egies based on race, sex, and national origin. At the very least, a very arguable proposition.

The Commission has made some use of the public polling data. I wish it had been more balanced or, at least, had the opportunity to include some other aspects of this whole question, which seems to me terribly important if one is going to deal again with the empirical character of public attitude. More balance on the part of the Commission-and I hope it will include this in its final report-would, at least, make some statements along these lines: that large majorities of blacks and whites favor setting up special programs for women and minorities so they can be given every chance to have equal opportunities in employment and education and providing special training and advice so they can perform better on the job.

To put this very simply, Americans approve of what has come to be called "compensatory action" to help make up for past discrimination based on race and sex and poverty or other grounds. But, ladies and gentlemen, what most Americans do not support-by every poll that I've ever seen, ever taken in the last 10 years-is preferential treatment. Not just quotas, which are opposed by most Americans, as we all know, but any form of absolute preference. Thus, a Gallup poll shows that an overwhelming proportion of the public-8 in 10— oppose preferential treatment. Eight in 10 college students took the same position, and so on.

There is evidence which I would invite the Commission to consider. I have presented in my own paper a discussion of a particular corporation, the XYZ Corporation, which is a Fortune 500 company that was charged with sex discrimination. I have used this because I wanted to find a way of trying to address the Commission's attention to the whole premise with which it operates that suggests that intergroup statistical variations and numbers and ratios and percentages virtually, if not automatically, point to discriminatory behavior.

Now, in many respects, reading through the Commission report, it is like reading Hegel. There is something for everybody to quote, and it is not entirely clear, precisely, in every respect, as, indeed, the Bible isn't precise as to what it really says. But there is a common thread, nonetheless, which I find, and one of those threads, one of the initial assumptions, is that when you find the various percentages with respect to underrepresentation of women and

minorities, whether in higher education or what have you, that this points to discrimination.

I presented, in quite some detail, an analysis done. by a consulting firm to take a look at the particular problem in a major corporation. And the conclusions of that report are worth, I believe, the Commission's attention because the data make it clear that male and female clerks at XYZ were promoted in almost exactly the same proportion as they expressed interest in promotion.

The consulting firm was able to demonstrate from its data that the difference in promotion rates between male and female clerks was not due to company policy or practice. The differences in behavior that did produce the difference in promotion rates appear to lie-so the data now shows-in this corporation in the fact that female clerks were likely to have lower aspirations than male clerks, less likely to have had the time or to have felt they had the ability for higher level positions, more likely to have seen their employment as a "job," rather than as a stage in their career, and more likely to have sought better working conditions rather than ad

vancement.

In short, the women's ambitions-both for immediate advancement and long-term success-were more limited than men's. This difference was present when they were hired. It was not something the XYZ Corporation created.

There were varieties of other data that came out of this study, which I hope the Commission will have an opportunity to examine. There is an important postscript to this particular case study. If this survey had not been conducted, the XYZ Corporation would probably have lost the lawsuit and would have probably had to have paid something in the neighborhood of millions of dollars in damages and been subjected to injunctive procedures setting up goals and timetables for the elimination of discrimination. But the consulting firm was able to show that the relatively low proportion of women among those promoted did not reflect discrimination; it reflected differences in the behaviors and attitudes of male and female clerks, differences the company and its policies had no part in producing.

Now, these are not data that came about on something I dreamt up a week or two ago, and, as a point of fact, it came about because the Huffman Research Associates, a North Carolina consulting firm, conducted a nationwide study of the personnel practices of the XYZ Corporation. The facts were of

interest to the corporation because they had a nondiscriminatory policy.

They were sued. They wanted to find out, in fact, what the data might show. Now, perhaps, the Commission will believe that the situation at XYZ does not constitute discrimination, and I would hope, if that's the case, that it would say so. It might believe that, perhaps, this example was not typical. My challenge to the Commission is that, against the backdrop of this case, it recognize that the criteria for discrimination it has adopted and which are applied by such agencies as the EEOC too often reinforce the ideology of quotas, by whatever name, that are now prevailing in many quarters and undermine important values of the democratic ethic in this country-individual rights, initiative, and the competition for social benefits and opportunity.

