Mr. PHILIP J. DAVIS,

FREED-HARDEMAN COLLEGE, Henderson, Tenn., October 16, 1974.

Director, Office of Federal Contracts Compliance, U.S. Department of Labor, Washington, D.C.

DEAR MR. DAVIS: We were very pleased to see in the Federal Register of March 29, 1974 the proposed exemption for religious entities reading:

"CONTRACTS WITH RELIGIOUS ENTITIES

"The requirements of the equal opportunity clause shall not apply to a religious corporation, association, educational intitution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational intitution, or society of its activities."

As noted, this proposal was "intended to establish consistency between the religious exemption provisions of section 702 of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and the rules and regulations of the Office of Federal Contract Compliance."

On a recent trip to Washington, I learned that the proposed exemption has not been adopted and that consideration is being given to revising it so as to exempt only personnel employed for specifically religious functions of the organizations. This possible limited exemption would be most unsatisfactory. Congress has not prohibited religious entities, including religious educational institutions, from considering religion in the employment of personnel because it is clear that such a prohibition could change the fundamental character of such entities, even to the point of eliminating their reason for being.

Equality of educational opportunity in America includes the opportunity to choose a private college with particular values, traditions, and convictions. The diversity so widely acknowledged to be a virtue of American higher education (albeit one diminished and threatened by homogenizing inflences) is realized through public institutions, secular private institutions, and religiously-oriented private institutions (whether or not under the control of a particular church). Should such colleges be required by regulation to disregard the presence or absence of religious convictions (or hostility to religion) in the employment of administrators, faculty members, counselors, and dormitory personnel, they would find their influence diluted and the distinctive character which attracts students to them diminished. The institutions' demise would not be unexpected. Permitting consideration of religion only in the selection of a few persons such as chaplains or religion faculty would not preserve the institutions. Some institutions would, in fact, be subject to loss of their facilities because of deeds, charters, and bequests which relate to their commitments.

Freed-Hardeman College is an independent Christian college governed by a self-perpetuating board of directors. It does not discriminate on the basis of race, sex, or religion in the admission of students or their opportunities. It does not exercise preferences on the basis of sex or race in the employment of personnel. This is all the law requires or should require.

If Executive Order 11246 as amended by Executive Order 11375 requires that no consideration be given to religion (sectarian, irreligious, antireligious, nonreligious, or non-Christian convictions) in the employment of personnel, the executive orders should be amended, the regulations should exempt religious entities as proposed, or Congress should provide an exemption by law.

A member of your staff with whom I talked (and who was very helpful and understanding) said "at this time" there is no plan for goals and timetables. The specter of requiring religious entities to establish goals and timetables for integrating into their staff employees of varied religions and nonreligious persons in proportion to their presumed distribution in the general population (even as a future possibility) is most disconcerting.

Freed-Hardeman College is not a federal contractor, and it is unlikely to seek contracts until or unless this matter is resolved. The exemption should be clearly

applied to contractors, grantees, institutions enrolling aided students, and entities holding tax exemptions or eligible to receive deductible contributions.

I was told that while the deadline for comments was past, comments would be considered while the matter is pending. We are most anxious to know of any developments related to the proposed exemption.

Sincerely,

J. D. THOMAS, Academic Dean.

Milwaukee, Wis., October 18, 1974.

DEAR REPRESENTATIVE O'HARA: I read with great approval of your subcommittee's investigation of the effects of affirmative action in academia. I would like to offer a few thoughts.

I have studied for ten years in preparation for an academic career. Now I find it blocked, and even auxiliary careers, such as educational administration shut off, from me due to the accident of my birth. I find it hard to accept that all of the sacrifices I have made are supposed to be washed away simply because someone in Washington feels guilty about America's past.

Affirmative Action will garner only hostility as a dwindling number of positions are competed for and the competent denied due to the fact they are white males. Inevitably, extremist politics will take hold, and all the vaunted gains for blacks and women will be repealed.

I am opposed to bias of all kinds, including that practiced against white males. I hope you will be too. End affirmative action now.

