MORE FOR THE COURTS

It is inevitable that an increasing number of academic discrimination charges will be decided in the courts. In the long run, however, the courts cannot play a comprehensive monitoring role either. Litigation is costly, time-consuming, and erratic. Furthermore, courts may decline to become enmeshed in such decisions. In Green v. Texas Tech, the only academic discrimination case to reach a Federal Circuit Court of Appeals thus far, the unanimous opinion was "the findings and decisions of academic administrative bodies are to be upheld by the courts when reached by correct procedures and supported by substantial evidence.”

For these and other reasons, most academics still regard the traditional academic procedures (AAUP or campus committees) as the most appropriate forum for pressing a grievance. AAUP has expanded its long-time preoccupation with academic freedom to include discrimination cases. (The number of complaints it processed increased from 550 in 1970 to 1,139 in 1973.) But AAUP is changing its role to participate more aggressively in collective bargaining. As a potential bargaining agent, it is barred from deciding grievances at campuses where other organizations represent the faculty and is not welcome in situations where collective bargaining is being considered. As AAUP becomes more aggressively "labor," it cannot maintain its honest broker image of pursuing only abstract values of academic freedom and nondiscrimination in administration/faculty conflicts.

It becomes increasingly clear that there is a need for an appeal process from the individual campus to a body that would be both competent to judge academie performance and that would also be knowledgeable about discriminatory prac tice and discrimination law. Here the major disciplinary associations could play a role. About 90 percent of full-time faculty are in the disciplines represented by the 20 largest associations. Individual membership varies by discipline. Most of these associations (such as the American Political Science Association and the Linguistic Society of America) possess the rudiments of a grievance procedure, but these procedures have not been well funded, staffed, or used. There is now a need for the associations to respond to the demands for settling discrimi nation complaints in a more structured way. Given the tight academic job market and the changing national ethic about appealing to outside authority, negative campus personnel decisions may produce as many as 20 to 200 formal grievances in the large disciplines a year. The most difficult and perhaps most frequent cases will be instances where the charging party alleges discrimination and the institution alleges insufficient performance for promotion and tenure. (Most of the current cases involve women, but a rash of reverse discrimination charges can be expected in the future.) Selected and trained members of the discipline can probably be the best judges of the merits presented by the party and the institution.

Each discipline could appoint a panel called the Academic Review Committee (ARC) that would be prepared to hear such cases. The 10 or 12 members might be on sabbatical leave, recently retired, or otherwise available. While I believe it should be the association's role to select the panel, they should not administer the system for two reasons. First, they lack the personnel and fiscal resources. Second, an association of professors could not maintain membership loyalty and still be completely objective in deciding a number of administration-faculty disputes. For that reason, the associations should nominate the panelists, but the system should be administered by the American Council on Education or some consortium of higher education associations. It should receive the funds, determine the schedule, and select the three or five ARC members for particular investigation or working teams. By separating the nomination and administration functions, neither "labor" nor "management" should feel that the system is biased.

How should the system be funded? Initially, it might be financed as a foundation experiment, but eventually the costs should be borne by the institutions themselves, perhaps supplemented by federal money. Institutions are going to have to pay for the settlement of these cases in some way, whether through litigation costs or professorial time on campus grievance cases.

JURISDICTION AND AUTHORITY

The most complex questions are not those of organization of financing, however, but of jurisdiction and authority. ARCS should accept cases only where both sides have agreed in advance to abide by the decision. At this point, if

- either party should renege on that agreement, it is not certain that either the - federal agencies or courts would regard the agreement as binding. (The Supreme Court has ruled that neither EEOC findings nor decisions of arbitration proceedings can ultimately prevent an employee from exercising the Title VII right to final court determination.)

Nevertheless, if the ARCs develop sound procedures and carefully follow Title VII law, I think the courts will pay them great heed and ultimately merely monitor their results. The courts are not eager to invest their resources in sorting out scores of tenure decisions. Further, appeal from an ARC decision that both parties naturally sought may not be very common. A university that reneged on its agreement to accept the ARC ruling might be barred from further use of the ARC alternative and might discover that the courts are not very hospitable. The grievant, on the other hand, would probably find it too difficult to get a court to overturn the judgment of a nationally selected, trained panel of disinterested peers that decided a lack of merit rather than discrimination existed.

