clear on this point. In fact, the section on the establishment of hiring goals reads: Goals may not be rigid and inflexible quotas which must be met, but must be targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work.1 Nor does affirmative action violate the merit principle, whereby allegedly the most qualified candidate is chosen, irrespective of "irrelevant" criteria, such as race. As chapter two clearly indicates, race was the most obvious criterion in limiting the career opportunities of black scholars. Such exclusion necessarily warrants the consideration of race as a means to rectify this injustice. Past criteria for hiring have generally limited the supply pool to white males who were a part of the "old boy" network. Affirmative action seeks to correct this exclusionary practice. By expanding the supply pool to include more blacks, affirmative action does not violate the prin ciple of merit. Instead it provides the opportunity for all qualified candidates, regardless of race or sex, to compete on an equal basis. Affirmative action does bring benefits to blacks. Most important, it has helped to open the door of the academic marketplace to the black scholar. For the first time, black scholars are beginning to make significant inroads into higher education. As the 1973 Bayer study and the 1975 Carnegie Council report indicate, there has been increased hiring of blacks by the more prestigious research universities since the inception of affirmative action. The recently released "Higher Educational Staff Information (EEO-6)" from EEOC shows a marked increase since 1972 in the total number of black faculty members." The above paragraphs summarize the overall arguments of the critics and offer brief counterarguments. The remainder of the chapter examines in detail the arguments of six critics who are viewed as the most vocal, and perhaps the most representative, of the wide range and diversity among the critics. These critics include George Roche and John Bunzel, presidents of institutions of higher learning. Roche is the presi dent of Hillsdale College, a private, liberal arts college in Michigan, which accepts no federal grants or subsidies. He is the author of The Balancing Act: Quota Hiring in Higher Education, a biased and distorted attack on affirmative action. Unlike his fellow critics, Roche The Case for Affirmative Action attacks all forms and types of government regulation. Besides attacking affirmative action, he has been most critical of Title IX of the 1972 Education Amendment which bars sex discrimination at colleges and universities that receive federal funds." John Bunzel, president of the California State University at San Jose, is one of the most pronounced critics of the use of "goals and timetables" which he, like the other critics, has equated with "quotas." Other critics, Nathan Glazer, Sidney Hook, Paul Seabury and Thomas Sowell, reflect the attitudes of faculty members opposed to affirmative action. Nathan Glazer, professor of education and social structure at Harvard, is one of the most vocal critics of affirmative action. He has achieved notoriety through the recent publication of Affirmative Discrimination: Ethnic Inequality and Public Policy. Often quoted by critics, both inside and outside academia, this book is a bitter attack on affirmative action policies and programs in education, employment, and housing. Sidney Hook, professor emeritus of philosophy at New York University and senior research fellow at the Hoover Institution, Stanford University, and Paul Seabury, professor of political science at the University of California, Berkeley, have opposed the implementation of affirmative action ever since its inception. Their common objections to affirmative action have led them to assume prominent roles in the Committee on Academic Nondiscrimination and Integrity. This committee, composed of over five hundred academicians, has maintained that appointments to college and university faculties should not be based upon race or sex.6 Thomas Sowell, professor of economics at UCLA, has been perhaps the most controversial critic of affirmative action. No doubt the novelty of a black academician actively attacking a program designed to benefit blacks has gained him access to the news media. In 1975 and 1976, he wrote several articles attacking affirmative action." Reaction to the Revised Order Revised Order No. 4, issued by the Department of Labor in 1971, called for colleges and universities, previously exempt as federal contractors from developing affirmative action plans, to do so. This order, "shook the academic community from its posture of indifference." But opposition to the Revised Order had been raised even before it had been applied to the academic community. Professor Edward Shils of the Uni |