"AFFIRMATIVE ACTION" is a governmentally required positive effort, beyond elimination of discrimination, to seek out and employ persons of groups that have been discriminated against. It is a requirement now imposed on all Federal contractors, which includes almost all employers. Now required as part of a program of affirmative action are "goals" and "timetables"--how many of each protected group the employer hopes to add in a given period of time. The failure to reach a goal in a given time will not necessarily be considered evidence of discrimination if the contractor can show "good faith" efforts to reach the goal. All Federal contractors--and that includes almost all universities--must have affirmative action programs.
There is no reason why the principle of affirmative action should not apply to the admissions practices of institutions of higher education--they are also prohibited from discriminating--and goals and timetables imposed on them, too, though up to now that has not been done. Thus I consider not only the special problems of the use of goals and timetables to hasten the employment of faculty in universitites and colleges, but the validity of this approach in general, for all employers, and for the processes of admission to institutions of higher education.
1. Is affirmative action justified as a means of overcoming the effects of past discrimination? Yes. Discrimination in employment and admissions is banned by law and condemned by public opinion, but is the elimination of discrimination sufficient, in law and in morality, as a response to the discrimination of the past? On the whole it is not. Even leaving aside the difficult question of payments for past discrimination to those hurt by it or those who stand for them, it is necessary to undertake more than the elimination of discriminatory practices. Those discriminated against should be informed, and for the purpose they should be sought out actively, that they are no longer discriminated against. Special efforts should be made to encourage them to apply for employment and admissions--they should be recruited in schools and areas where a given group is prominent, advertisements should be placed in the media that reach them. Special programs of training and of remedial work if necessary should be instituted for them. All this is included in the concept of affirmative action. But more is also now included by government--and that is the problem.
2. Are quotas justified as a means of overcoming the effects of past discrimination? No, even though some courts have required quota employment and the government insists that goals and targets, as required in affirmative action plans, are not quotas. Why aren't quotas a good way of overcoming the effects of past discrimination? The main reason is that it would divide the American people--more than they are now--into ethnic-racial-religious compartments, determined by law rather than by any act of voluntary choice, and because benefits and penalties would now attach to those compartments. We would thus have the obscene spectacle of people trying to place themselves into and out of the proper categories to receive benefits and avoid penalties. People would try to advance on the basis of group membership rather than individual capacity. This is the principal argument against quotas.
Could we not limit quotas to the single group or groups that have been the objects of official, governmental discrimination? This seems like one possible way of limiting the evils of quotas, but is it really? Blacks are clearly one group that have suffered most from official governmental discrimination. But even they include immigrant blacks who have not suffered from our governmental discrimination. American Indians are perhaps the best candidates. They are after all the only group for whom we still have a legal racial definition. Orientals are considered a good candidate, for they too have suffered official governmental discrimination. However their economic and educational position is now superior to that of the average American. Does the past history of discrimination against Chinese and Japanese mean that the son of a Hong Kong millionaire or an immigrant Japanese physicist should have the benefit of quota employment today? "Spanish-surnamed Americans" complete the list of minorities affected by governmental affirmative action plans. But they include Sephardic Jews, Spaniards, Cubans, Colombians--perhaps an occasional Irishman bearing a Spanish name. Do they all deserve official protection through quotas too? And what of the groups that have never been subject to official and governmental discrimination but who do poorly under our present system--Poles, Italians, and others? Will they not raise claims too under quota admissions or hiring? The political costs and dangers of introducing quotas far outweigh the benefits, for the country as a whole and for almost every individual group.
3. Are goals and targets quotas? Goals or targets must be set on the basis of an estimate of the relevant labor pool for each underutilized group. To find out what is an underutilized group means to compare the employed or admitted with some population percentage. It means finding out whether an employer or college is deficient in this percentage. And it means promising to reach some numerical goal on the basis of the tools of affirmative action. If one fails, it is true one can claim "good faith" efforts. But an administrator can disagree with an employer or college over what was an appropriate good faith effort. The effect of numerical goals up to now is that the employer simply tries to reach the goal, period. Despite the provision in the Civil Rights Act of 1964 that nothing in it is meant to set aside an employer's determination of merit, these have been set aside again and again under reasoning I find difficult to accept. It is safer for an institution to set some goal, and try to reach it.