Sincerely yours,

JAMES L. JABLONOWSKI,

STATEMENT BY NELLIE M. VARNER, DIRECTOR, AFFIRMATIVE ACTION PROGRAMS, THE UNIVERSITY OF MICHIGAN

AFFIRMATIVE ACTION: A TIMELY NEW MANAGEMENT TECHNOLOGY

In the two years that I have served as an Affirmative Action Officer at the University of Michigan, I have come to believe that, beyond altruism, affirmative action has a lot to recommend its survival in the competitive marketplace of public policies. I would like to share some of my thoughts about it with you in the next few minutes.

I invite you to consider affirmative action as a timely new management technology which lends itself to the handling of an array of problems faced by colleges and universities in a period of financial austerity, pressures for change and the need to be accountable for the efficient use of resources. I believe that it would be a concept with intrinsic merit as a modern administrative instrument even if Federal regulations were repealed. Affirmative action policies are programs for institutional change. They offer a means whereby institutions can effectively manage and accommodate that change rather than being controlled by it. As presidents of colleges and universities, you are the chief change agents in your institutions. You have the leadership responsibility for implementing institutional change.

It was not until the enactment of the Executive Order 11246 six years ago and the passage of the Higher Education Amendments of 1972 that Federal regulations in the area of equal employment reached back (I deliberately say "reached back" rather than "caught up with") and brought higher educational institutions under the requirements to contribute directly to the social goals of equal employment opportunity. Unfortunately, as is so often the case when institutions encounter late demands for social responsiveness, they react rather than take the initiative. In this climate, the quest for equal employment opportunity in higher education became a prism of negative perceptions: quotas, preferential treatment for women and minorities, compromise of excellence, plans, timetables and endless government interference. The protected groups, too, have begun to view affirmative action through cynical reactionary eyes as tokenism, game playing and insincere efforts carried out under the threat of compliance rather than a commitment on the part of administrators to equal opportunity and a willingness to participate in the solution of social problems. In fact, affirmative action, more often than not, has come to be viewed by management as the problem rather than as the solution. However, I offer for your consideration several areas in which affirmative action can serve management as a

positive problem-solving mechanism. These are personnel administration, institutional planning, organizational goal setting and management accountability.

Let's examine affirmative action as a new personnel technology. It is not just a device for bringing excluded groups into the system. It is a means of making personnel systems fairer and more objective. Strictly from the standpoint of management accountability, affirmative action's demand for more open recruitment and selection procedures ought to be welcomed improvements for the unaccountable, inaccessible, patronizing "old boy network". In a period when institutions must be able to explain and account for their utilization of resources, it is difficult to justify the waste of human resources. To reject women and minorities and restrict one's search for talent to less than one-half the population, namely, that portion composed of white males, is profligate. Institutions of higher education have the task of certifying knowledge and skills. It is appropriate for them to review their own occupational categories. If such reviews eliminate arbitrary requirements unrelated to job performance, unfair credentializing and indiscriminate linking of degrees with jobs, this cannot help but result in greater utilization of employee talent. We can rely on rigorous peer review to maintain excellence in our faculties. However, in a period of declining enrollments, budgetary cutbacks, a surplus of Ph.D.'s and a concentration of tenured faculty, merit is not the sole ground for granting or denying promotion. Consequently, a clarification of standards and criteria for promotion-integral requirements of affirmative action-is needed to make the best judgments for both the individual and the institution. And, in the last analysis, it is just plain good management to conduct a self-audit, to review and identify employment practices which have discriminatory effects before the Federal government intervenes with the prospect of costly litigation, back pay awards, court imposed goals and timetables and changes in employment practices.

Planning is another modern administrative requirement for which affirmative action can be an effective instrument. An essential part of affirmative action is the planned, engineered access of members of protected groups into the institutional mainstream. Affirmative action has been criticized for subverting the ends by the means in placing institutions at the mercy of data analysis and the numbers game. However, I submit that planning is a creative, enlightened, efficient and accountable way to orchestrate and accommodate change. The questiom is not whether plans and timetables are needed, but how to best utilize the opportunity that their necessity presents to implement the change mission of the organization. For example, affirmative action programs require availability data, needs analyses arrived at through a systematic examination of attrition, determination of workforce pools in terms of numbers and skills and the assessment of employee potential for career development and upgrading. These studies cam provide a reliable base for decision-making about an organization's use of human resources. Computer analyses of appointments, promotions, retirements and turnover can project future profiles of the entire workforce on the basis of past and present distributions and project needed rates of progress toward the fulfillment of employment goals. Whether we call it "affirmative action" or by some other name, it appears to me that as the executives of complex educational enterprises, you would not wish to consider the consequences of alternative policies in the absence of such information.