In short, if the ARCS are well administered and render verdicts consistent with public policy, I believe they will establish a role even without any statutory change or formal agreements. Eventually, Title VII may need to be amended to recognize this kind of alternative.

Instituting effective review committees will require some rethinking of institutional roles, and some hard decisions and compromises. But the ARC alternative offers a number of advantages. For the grievant, the ARC alternative offers a forum that ought to be quicker, cheaper, and more private than other routes. To be vindicated by one's academic peers will make restoration to a normal professional role much more likely than if the judgment is strictly governmental. For the university, a timely and efficient hearing is also advantageous. Preserving the privacy of personnel judgments and records is equally important. Utilization of the ARCSs ought to reduce the federal investigatory presence on - campus and keep evaluations of persons and programs out of the public record of briefs and court decisions. Too often damage is done to the reputations of persons who are not directly parties of the case but whose career records are introduced as comparative evidence.

For the disciplinary associations, the ARCSs create a mechanism for protecting members' rights. These procedures can provide a focus for the associations to - articulate professional standards in the light of equal employment opportunity requirements. For the government agencies, the ARCS can be a resource of much needed expertise on academic issues. To the extent that they actually settle some cases, they will reduce the backlog and permit a federal focus on systemic issues, policy development, and blue-collar problems. An entirely new body, such as the one proposed here, may be the best way to eliminate discrimination and protect - academic freedom.

Congressman JAMES G. O'HARA,
Special Committee on Education,
Cannon House Office Building,
Washington, D.C.

DEPAUW UNIVERSITY, DEPARTMENT OF POLITICAL SCIENCE, Greencastle, Ind., September 17, 1974.

DEAR CONGRESSMAN O'HARA: Thank you for your letter of September 11, 1974 inviting me to submit written testimony to your committee for the purpose of expressing my views on the question of compliance with civil rights laws and institutional eligibility for federal funds. I am pleased that Mr. Miro Todorovich - of the Committee on Academic Nondiscrimination and Integrity has submitted my name as a possible witness before your special committee, or in lieu of the restricted time, to present my views in written form.

In my opinion the policy of affirmative action has many worthwhile features and it should be maintained. As specified in the Civil Rights Act of 1964 and Executive Order 11246, this policy strengthens the very worthwhile effort to broaden the recruitment process at institutions of higher education to include candidates from all kinds of minority groups and all elements of American society.

However, I believe this policy has been improperly administered by the Office of Civil Rights at the Department of Health, Education, and Welfare. This office has interpreted this law and executive order in a manner which has established quotas and/or timetables by which universities and colleges receiving federal aid must have a certain number of faculty members from a few

specified minority groups. This action in turn has increased the demand for persons from these minority groups which has resulted in grossly augmented salaries and created many inequities in the salary scales at numerous institutions of higher education. It has caused the recruitment of blacks, women, Chicanos, etc., in a manner which ignores the interests and professional qualifications of white males. This policy has damaged morale and professional standards in the academic community.

I am not familiar with the specific legislation pending before your special committee on education. I frankly doubt if much new legislation is really needed to restore equality and justice in the recruitment, compensation, promotion, and tenure of faculty members at institutions of higher education. The present legislation is adequate for this purpose and upholds the basic principles of our society and our political system. What is needed, I believe, is the proper implementation of this legislation by the Department of Health, Education, and Welfare. More precise guidelines and more careful oversight of the bureaucracy involved in administering the policy of affirmative action is the most urgent need. Sincerely yours,

FRANK C. DARLING,
Professor and Head.

STATEMENT OF JUDY BERTELSEN, PRESIDENT, INTERNATIONAL STUDIES

ASSOCIATION/WEST

In the current period of retrenchment in employment in institutions of higher education, affirmative action programs are even more important than they have been in the past. If opportunities for minorities and women are to be developed, federal leadership is essential.

