diverges from a meritocratic system that is not itself required by justice, then the preferential practice is probably not unjust.12

It is not without costs, however. Not only does it inevitably produce resentment in the better qualified who are passed over because of the policy, but it also allows those who would in any case have failed to gain a desired position on the basis of their qualifications to feel that they may have lost out to someone less qualified because of the preferential policy. Similarly, such a practice cannot do much for the self-esteem of those who know they have benefited from it, and it may threaten the self-esteem of those in the favored group who would in fact have gained their positions even in the absence of the discriminatory policy, but who cannot be sure that they are not among its beneficiaries. This has led some institutions to lie about their policies, or to hide them behind clouds of obscurantist rhetoric about the discriminatory character of standard admissions criteria. Such concealment is possible and even justified up to a point, but the costs cannot be entirely evaded, and preferential policies will be tolerable only so long as they contribute to the eradication of great social evils.

V

When racial and sexual injustice have been reduced, we shall still be left with the great injustice of the smart and the dumb, who are so differently rewarded for comparable effort. This would be an injustice even if the system of differential economic and social rewards had no systematic sexual or racial reflection. And if the social esteem and economic advantages attaching to different occupations and educational achievements were much more uniform, there would be little cause for concern about racial, ethnic, or sexual paterns in education or work. At present we have no way of divorcing professional status from social esteem and economic reward, at least not without a gigantic increase in total social control, on the Chinese model. Perhaps someone will discover a way to reduce the socially produced inequalities

12 Adam Morton has suggested an interesting alternative, which I shall not try to develop: namely, that the practice is justified not by social utility, but because it will contribute to a more just situation in the future. The practice considered in itself may be unjust, but it is warranted by its greater contribution to justice over the long term, through eradication of a self-perpetuating pattern.

(especially the economic ones) between the intelligent and the unintelligent, the talented and the untalented, or even the beautiful and the ugly, without limiting the availability of opportunities, products and services, and without resort to increased coercion or decreased liberty in the choice of work or style of life. But in the absence of such a utopian solution, the familiar task of balancing liberty against equality will remain with us.

Senator HATCH. Our last witness today will be John Bunzel who, as with Professor Sowell, is a senior fellow at the Hoover Institution at Stanford University.

He has taught political science at Stanford, Michigan State University, and San Francisco State College.

For 8 years, until 1978, he was president of San Jose State University in California.

President Bunzel is the author of numerous books on American public policy issues, as well as a large number of articles and essays on affirmative action.

An article by President Bunzel appears recently in the New Republic on the subject of school busing. This article was the subject of animated discussion in this subcommittee several weeks ago.

We are very happy to have you here, and we look forward to your testimony.

STATEMENT OF JOHN H. BUNZEL, SENIOR FELLOW, HOOVER
INSTITUTION, STANFORD UNIVERSITY

Dr. BUNZEL. Thank you, Mr. Chairman.
That is a very generous introduction.

I first became interested in the issue of affirmative action in my last life, as you pointed out, as a university administrator in the early 1970's.

I soon discovered that how I thought about affirmative action was almost as important as what I thought.

I have always been uncomfortable when I have been surrounded by simplifiers, because for better or worse, I suppose, I am a complexifier.

Senator HATCH. That is not unusual in the academic community I understand.

[Laughter.]

Dr. BUNZEL. No, but not always are complexifiers easily understood either in the academic world.

I used to be told, for example, that affirmative action-and I still hear this argument-is an attempt merely to make up for our past sins as a racist society.

Then would follow the rather familiar idiom that echoed Stokely Carmichael: If you are not actively with us, you are against us. I go back to an earlier statement that I believe you, Mr. Chairman, made at the opening of this session. It depends a great deal on which affirmative action you are talking about.

I appreciate Professor Nagel's comments this morning, because he certainly is trying to discuss in his terms strong versus weak affirmative action. While I have differences with him, I thoroughly understand and appreciate the emphasis that he brings to this discussion.

Whether one is for or against affirmative action, that kind of approach simply is insufficient.

When applied to the academic world, I found that the moral absolutism of this simplistic characterization simply denied legitimacy to complicated and inevitably vexing questions.

I still think that it does.