Governmental examples of goal-setting are not reassuring. Consider the recent Equal Employment Opportunities Commission case against AT&T. EEOC argued, for purposes of setting a goal, that all women in the labor force with high school diplomas should be considered suitable as a recruiting pool for the skilled crafts for AT&T. In rebuttal, AT&T was able to demonstrate that many fewer women than men had taken shop work or certain mathematics courses in high school, leaving aside other indications of both interest and aptitude. The attempt to set up relevant pools from which professors at Harvard are selected is probably impossible. Each tenured appointment is thought of as filling a number of specific needs and the pool of those eligible is very difficult to estimate. The point is: Goals and targets means estimating achievement against some presumed norm, and it means dividing people up for public action into racial and ethnic categories.
4. Does the opposition to numerical goals and targets mean that merit is the only basis on which admission and hiring should proceed? This is the most radical and consistent position of those of us who oppose quotas; it is not my position. I do not think we can insist only on merit in every situation and for all purposes There are two general arguments I accept in the limitation of merit as the sole basis for employment or admissions:
First, a good deal of employment seems to involve very little in the way special qualifications. For example, common laborers employed by the government do not pass a civil service test. If a political machine controls the jobs, the loyal get them. In other circumstances, it may be first come first served. In other cases, because there are so many applicants, test requirements are set very high so as to have a means of excluding some. Perhaps only a lottery is fair. A lottery together with the affirmative action of aggressive advertising and seeking out the previously excluded may be the fairest way. Admittedly the employer of any kind of labor can make distinctions important to him and for the job between applicants. For example, a record of coming in on time may be important. But one can still, in cases where many can qualify, resort to a lottery in employment, avoiding both a hardly meaningful search for the most meritorious on one hand and quotas on he other.
There is a second situation in which the jobs involved or the places to which admittance is sought should have a representative or political character. Consider school principals of a large city. Certainly merit should be a factor in their employment. Should it be the only factor? They must deal with communities and students and teachers and politicians. A representative character should prevail to some extent in their selection. Should their selection then be on the basis of group quotas? No, the best guide to attaining representative character is found in certain features of the political process itself: the balanced ticket, the struggle over who should get a nomination in a specific district, the attempt of political chairmen to select representative committees. One should not have the hard lines of the quota with all its dangers, but there should exist a general commitment that various measures should be taken to achieve representative character.
Should Harvard have a representative character? Yest, it is an entry point to important positions, many with important political characteristic. Harvard should try to have people from different parts of the country, from different ethnic and racial groups. But it should also avoid ethnic and group quotas because of their divisiveness and their inevitable injustice to individuals. Very often one can find a legitimate basis for broadening a pool of applicants by introducing criteria that one knows will reach lightly represented groups--geographical area distribution favoring applicants from low-income groups, or from poor parts of large cities, or from inner-city high schools. The divisiveness of the racial or ethnic quota should avoided, but mechanisms of selection legitimate in their own right can be chosen to overrepresent the underrepresented groups.
There are those areas of employment or admission where merit alone should prevail. The medical school, I would think, is one such area. The training of physicists and, I would argue, scholars of all sorts are other examples. There is simply no way of introducing "representative" character in areas where talent is essential, such as writing novels or playing chess. It may come to pass that most of the novelists are black and most of the chess-players Jews. So be it. One cannot legislate talent, nor should we try to--one simply doesn't set obstacles in talent's way though one can go beyond that to search it out and develop it.
5. Are quotas never justified? Only where we have a conspiracy, explicit or implicit, to discriminate. We had this in the case of blacks attempting to vote and register in the South; we have undoubtedly had it in many situations of employment and admission. One can detect the presence of such a conspiracy when minority candidates are asked outlandish questions, when different standards are applied to minorities and non-minorities. In such circumstances a court is justified in imposing a quota, and a legislature may give authorities power to impose one. Sometimes resistance to discrimination takes so many forms that only rigid numerical rule can overcome it. It is certainly not the situation in the universities.
Nor can we detect such a situation simply by numerical tests. It may be true that the department of astrophysics has no blacks. It may also be true that there are just about no astrophysicists. It may be true that the department of history has no women. It may also be true that historians at the level it seeks include very few women.
I think the real scandal of the present affirmative action guidelines is that the universities of this country have been treated as if they were Southern rural conties. Figures alone have been used to assume discrimination, conscious and unconscious, and universities have been presumed guilty until proven innocent. And innocence has been determined by the willingness to accept goals which in effect are quotas. No university administration has been willing to fight this--they are too dependent on Federal funds and the power is too unequal. But as we see the notion of goals and targets spread far beyond the areas where they might be legitmate, I think it becomes necessary to take a stand. My stand is: Non-discrimination, of course. Affirmative action, yes. Goals, targets and quotas--no