With this memo to the university's top officials, Fleming signals a change in strategy and the urgency with which he now regards the situation. It appears that Fleming may have typed the memo himself, providing instructions to his colleagues because he was about to head out of town. (Unless he prepared the memo after midnight, the date is confusing on that point, because December 7, 1970 was a Monday.) Fleming, a labor relations lawyer, also attached his proposed draft of how the University's response should read, not included here because it closely tracked Document 25 below.
In the memo, he appears to have modified his position somewhat: "I not only do not oppose an equal-treatment-for-women policy, I think it is desirable." However, he asserts that he still has major objections to some of HEW's requirements. He proposes a strategy under which the University will respond to the regional officials, but will also send a telegram to HEW Secretary Elliot L. Richardson, trying to buy more time before HEW holds up additional contracts and seeking the help of top officials in resolving the University's points of contention.
To: The Executive Officers
From: R. W. Fleming
Subject: HEW Report
Date: December 7, 1970
Now that we have the Chicago wire from HEW we are going to have to move fast. I have to be in Chicago for a Big Ten presidents meeting Monday, hence I am asking Fedele[A] to circulate this to you tomorrow. Perhaps you all can find time to meet so that on Tuesday morning we can decide quickly how to move.
My general thinking on the subject is this: I not only do not oppose an equal-treatment-for-women policy, I think it is desirable. However, I have four problems with the substance of what the Chicago office proposes:
1. It seems to me an enormously burdensome and inefficient procedure for us to have to go through all our files to see if we cannot find someone who has been discriminated against. It would be a much more logical and quick procedure to invite the filing of grievances by anyone who contends that he has been discriminated against. Then we could get right down to cases without hours and hours of effort on cases which will turn out to be unrpoductive. Nevertheless, I would be prepared to go as far as the draft which is attached suggests in offering to go through our own files. Perhaps our own personnel people do not feel that this will be as burdensome as I do.
2. Though I have not seen their legal memorandum, I think it very dubious that we are required to pay back-pay for two years. We ought at least to check when we signed our first contract after the new executive order was signed. Until at least that date, I would assume there is no liability on our part.
3. More than anything else, I believe a dangerous principle is involved in HEW's assertion of jurisdiction over admission to the Ph. D. programs.
4. The measuring stick which they propose for faculty recruitment - "a ratio of female employment in academic positions at least equivalent to their availability as evidenced by applications for employment" - is wholly unrealistic and unworkable.
In trying to think out how to proceed with this, I have drafted what might be a reply, via wire, to the Chicago office. My thought would be to simultaneously wire
[p. 2]Secretary Richardson, asking for an appointment on either Thursday or Friday of this week with his top Civil Rights enforcement man and one of his top education people (perhaps Peter Muirhead)[B]. I think someone from education is essential because the enforcement people obviously know nothing about a university.
The wire to Richardson would seek, as the purpose of the meeting, a 30 day moratorium on their contract hold-ups while we negotiate, and some Washington in-put into the troublesome points which I have raised above.
It seems to me that we cannot be in the position of not answering Chicago before we seek Richardson's intervention, but on the other hand, we cannot rely on a meeting with Chicago since it is apparent that they get all their real input from Washington.
After a wire goes to Richardson, I would follow it with a call to Muirhead, whom I talked with on Friday by phone in Washington, and perhaps by a phone call from Wilbur Cohen[C] to Richardson saying how urgent this was to us. My talk with Muirhead came before I knew that the wire was coming here Saturday. He was sympathetic when I talked about a 30 day moratorium.
Since time is of the essence now, will you all please think about and discuss this on Monday. I will talk with Dave Henry[D] in Chicago to see what they are going to do. Then on Tuesday morning, this may have to be the principal item on the EO agenda.