Despite the efforts of recent years, the attitudes of many people in positions of influence in higher education remain negative toward minority and women candidates. In many cases, different standards for appointment and promotion are applied to minority and women candidates from those applied to other professionals. Furthermore, the criteria are often stated in vague terms that allow prejudice to masquerade as evaluation of subtle professional qualities. Unless institutions are required to comply with clear and fair standards, persons in positions of academic power in many cases continue to apply capricious (and in some cases vindictive) criteria in appointment and promotion of personnel, while hiding behind the doctrine that academics are somehow above the law, above due process, and beyond question.

The Carnegie Commission report on Opportunities for Women in Higher Education (September, 1973) paints a gloomy picture, due to a wide ranging retrenchment in higher education projected for the coming 25 to 30 years. It is important that the hardships of this period not be used as a smokescreen to "explain" failure to hire and promote qualified minorities and women.

Hon. JAMES G. O'HARA,

SCIENTIFIC ANALYSIS CORP.,

San Francisco, Calif., September 20, 1974.

Chairman, Special Subcommittee on Education,
Cannon Office Building,
Washington, D.C.

DEAR CONGRESSMAN O'HARA: As Chief for the Center of the Study of Women in Society at Scientific Analysis Corporation, and as the Chairperson of the Committee on the Status of Women and Minorities for the Pacific Sociological Association, I have had some experience with why affirmative action is necessary. It seems to me, that many valuable additions to the Educational Committee are slighted by the patterns of what might be called institutionalized racism and sexism in our institutions of education. Many persons, even with the best will in the world, do not see how their notions of appropriate teachers and professors and researchers have become confused with their notions of the roll of men and women. My own experience has been in higher education, primarily with large universities. And I have been surprised, in that context, to see how many men and even women of good will have not yet grasped the issues of sexism, of reverse discrimination, of the unwitting use of standards of excellence which do not really examine issues of excellence but differentiate between men and women.

For these reasons, I wish to submit the enclosed report on one of our affirmative action investigations at U.C. Berkeley for the record. And I would like this. report to stand as the testimony from me and my committee on the way affirmative action programs have not yet been properly accepted and incorporated into the workings of even a very good university with a faculty having the best wishes in mind for their students and teachers.

I would very much like to have a copy of this report inserted in your record and also in the Congressional Record. And for this purpose I enclose two copies. Sincerely yours, Dr. ARLENE KAPLAN DANIELS,

Chief, Center for the Study of Women in Society, Chairperson, Committee on the Status of Women and Minorities for P.S.A., President, Sociologists for Women in Society. Enclosure:

SCIENTIFIC ANALYSIS CORP.,
August 15, 1974.

DEAR COLLEAGUE: The enclosed report of the joint investigation by the PacificSociological and American Sociological Association Committees on the Status Women has been sent to you for your information. This report has already been received by appropriate officials in the sociological societies and approved for distribution. The first group to whom this report was sent after association approval was the members of the faculty and student body at UC Berkeley with whom interviews were conducted.

We are now sending the report to other officials in the California University administration, representatives in HEW and OCR, local and state government officials from this region, members of feminist organizations, and other professional organizations concerned with AAP implementation and enforcement, and, finally, members of the press concerned with issues in higher education.

If you wish any particular official or person to receive this report, we will be happy to oblige. We would also be happy to receive any comments or suggestions you may care to make.

Sincerely,

ARLENE KAPLAN DANIELS,

Chairperson, PSA Committee on the

Status of Women and Minorities,

Chief, Center for the Study of Women in Society.
RACHEL KAHN-HUT,

Representative,, ASA Committee on the

Status of Women in Sociology

Associate Professor, San Francisco State University.

REPORT OF THE INVESTIGATION OF THE COMMITMENT TO AFFIRMATIVE ACTION, BY THE U.C. BERKELEY DEPARTMENT OF SOCIOLOGY, CONDUCTED BY THE JOINT COMMITTEES ON THE STATUS OF WOMEN OF THE PACIFIC SOCIOLOGICAL AND THE AMERICAN SOCIOLOGICAL ASSOCIATION

(Submitted by Rachel Kahn-Hut, San Francisco State University, representing the ASA Committee on the Status of Women in Sociology; Arlene Kaplan Daniels, Scientific Analysis Corp., chairing the PSA Committee on the Status of Women and Miniorities; Nona Glazer-Malbin, Portland State Universityand Solomon Kobrin, University of Southern California, PSA Committee. Members)

