On December 4, 1971, the U.S. Department of Labor issued what was known as "Revised Order No. 4," setting out its guidelines for evaluating the affirmative action plans of non-construction federal contractors, including colleges and universities. The rules were scheduled to take effect three months later, and in the meantime, University administrators began reviewing their potential impact.
By the time this article appeared in the Detroit News, one of Michigan's largest newspapers, University officials had apparently focused on language they had missed in their early reviews: "Worker specifications" were to be validated on job performance related criteria. "Neither minority nor female employees should be required to possess higher qualifications than those of the lowest qualified incumbent."
The tone of the article suggests that the universities were still pushing back at the government requirements, which HEW, the Labor Department's agent, was now going to impose on ten universities that had become the focus of its enforcement activities. The universities' new tactic was to argue that the government was trying to force them to hire minorities and women who were not qualified for their jobs.
The article quoted unnamed University of Michigan and HEW officials, but no woman who had been involved in the ongoing controversy. Jean L. King, who had filed the original complaint against the University, had worked with women reporters from The Detroit Free Press, The News's major competitor, to get her side of the story told.
Years later King still pointed to this quotation from one of the U-M administrators: "If HEW is really serious about enforcing that requirement, it would be disastrous. You can imagine the havoc it would wreak in the Department of Surgery, for instance." (see Document 8)
In a later story, HEW's John Hodgdon said he had been quoted incorrectly, and that the University, as a public rather than a private institution, was subject to the "spirit" and not the "letter" of the order, which was geared to private federal contractors. But Hodgdon said universities were expected "to make a strong effort to locate women and minorities for positions."
Hodgdon said the episode underlined the need for better communications between the University and HEW: "We'll have to start talking to each other and not talk through newspapers."
HEW Cuts Faculty Quality, Colleges Fear
By JOHN E. PETERSON
News Higher Education Writer
The federal government has ordered the University of Michigan and nine other major U.S. universities to hire women and minorities for faculty posts even though they may be less qualified than other applicants.
A growing number of educators have expressed concern that the requirement violates the educational integrity of universities and could drastically lower the quality of instruction. Most, however, have been reluctant to speak publicly because the government has withheld funds from schools which failed to comply with previous "affirmative action" demands.
The requirement is in a revised set of "affirmative action" guidelines provided to the universities last month by the Department of Health. Education and Welfare's (HEW) Office of Civil Rights.
It calls for the schools to give hiring preference to women and minority applicants who have qualifications higher than the least qualified member of any department which has a job opening.
"We're interpreting this as requiring universities to reject male and nonminority applicants who might have better credential than female and minority applicants so long as the latter have qualifications better than the least qualified person presently employed by a department," said John Hodgdon, HEW's Midwest civil rights director.
The requirement did not come to the attention of U. of M. officials until last week because it was buried near the end of the 10-page document.
While disturbed by the implications, U. of M. officials say they want further time to study it before making a public statement.
"But I don't see how it can be applied to institutions of higher learning without seriously diluting the quality of teaching," a U. of M. official said privately.
"Almost every department here has one or two persons with very low qualifications who may have been hired years ago when there were acute teacher shortages." he said. "While some of these people may give an occasional lecture, most serve as assistants or researchers."
Another U. of M. administrator said:
"If HEW is really serious about enforcing that requirement, it would be disastrous. You can imagine the havoc it would wreak in the Department of Surgery, for instance."
Hodgdon, whose HEW office in Chicago has jurisdiction over the U. of M's "affirmative action" program, doesn't see the requirement as lowering academic quality, however.
"We're certainly not telling universities to hire unqualified faculty," he said. "But we feel they must give preference to women and minorities if they have hired less qualified persons in the past."
A HEW spokesman said the 10 universities, including Columbia and Harvard, were selected for initial enforcement of the requirement "because we have a very limited staff and we figure that if the more prestigious schools comply, the others will fall in line."
