Government regulation and university effectiveness 135 against women, and some courts were using industry-model concepts in deciding faculty cases. Given the weak political position of institutions of higher education, the outcome of such developments is difficult to predict. But it has become increasingly clear to university administrators that the only intelligent policy is consistently to follow the principle of equal employment opportunity-to have faculty appointed and promoted who, on the basis of their past performance, are judged by mature teacher-scholars to be the best available in terms of the requirements of the position. Also, that policy is consistent with the most effective pursuit of a university's educational goals. Experience has demonstrated the need to work out a more intelligent and constructive program of affirmative action between government and universities. Such a program would involve more attention to the contribution that universities and government could cooperatively make to develop a larger supply of well-qualified women and minority persons for academic and other professional positions. Also there is need for some intelligent analysis of affirmative action and antibias enforcement on the demand side in the cases of universities. The next chapter deals with those subjects. 9. A Program for Enforcement of Nondiscrimination This chapter sets forth a program for government enforcement of nondiscrimination in faculty employment that has been developed by the author. The program deals primarily with Executive order enforcement policy as applied by HEW. One could argue that a comprehensive scheme of antibias regulation of universities, conducted by an administrative agency under Executive order, is not so necessary now that institutions of higher education are under the fairly comprehensive programs of antidiscrimination, involved in enforcing Title VII of the Civil Rights Act, the Equal Employment Opportunity Act of 1972, and the Equal Pay Act amendments of 1972 as well as state fair employment practices and equal-pay laws. The program presented here assumes that properly formulated and properly enforced antidiscrimination guidelines under contract compliance could, on balance, provide sufficient positive benefits in terms of nondiscrimination in faculty employment to justify having such government regulation for several more years. In view of all the other antibias regulation of universities, however, the program under Executive order should be designed so that, at the appropriate time, it could be considerably contracted, if not completely terminated, with respect to university faculty. Any program for Executive order enforcement as applied to faculty should be essentially in accord with the basic legislation for nondiscrimination in employment and pay as applied to faculty. Otherwise, a university's efforts to comply with all government agency directions and demands can only lead to inconsistent appointment and promotion decisions, which can expose the university to simultaneous charges of discrimination in favor of and against the same group, on grounds of race or sex. The proposed program is designed to improve Executive order Antibias regulation of universities 138 IMPORTANT TIONS IN enforcement of nondiscrimination in a number of respects: soundness of conceptions, consistency of policies, suitability for the special needs of higher education, avoidance of adverse effects on the educational objectives of institutions, restraint on the regulatory propensity for undue intrusion, and economy and efficiency of administration. In developing affirmative action guidelines, stress on those aims and considerations is important for gaining enlightened acceptance and pursuing intelligent enforcement. This chapter first takes up the aims and considerations that experience indicates need stressing in a government program to enforce nondiscrimination in faculty employment under federal contract compliance. Next attention is given to the need for the government, as an important part of its compliance activity, to collect faculty data on a nationwide basis, covering projected and actual hirings, the terms of offers made, faculty movement among institutions, and individual charges of discrimination and their disposition. With timely data of thất sort, the program could be monitored centrally, on a nationwide basis and for different segments of higher education. Analysis of the data could show the progress that is being made, the troublesome problems that are developing, and the revisions in the program that seem called for by experience. Then, in the final section, the main elements in the proposed program are presented in fairly concise form. The program is designed primarily as a revision of the HEW Guidelines. It would also involve some changes in the jurisdiction or policies of other federal agencies, particularly in the Department of Labor. In addition, the voluntary program of private mediation-arbitration discussed in Chapter 6 is included as a significant element in the total program. Experience is an acute teacher. Use of the HEW Guidelines for more than a year has taught both positive and negative lessons. We have learned which policies are appropriate and have desirable effects and which are ill-conceived and have unfortunate consequences. Much has also been learned about the administration of government antibias programs that seek to enforce nondiscrimination and various kinds of "affirmative action." 