As a university administrator, I regularly encountered the seemingly powerful argument that statistical underrepresentation of women and minorities provides irrefutable proof of discrimination and unequal treatment. Today, of course, in many quarters it has become virtually a conclusion, to the point that the burden to prove good behavior has shifted to the campus, to show that it is not guilty of discriminating on grounds of race, which reverses the ordinary requirements of legal procedure. It is as if our colleges have sometimes lost the right to be considered innocent until proven guilty because the gross use of numbers and percentages is presumed to yield prima facie evidence of their guilt. Now, it would be foolish to claim that underrepresentation never provides evidence relevant to the discovery of discrimination. Of course it does. But the Commission has made no attempt to unravel the multiple confusions having to do with careless attempts to make words like "discrimination" and "unequal" synonymous with terms like "disproportionate" and "underutilized."

I think it could begin by pointing out that the most general difficulty with the argument that underutilization/disproportionality equals discrimination is that it conveniently overlooks the fact that there have always been differences of values, orientation, taste, expectation, and the like among the varied groups that compose this or any other country. Many cruel perversions of our political life as a Nation have, of course, tragically exacerbated these differences, sometimes making them into heavy burdens or vicious stereotypes which have barred the way of some minorities to advancement. We

know that, and we need to continue and, indeed, to deepen our moral resistance and our legal opposition to such betrayals of the principle that all men are created equal. But, to do this effectively, we must have a clear mind about what it is that should be concluded from our observations of the real world. The fact is that many of the differences of group outlook-differences that have influenced a disproportionate number of Italians to become opera singers, a disproportionate number of Armenians to become truck farmers, and a disproportionate number of Jews to become doctors, college professors, and novelists-and, indeed, if C.P. Snow is correct, to constitute almost half of those ever awarded the Nobel Prize for excellence in science-these differences express prima facie evidence not of discrimination, but, rather, of the vitality of democracy.

These specialized choices are derived from deep allegiances to group loyalties, to religious ties, to sentimental attachments, to cherished traditions, and to ethnic identification. It is not necessary to believe that every aspect of these choices has been free of constraint in every respect in order to defend them as expressions of democracy. Such a view would be not only perfectionistic, but unrealistic. It is only important to understand that the alternative to such choices-quota arrangements that would assure proportionality-is an infinitely greater source of constraints on our freedom and provides absolutely no assurance—either with reference to logic or the record of social practice-of possible success. I believe it is also important to understand that many of these choices that have resulted in disproportionality were made in an environment that offered alternative possibilities.

Let me take just a few more moments of the Commission's time, since I have a few more moments left. I hope later we'll have a chance to talk about what I consider to be a major deficiency in the report: its having stayed above the clashes of affirmative action and the fact, as I have tried to suggest, that in resting so much of its analysis at an arguable legal level, that it is light years away from affirmative action in practice.

The Executive order which originally established the policy of affirmative action was clear. I need hardly remind this Commission that it says, and I'm quoting, "The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, and so on. The

contractor will take affirmative action without regard to their race.'

I quote from the original Executive order establishing affirmative action. It would give me great satisfaction if the President of the United States were to issue a new Executive order or a clarifying declaration to all departments in the government to return to the original purpose of the Executive order on affirmative action, stating that no Federal agency shall adopt any policy, regulation, or practice requiring or encouraging either the consideration of persons with regard to their race, color, religion, sex, or national origin, or the recruitment, employment, or promotion of persons of any group in numbers proportional to their representation in the employers' labor market or in the population.

Finally, Mr. Chairman, I would urge-because it is the legislation-making branch of this countrythat the Congress give some consideration to its own responsibilities and begin to examine, because, I think, it has been reluctant in shouldering this burden, how it is we wish to define the roads by which we all want to arrive at a greater sense of equality.

