The relevant passage bears repeating although I fervently hope that this language is indelibly etched in the memories of anybody concerned with affirmative action: Nothing contained in this title shall be interpreted to require any employer to grant preferential treatment to any individual or any group on account of an imbalance which may exist with respect to the total number of persons of any race, color, religion, sex, or national origin employed by any employer. In retrospect, we must admit that Senator Smathers was right, prophetically right, about how the act would eventually be used. Unfortunately, he was apparently dead-wrong when he thought that clear language would fix anything. Even the Weber court did not want to take the good Senator and his colleagues at their word. This example should teach us something about putting legislation in place with appropriate safeguards by which to control its ramifications. We should learn that at this time legislators appear powerless, their political skills notwithstanding, in the face of legal strategies that can turn a law that merely prohibits certain action into a law that mandates the same actions. Thus a simple prohibition against racism and bigotry in the workplace and in public institutions was turned into a mandate for quotas, goals, and timetables. Again, the rhetorical question: How was this possible? I hope that I am giving you a clear picture that the legal ramifications of the laws are giving us trouble. Thus it does no good to go back to the law and orders, to look at the language and say that they are good enactments that ring true, and then rest easy, secure in the knowledge that all is right in the Nation with such reasonable and wise laws. Similarly, it does no good to say that affirmative action is a compassionate idea that we all should support without looking at the pernicious nonsense that is promulgated with those laws and orders. What can be done? Today I will restrict my comments to a few ideas on possible remedies of the harm that has been visited on the academy and, by extension, the Nation with these policies. There is no alternative but to return to the proper and original policy of equality of opportunity and justice, the affirmation of color-blind equality of individual rights. This is so very true because much of our difficulties result from the wrong premises of the bureaucrats that equal opportunity is not enough to overcome the evil effects of past discrimination. Indeed, numerous properly conducted studies show that genuine equal opportunity, while its results may not be overnight and while equality of result is never mathematical, does work as well for blacks as it has for whites. What we need is a concentration on more opportunity, not goals and timetables, since it was opportunity and opportunity alone that has brought about the assimilation of disadvantaged groups of the past into the mainstream of our complex society. Only then can we show the racists in our society up for the selfish, dishonest, political radicals that they are. Only then do we have a chance to come to the argument with clean hands. This, in turn, means a return to the proper, Lincolnian traditions of constitutional democracy where rights are a barrier against the omnipotent state and not a subterfuge for the omnipresent state. May I digress just for a moment from the text to again refer to the statements that are often made-I heard them again todayabout the proverbial white males. I mentioned to you that I am a newcomer to these shores from a faraway state in the Balkans. I also remember that at a time the Balkans were suffering under a foreign oppressor when navies guided by people under Spanish surnames were ruling the world. Mr. Chairman, you mentioned the Armenians before who were subjected to many atrocities which should be well-known to every one. All of them can be classified as white males. How come then that I have, in a certain sense, to come to this chamber and be pointed at with a finger as if the myths that are being promulgated about males and whites being always privileged and that others were not are true? I would feel very comforted if at some point some of these thoughts would permeate some of the debates that are later published in the Federal Register or the Congressional Record. I also want to note that some of the most famous court cases of these days, the Bakke, the Weber, and the jailing of Dinnan, are not named by people whom some claim are the victims today. I would rather say that it is people who are the victims of these thoughtlessly expanded regulations are those who have to resort to the courts and try to get some justice. Coming back to the possible remedies, they do not necessarily require a constitutional amendment. For example, one has only to do away with the revised order No. 4, and the executive order of the President could stand with slight modification. Does this mean doing away with affirmative action entirely? Of course not. The original 1965 requirements, while philosophically debatable, are quite reasonable and can be readily implemented; for example, the requirements to cast the net as broadly as possible when looking for candidates. As far as the universities are concerned, UCRA has on numerous occasions offered suggestions which might be useful on formulating an approach that places the best of the present cogerie of programs into the context of a genuine nondiscrimination plan. These proposals are outlined in considerable detail in my testimony. Let me just conclude. It is very unfortunate that to a large extent the present difficulties may have originated from a spirit of implacable mistrust which expresses itself in the belief that no group of expert academics can be trusted to be fair to women and minorities. In truth, however, this objection is without merit. The very fact that Federal guidelines speak of remedying underutilization and not of correcting discrimination indicates that the problem all along has been one of inadequate supply. The absence of substantial pools of unemployed academic women and minorities in the past, in