One of the very wise observers of the human scene, Prof. Paul Freund, who has just recently retired from the Harvard Law School, used to warn against the doctrinaire in his beliefs-the fanatic who holds to absolutes, whether that absolute is liberty and nothing else, equality and nothing else, or truth and nothing else. He liked to quote Lord Acton's statement that an absolute principle is as absurd as absolute power.

Professor Freund's rule is simple and clear. When you perceive a truth, look for the balancing truth.

I think the rule applies in this whole area of affirmative action and equal protection.

The issue of affirmative action, at least so far as I am concerned, is not righteousness or moral virtue but is one of competing and legitimate values and, may I add, their relationship to many practical problems.

I want to say that my approach to affirmative action is based on a conflictual model. I see it frequently presenting a collision of rights and a conflict of principles.

The important question, of course, is how to balance one's obligations.

I have also found that many of the assertions and assumptions about affirmative action, frequently addressed in the language of right principle, need to be tempered by opposing and equally compelling considerations.

Thus, many people claim that the problems of minority groups in this country are the consequence of widespread discrimination. Their solution is more energetic and single-minded enforcement of Federal affirmative action regulations, which require equal representation of certain minority groups in Federal and other employment, as beneficiaries of Government programs.

However, many of the problems of minority groups are no longer the results simply of present discrimination. Today discrimination against blacks or Hispanic Americans in employment is diminished and is not of much real consequence in the area of access and equal opportunity in education.

Yet if these problems are treated as if they are simply problems of discrimination, the result may turn out to be the imposition of quota remedies, which in turn will bring about a decline in efficiency of services and in the morale of employees and, most seriously, a damaging effect on the motivation and self-respect and capacity of minority group members.

These are points which Prof. Nathan Glazer, among others, has made very often and with considerable eloquence.

Another proposition frequently heard is that as a society, we need to remedy past educational, economic, and cultural injustices to the disadvantaged and minorities. It is an imperative priority. However, higher education must not adopt unjust or undemocratic means to achieve these laudable goals.

Many affirmative actionists say that our colleges and universities should move at once to bring about a statistically acceptable representation of women and minorities on their faculties.

Some even go so far, as I remember in my days as an administrator, to say that the way to bring this about is simply to put them there.

The cause of low representation of, say, blacks and Hispanic Americans, among college and university faculties, is not simply the result of discrimination and is not the result of invariable discrimination. An important reason is limited supply.

We are told statistics do not lie. Blacks, Hispanic Americans, and other minority groups are not heavily represented on university faculties.

However, the same statistics by themselves do not tell us why. The idea that one can legitimately and always infer discrimination from a discrepancy between the ratio of minority members employed to the total number employed and the ratio of the minority members to the total population is simply, in my judgment, inappropriate for institutions of higher education.

What needs to be done, Mr. Chairman, to deal with this situation is to get black and Hispanic youngsters to take math and science courses, rather than social sciences and ethnic studies.

Less than 3 percent of doctoral degrees in this country go to blacks. Sixty percent of those are in education.

One reason Asian American minorities have forged ahead in recent decades in getting good jobs and higher incomes is because they have concentrated in the sciences, mathematics, engineering, and architecture, even when they faced severe discrimination.

We are reminded and told that Government enforcement agencies have a right to determine whether or not contractors with the Government, including universities, are in compliance with Federal affirmative action regulations.

However, a college or university must not compromise the right to make its own academic decisions regarding hiring, tenure, and promotion, based on professional judgments about intellectual capacity, scholarship, and teaching ability.

Nor is it enough for some affirmative actionists to talk in terms of universities not having to select unqualified persons over qualified ones. That is not the real question.

The real question is whether affirmative action compliance investigators are willing to assure a university that having canvassed widely and having nondiscriminatory applicant pools to consider, it is completely protected in choosing the best-qualified person.

Are these compliance officials prepared to give the kind of public assurance of what would make it impossible in advance for a university or Government agency to predict what the categoric group composition of the total of such new appointments might turn out to be.

I realize that the issues I have raised here do have a rather specialized focus. The truth is that they touch on questions of public policy that are of growing interest to the American people. In my judgment, they are among those that should be addressed by Congress.

You mentioned earlier that this committee is to be concerned with philosophical and constitutional questions.

In my own thinking, every time I wrestle with the many complex problems of affirmative action, I realize that I am dealing, among other things, with the very complex and complicated problems of defining what equality really means.