Planning seems to imply greater control, and in an educational environment autonomy and decentralization are sacrosanct. However, the participatory bureaucracy which characterizes academic governance has never been noted for its efficiency; and if greater central planning and control are inherent in affirmative action, then, affirmative action is a healthy mechanism for challenging an institution's accustomed practices. Additionally, it affords an opportunity for administrators to draw on the academic tradition of "governance by consultation" to operationalize one of the basic axioms of the managerial grid: effective managers get things done through people. Affirmative action goals and objectives are more likely to be achieved when line supervisors help set them and have knowledge of their stake in the outcome. Thus, institutional leaders can strive to achieve total involvement from top-management down, in the commitment to equal opportunity. Such involvement not only conveys to the organization that the leadership is serious, but also enhances accountability by making each unit accountable for contributing its share. Moreover, administrators can be appraised in terms of their success in achieving affirmative action goals just as they are evaluated on their ability to reach other important objectives. In such a climate, affirmative

action monitoring, which has so often been the object of criticism, becomes a useful tool for assessing the goal achievement process. It is inconceivable that university presidents, like all good executives, would not want to keep track of what is happening in their organizations.

I would like to conclude by challenging you as presidents in higher education to take the leadership in implementing the creative management techniques that are embodied in affirmative action processes. This leadership entails shifting the thrust of higher education's response to affirmative action and equal opportunity. Instead of reaction, complaint and criticism, let's turn to creative implementation. If we will concede that the government may have asked the right question, namely, "Are the goals of affirmative action just?" but may have provided the wrong answers with respect to some procedural and due process matters; then it is the responsibility of higher education to inform government of what will work. If we do not want the government intervening and interfering like a thug coming in from the cold, both literally and figuratively, we must make affirmative action work for ourselves. And we can do it. As presidents, you head the greatest talent pools in this country. Let's unleash this talent to help our institutions meet their social needs with respect to equal employment opportunity. It simply makes good administrative sense.

Hon. JAMES O'HARA,

RUTGERS UNIVERSITY,

New Brunswick, N.J., October 28, 1974.

Chairman, Special Subcommittee on Education, U.S. House of Representatives, Washington, D.C.

DEAR MR. O'HARA: Enclosed you will find a critique I have prepared of Richard Lester's book Antibias Regulation in Universities. I would appreciate it very much if you would insert this report in the written record of the hearings you have been holding on anti-discrimination legislation in education.

I am an Associate Professor of Spanish and Associate Dean of Rutgers College, Rutgers-The State University. I am also past president of the New Jersey Division of the Women's Equity Action League and past head of the National WEAL Education Committee. The views expressed in the enclosed paper are my own, not necessarily those of the above institution and organization, which I have mentioned for identification purposes only.

I would appreciate it very much if you would send me a copy of the hearings when the printed record becomes available.

Sincerely,

Enclosure.

PHYLLIS Z. BORING,
Associate Dean.

ANTIBIAS REGULATION OF UNIVERSITIES: A BIASED VIEW?

(By Phyllis Zatlin Boring)

The recent publication of Richard A. Lester's Antibias Regulation of Universities: Faculty Problems and Their Solutions (McGraw-Hill, 1974) and the discussion that it has generated are reason enough to examine once again the issue of affirmative action in higher education. As former Dean of the Faculty of Princeton University, Lester has impeccable credentials. His book, sponsored by the prestigious Carnegie Commission on Higher Education, appears authoritative even though the Commission does not necessarily endorse its contents and Lester does, in fact, disagree with the Commission's own findings. Given the reputation of author and sponsoring organization, Antibias Regulation of Universities has already become a powerful weapon in the backlash arsenal. This is unfortunate for two reasons. The number of excellent proposals Lester makes in the book are being overlooked by those who delight in the attack on affirmative action, and the unsupported assumptions upon which that attack is built are being accepted as undisputed fact.