contrast to significant numbers of un- or under-employed white male Ph. D.'s, substantiates this. Even where it can be presumed that there was a department or a dean who discriminated or would like to on the basis of, but not limited to, race, sex, religion, or national origin, it is wholly unrealistic to think that among the range and scope of American academics, none can be found who will be fair to a complainant. The thoroughgoing suspicion that refuses to cooperate with those who are to be regulated and which seeks to treat them as guilty in principle cannot possibly lead to nondiscrimination in an area in which so much depends on consideration of professional merit as judged by peers. It is absolutely necessary for the future that regulations be replaced by a spirit of mutual respect, trust, and cooperation. I would like to close with a peculiarly striking bit of logic that Prof. Sidney Hook offered to the Office of Federal Contract Compliance during hearings on the revised order No. 4 some years ago: If universities are urged to select the most qualified candidates, regardless of race, sex, or ethnic origin, how in heaven's name can they strive to achieve numerical goals? The most qualified person is always an individual person. How can one guarantee any particular numerical distribution? Suppose we were to proclaim, as we should, that in tryouts for any position on any team we shall select the most qualified person regardless of race, sex, or ethnic origin? And suppose we did so? Would that lead to any proportional representation whether racial, sexual, or ethnic? Obviously not. The implication is clear that whoever defends quotas or numerical goals of any variety cannot sincerely or consistently believe that universities should "select the most qualified candidates, regardless of race, sex, or ethnic origins." My friends and colleagues in UCRA and I sincerely hope that the Congress will muster the necessary wisdom and resolve to remove the noneducational impediments from our educational process and thus permit us to resume with all our faculties our scholarly work. As citizens, of course we are dutybound to obey all laws of the land, and the devotion of our profession to equality and equal opportunity has been amply demonstrated. We are convinced, however, that there need not be any conflict between good citizenship and superior scholarship. I trust that the senators share this view. Thank you very much for your attention. [The prepared statement of Mr. Todorovick and additional material follow:] UNIVERSITY CENTERS FOR RATIONAL ALTERNATIVES, INC. BOARD OF DIRECTORS* Abba Lerner, Florida State U (President) Paul Seabury, Berkeley (Vice-President) Sidney Hook, Hoover Inst. (Chairman, Publications Board) Howard Adelson, CUNY - CCNY Isadore Blumen, Cornell John Bunzel, Hoover Inst. Gray L. Dorsey, Washington U Oscar Handlin, Harvard Gertrude Himmelfarb, CUNY - Grad, Center Jack Hirshleifer, UCLA Morton Kaplan, U of Chicago Paul Kurtz, SUNY-Buffalo Marvin Meyers, Brandeis Louise Rosenblatt, NYU Eugene V. Rostow, Vale Malcolm Sherman, SUNY Albany FACULTY SPONSORS AND MEMBERS (Partial Listing*) Reuben Abel, New School Samuel Abrahamsen, Brooklyn Coll Morroe Berger, Princeton Gustav Bergmann, U of lowa Abram Bergson, Harvard Aldo S. Bernardo, SUNY - Binghamton 570 Seventh Avenue New York, N.Y. 10018 (212) 391-2396 PREPARED STATEMENT OF PROF. MIRO TODOROVICH New York should be testifying before a has grown up around the effort of the Federal all. During the political and social turmoil Walter Berns, American Enterprise Inst. in my native country the prospect of unlimited Alvin Bernstein, Cornell Martin Bernstein, NYU Bruno Bettelheim, U of Chicago Ruth Bevan, Yeshiva Joseph Bishop Jr., Vale Paul Bixler, Antioch Virginia Black, SUNY- Purchase Brand Blanshard, Yale Daniel J. Boorstin, Lib. of Congress Hiram Caton, Griffith U Walter Cerf, CUNY Herschel B. Chipp, Berkeley John G. Clark, Cornell Werner Dannhauser, Cornell Frank C. Darling, DePauw Kingsley Davis, U of Southern Cal. Mary Derengowski, Montclair Milorad Drachkovitch, Stanford Jacob M. Duker, U of Conn. Joseph Dunner, Yeshiva Valerie A, Earle, Georgetown opportunity in the United States served as a beacon for my own hopes and aspirations. I followed that beacon and am a living testimony to the fact that the United States is not a closed society, but does extend opportunities to all who are willing to reach for them. I will be forever grateful for a chance to raise my family and pursue my career in political and social freedom. There are numerous reasons why I should be for a government policy as high-minded and idealistic as "Affirmative Action" in order to make sure that no minorities, physics in the City University of New York, revolve around the process of seeking out and helping students of all ages, races, nationalities and creeds to understand the scientific explanations of the universe. Second, the future of my two As college age children, a girl and a boy, depend on their right to the educational opportunities they can earn with their dedication and hard work. I want to be very sure that no door will close on them because of their ancestry, and that they will be treated no differently from any other candidates for whatever they aim for. Third, any acceptable theory of education will have at its roots the idea of reaching out to inspire all developing individuals. education is practiced today at our colleges and universities, affirmative action is part of every professor's daily routine. Why then am I before this committee testifying against current Affirmative Action policies, when I have such powerful reasons as a recent immigrant, as a father of two children and as a college professor to support Affirmative Action? then am I here? My reason is that Affirmative Action as currently practiced violates all the ethical presuppositions that inspired its initial promulgation. It substitutes for the Why invidious discrimination of the past new forms of discrimination in the present. Instead of recognizing that merit should college students to wear body suits with only a slit open at |