Eventually, he said HEW will enforce the requirement at more than 2,000 universities and colleges that have federal contracts.
Even before the revised order was issued, HEW came under sharp attack from increasing numbers of U.S. educators for the tactics it has used to enforce the "affirmative action" program.
The critics contend that HEW has set itself up as the sole judge of whether universities have discriminated in employment arbitrarily found them guilty and then withheld federal contracts to force compliance with "affirmative action" goals.
HEW officials concede they already have held up nearly $100 million in federal contracts at 10 schools, including $13.8 million at Columbia, $7.5 million at Michigan and $3 million at Harvard.
But they insist that such methods are necessary to correct the present imbalance of women and minorities on university faculties.
"If we hadn't stepped in with vigorous enforcement methods, nothing would have been done." Hodgdon said.
Sidney Hook, a professor of philosophy at New York University and a life-long civil libertarian, disagrees.
"Few educators have ever disagreed with the ‘affirmative action’ program's basic goal of placing more women and minorities on the nation's faculties," he said.
But the vital issue, as Hook and others see it is the threat to the previously sacrosanct concept of academic freedom.
"They have completely disregarded the all-important criterion of qualifications or requisite skills." Hook said, "and assumed that what may be a legitimate inference in considering the presence or absence of discrimination in hiring individuals for an assembly line . . . holds for all levels of university instruction.
"In effect, what HEW has done is to go to university presidents and say: ‘Look, women comprise more than 50 percent of the population and you have only 10 percent on your faculty. Therefore, you are guilty of sex discrimination.’"
J. Stanley Pottinger, head of HEW's Office of Civil Rights, admits that HEW regional directors have instructed universities, in making faculty appointments, to give weight in other than professional qualifications, and to establish numerical goals and timetables to realize them.
"This has been necessary," he said, "because of years of neglect by the universities. But I don't think this constitutes a quota system."
To meet these directives, many administrators claim they must hire unqualified or marginally qualified prsons.
In addition to withholding federal contracts and establishing quota systems, HEW also has advised some universities to make specific changes in graduate school curriculum in order to ease the way for the hiring of persons presently unqualified by professional experience.
HEW has been empowered to investigate complaints of discrimination at universities and colleges since late 1968, when former President Lyndon B. Johnson signed an executive order creating the "affirmative action" program.
The order, mandated by the civil rights act of 1964, outlawed discrimination against individuals on the basis of religion, race, sex and national origin in the area of federal employment.
Although the law was on the books, HEW received few complaints from campuses until 1970, when several feminists groups discovered and realized its potential.
One of the first "class-action" complaints was lodged against the U. of M. in May, 1970 by an Ann Arbor women rights group called FOCUS. In mid-August of that year, a contract compliance team from HEW visited Ann Arbor to hear the complaints, but found "no overt discrimination on the basis of sex."
It returned the following month for further investigation, however, and on Oct. 6 President Robben W. Fleming received a letter from HEW giving the U. of M. 30 days to submit an "affirmative action" program. Fleming requested a formal hearing.
Don F. Scott, a civil rights specialist in HEW's Chicago office, told Fleming that the U. of M. wasn't entitled to a hearing as long as HEW did not order the cancellation of any federal contracts.
HEW did not cancel any federal contracts, but a few days later it advised six federal agencies to withhold federal contracts to the U. of M. totaling $7.5 million.
The result, according to U. of M. officials, was tantamount to actual cancellation since it held up numerous projects and left scores of researchers without work. About 75 percent of the university's research work is sponsored by federal agencies.
A few weeks after federal contracts began to be withheld the U. of M. agreed to comply with HEW's request for an "affirmative action" program but university officials said HEW failed to specify exactly what "affirmative action" goals were desirable.
HEW ordered the U. of M. however, to achieve a ratio of female employment in academic positions "at least equivalent to their availability as evidenced by applications for employment by qualified females for these positions."