A scholarly work, Lester's book contains a good bibliography and numerous footnotes, thus giving the impression of thorough research and objectivity. But the study is not objective, and the conclusions are all the more dangerous because the bias in the work is subtle. The whole analysis of the university situation is structured on some shaky premises. Lester writes from the standpoint of the handful of prestige universities, but his title does not indicate that his position, if it is valid, probably does not apply to the majority of institutions

of higher education in the country. He indicates that he interviewed adminstrators and faculty at twenty universities before writing his book, but he fails to identify the institutions. Did his selection of administrators and institutions prejudice the outcome of his findings? Two years ago, in addressing the New Jersey State Conference of AAUP Chapters, Lester made statements almost identical to those in his book; did he perhaps reach his conclusions before all the evidence was in? Lester assumes that those who criticize higher education do not understand the system, apparently not realizing that Uncle Sam was called onto campus in the first place by those already there. He also assumes that in the democratic procedures used in hiring and promotion, only merit is taken into consideration. If women are promoted more slowly than men or paid less than men, it follows logically that they are less meritorious. Except for one fleeting reference, Lester never acknowledges that differential treatment of women and minority faculty could be the result of prejudice.

The ultimate solution that Lester proposes includes an in-house arbitration system for grievances. Instead of going to governmental agencies, a faculty member who felt that he or she had been illegally discriminated against could bring the case before a panel of arbitrators, specially trained for settling such disputes, and could receive more informed and speedier action than might come from HEW. The proposal is an interesting one and should be studied by an organization such as AAUP. The system would not, in fact, be substantially different from AAUP's own Committee A, which has successfully settled differences between faculty and administration for many years. Universities would prefer to have such grievances reviewed by people with firsthand knowledge of higher education, and individual complainants, who now sometimes have to wait for years before their cases are acted upon would probably also benefit. The proposal is a positive one, which merits discussion and study, as are other suggestions from Lester. He recommends internal data collecting--perhaps more efficient than what now takes place in many universities-and he further recommends that junior faculty be advised periodically on their progress so that they will know what is expected of them.

What Lester does not point out is that, if higher education had set up such machinery and had been willing to listen to complaints of discrimination in the first place, there would have been no need to resort to HEW. And that brings us back to one of the fallacies in his argument.

Executive Order 11246, as amended by 11375, went into effect in October, 1968. No college in the country paid any attention to the non-discrimination clause on their federal contracts. No HEW investigator knocked on any administrator's door. Academic women who stood up at that time and talked of discrimination were laughed at. As Dr. Bernice Sandler of the Association of American Colleges has said, the most concrete result that has come from affirmative action efforts across the country has been the realization that discrimination does exist. The people who demanded government reviews of campus hiring and promotion practices were not uninformed outsiders; they were academic women who found that they had to fight the system to survive. Only after women's groups put pressure on Congress to put pressure on HEW and the Labor Dept. did Uncle Sam make any effort to enforce the executive order.

Lester criticizes HEW, as well he might. He says that compliance action varies from region to region and even from investigator to investigator. He says that HEW has failed to act on many of the affirmative action plans presented to them. And certainly this is true. Although Lester approaches the problem from a different perspective than do women's rights groups, the conclusions are the same. HEW has not been doing a very good job. The Women's Equity Action League (WEAL), which filed the majority of the class complaints under the executive orders, has, in fact, called periodically for an investigation of the investigators. Understaffed, underfunded, and under political pressure, HEW has accomplished very little for women and minorities. When claims of reverse discrimination started trickling in. HEW put a full-time investigator to work on them; in the meantime all individual complaints from women and minorities were referred to EEOC and put on the back burner. where many of them remain. Lester may feel that HEW is destroying higher education, but women's groups are still waiting for them to show some signs of life.

The Rutgers University situation is illustrative. A class complaint on behalf of all women faculty throughout the university was referred to the New York regional office in April of 1970. (This is the same office Lester has dealt with in his capacity as dean at Princeton.) The file is still open. The investigation has never been completed, the plan has never been approved, the findings have never