1 Guidelines for affirmative action plans should be based on a knowledge of the facts, a well-considered formulation of objectives, clear A program for enforcement of nondiscrimination 139 definitions and concepts, appropriate analytical methods, and arrangements for intelligent, sensible enforcement. Higher education guidelines designed to apply to faculty should be geared to the special, rather unique systems for hiring and promotion for teacher-scholars, particularly at major universities. Therefore, guidelines for the antibias regulation of university faculty should be conceptually and administratively distinct from those for industry or for the nonacademic, supporting staffs of universities. Revised Order No. 4 as presently conceived and applied is inappropriate for application to most tenure faculty positions in major institutions. The facts of academic life, including specialization by a subfield of a discipline and considerable differences in abilities and competencies among experienced teacherscholars in a subfield, make highly questionable any attempt to apply unsophisticated notions of availability, utilization, deficiency, proportionality, and numerical goals with timetables to faculty positions beyond those to be filled by new Ph.D's beginning their teaching-research careers. 2 All parts of the federal effort to achieve nondiscrimination in higher education should be consistent in aim and policy. Federal authorities should be clear and in agreement with respect to proper policies: (a) To rectify past discrimination in individual and class cases and prevent such discrimination in the future (b) To correct university policies (for example, employee benefits, leaves for childbearing and child-rearing, part-time tenure appointments, antinepotism rules) that may operate in a discriminatory fashion (c) To prevent new discrimination in hiring, promotion, or compensation A set of federal guidelines that results in inflated numerical goals and stimulates pressures for preferential hiring and promotion by race and sex serves to increase the amount of discrimination,1 which is inconsistent with the provisions of federal legislation and the stated aims of federal agencies. Guidelines for higher education should be clear of purpose and consistent in practice with respect to those matters. Given the very special features of the faculty system of appointment and promotion, a strong case can be made for a single federal 1 Preferential hiring and preference in promotion discriminate for some groups and against others, thus adding to the amount of discrimination, as Daniel Seligman (1973) points out. Antibias regulation of universities 140 regulatory agency for antibias enforcement, at least for the faculties of institutions of higher education. It may not be possible to have the necessary consistency of enforcement goals, policy, procedure, and data requirements if enforcement is parceled out to four or more different federal agencies (HEW, the Office of Contract Compliance and the Wage-Hour Division of the Employment Standards Administration in the U.S. Department of Labor, and the Equal Employment Opportunity Commission plus the Civil Rights Commission and the Department of Justice). 3 Under the affirmative action plans of major universities, stress should be placed on, and ample credit given for, developing a larger supply of female and minority-group faculty qualified for tenure appointment at high-ranking institutions. Such accomplishment could constitute the most significant affirmative action contribution that some major universities could make toward equalizing the chances of female and minority-group faculty to achieve high-level appointments. The working out, under government regulation, of incentives and credits for the appropriate recruiting and training of graduate students and assistant professors prior to a tenure appointment would present some practical problems, which are treated below. 4 The importance of intellectual autonomy for universities should be recognized and care should be taken to avoid, as much as possible, any detailed regulation of their internal operations. That includes forgoing efforts to restructure and redistribute authority and actions that would increase the centralization of power and authority in the university at the expense of faculty self-government and professional assessment of faculty qualifications. Care should be taken to avoid, through federal regulation, a weakening or displacement of the faculty system of professional decision making on faculty staffing by insistence on the application to faculty of personnel-management techniques based on an industrial model. Unintelligent, dysfunctional regulation along those lines is likely to hamper universities in the most effective pursuit of their educational and research goals over the long run. 5 In the enforcement of equal opportunity for all faculty, due recognition should be given to the primacy of the basic objectives-the mission-of a major university, namely: (a) The discovery of important new knowledge (b) The cultivation, through faculty instruction, of an understanding of |