INTRODUCTION

Early in the academic year 1973–74, a complaint charging discrimination against women and minorities in hiring practices was filed against the Department of Sociology at U.C. Berkeley by the League of Associated Women on that campus. The complaint was addressed to the chairperson of the PSA Committee on the Status of Women and Minorities, Dr. Arlene Kaplan Daniels. In an effort to establish a liaison with the parallel committee of ASA, Dr. Daniels contacted Dr. Cora B. Marrett, Chairperson of the ASA Committee on the Status of Women in Sociology, requesting a representative from that committee to aid in conducting the investigation. The purpose of this request was two-fold: 1) to develop a

precedent and a format by which national and regional committees could work together on problems of common concern in the profession; 2) to follow the original mandate of the regional committee to engage in investigations and projects at geographical distances too great (and too expensive to underwrite) for the ASA National Committee network. This first attempt at liaison was aided by the fact that a national committee member, Dr. Rachel Kahn-Hut, was located close to the investigation site.

Ideally, such investigations should be conducted by persons who do not live and work near the site of investigations to avoid any appearance of undue influence from or bias toward any of the parties involved. Unfortunately, since neither regional nor national organizations have yet been able to allocate funds for these investigations, these precautions cannot be taken. In this case, the committee owes much to the dedication and disinterest of Drs. Glazer-Malbin and Kobrin who made the trip and participated in the investigation entirely at their own expense.

The investigation occurred over a four-week period in March and April 1974. The major effort involved one evening of interviews with concerned parties and then a one-day visit to the campus by the entire committee. A final two days of investigation were undertaken by the two local members of the team, Drs. KahnHut and Daniels, during the following three weeks. In addition, a number of telephone calls and letters were addressed to persons absent from the area but .concerned in the case.

This report is divided into four parts: 1) the substance of the complaint; 2) the explanations from departmental spokesmen about why the complaints were not justified; 3) the dissenters' rebuttal; and 4) the evaluation and conclusions of the joint committee.

1. The Substance of the Complaint

On December 26, 1973, the Committee on the Status of Women and Minorities of the Pacific Sociological Association received a request to investigate hiring practices at the Department of Sociology of the University of California at Berkeley from Isabel Welsh, Coordinator for the League of Associated Women (an organization concerned with Affirmative Action at the University of California. Berkeley).

The League of Associated Women made its complaint after stating that the sociology department's own women's caucus had protested to the chancellor but had received no response from him. The core of the complaint against the department concerns secret hiring practices going counter to affirmative action guidelines. The specifics involved the disappearance of a position for a social demographer (when the Personnel Committee nominated a woman) which had been publicly advertised and the redefinition of a Chicano studies position (when the committee nominated a Chicano). The department voted not to accept the nominees of the Personnel Committee and shortly afterward hired two white men who met neither of the publicized job descriptions.

On November 29, 1973 the League of Associated Women, in a letter to Dr. Mary Lepper, Division of Higher Education, Office of Civil Rights, DHEW, charged bad faith was shown by the publication of announcements for jobs which had disappeared.

"The Department publicly (announced in Footnotes, a publication of the ASA) for a specialist in Chicano studies and a demographer under the guiding principles of equal opportunity and affirmative action hiring. This may be construed as the public response to the Women's Caucus protest (against the department). In the meantime, however, the Department . . . is negotiating an extra position of assistant professor (for a white male specializing in neither of the advertised fields) . . . behind the scenes and . . . on the ground of previous commitments." The League concluded its complaint with the following statement: "... the professional bodies of colleagues responsible for monitoring the ethics of a profession should intervene and conduct a thorough investigation. We trust that you will accept this grave professional responsibility."

Thus the complaint states that the sociology department "repeatedly and deliberately violated both affirmative action guidelines and professional ethics in hiring practices." The basis for this charge was the hiring of two white males as assistant professors in positions which had not been publicly announced in advance. An additional charge was that these positions were filled with white males despite the recommendation of a legitimately constituted Personnel Committee that two women be hired for these positions; and that a Chicano be appointed to teach Chicano studies.