If race or ethnicity-once abolished by the Supreme Court as a permissible basis for governmental classification-is to be reinstated as a legitimate and desirable ground for awarding jobs and social benefits or opportunities, and if rights and special preferences are to be given to certain groups but not to others, then I believe the courts, or the rulemakers in EEOC, are not the ones to take on this burden.

I think these are political decisions, basically and fundamentally, and ought to involve the Congress and engage it in the political process. Thank you very much.

MR. HARTOG. Thank you, Dr. Bunzel.

Dr. Kenneth B. Clark, an eminent educator and psychologist, is chairman of the board and president of Clark, Phipps, Clark and Harris, Inc., a consulting firm in New York City. Dr. Clark was formerly distinguished university professor of psychology and is presently distinguished professor emeritus at City College of the City University of New York. Dr. Clark's career includes service as social science consultant to the NAACP, personnel consultant to the U.S. Department of State, and member of the board of regents of the State of New York.

Among Dr. Clark's numerous published works are: Desegregation: An Appraisal of the Evidence, Prejudice and Your Child, Dark Ghetto, A Possible

Reality, and The Pathos of Power. He also is coauthor of A Relevant War on Poverty and How Relevant Is Education In America Today?

Statement of Kenneth B. Clark, President, Clark, Phipps, Clark & Harris

Dr. Clark holds a bachelor of arts and master of science degree from Howard University and a doctorate from Columbia University.

DR. CLARK. Thank you. First I would like to say that I find it difficult to react to the Commission's statement because I am in almost total agreement with it. It is always easier for me to react to something with which I disagree. I read it very carefully and reread it, and my reaction to the approach and particularly the emphasis on remedy was extremely positive, and I could summarize my reaction by quoting Justice Blackmun's decision in Bakke as follows-and this is probably one of the most important paragraphs in the number of civil rights decisions that came before the United States Supreme Court since Brown. Justice Blackmun stated:

I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take into account the race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot-we dare not-let the equal protection clause perpetuate racial supremacy.

Let me repeat, ladies and gentlemen, to me this is one of the most important points made in the hundreds of thousands of words that have been devoted to the decision. The question is remedy, that one cannot remedy a disease by pretending that there is health. The fact of the matter is that the Civil Rights Act of 1964, Title VII, and the Executive orders came out of the recognition of a problem of a disease that was hitting at the very heart of American society and it required remedy.

I would like-since I have been given 15 minutes in which to share thoughts-I repeat, I could stop my comments with Justice Blackmun's decision; however, I do have a few other ideas to share with you that come out of my experience as a student of this complex problem of American racism. I have been studying this problem for over 45 years.

In the past 6 years I have had specific experience as the director of a consulting firm working with private corporations, educational institutions, and

Federal governmental agencies. I would just like to summarize some of the problems which were highlighted for me-more clearly than when I was a student-during this past 6 years, as a person actually dealing with affirmative action and equal employment problems in the real (rather than just the academic) world.

One, it is clear to me that affirmative action rules and regulations, at best, have been inadequate and spasmodic, and particularly in enforcement. Regulatory agencies, clearly, did not have a staff adequate to deal with these problems and, apparently, have never really developed an approach similar to that of the IRS in, trying to bring about compliance. They were, for the most part, required to fulfill their responsibilities in what I consider really a discriminatory manner; that is, to select highly visible corporations and to seek consent decrees and judgments on the assumption that this visibility would have sort of a filtering effect. As a result, many, many corporations, agencies, institutions that were required to comply with the law, were rarely audited, even under conditions of complaints. You all know about the tremendous waiting lists, etc., that have existed in the regulatory agencies. And my own personal observation is, this really was not remedied very much with the 1977-78 consolidation, where most of the authority and power was placed in the hands of the EEOC and the OFCCP. The problem of inadequate enforcement-spasmodic-is a problem which, interestingly enough, is very rarely discussed, and I was fascinated that my colleagues on this panel who preceded me did not mention this rather obvious point. They acted as if the question of preferential treatment and rigorous enforcement was not a question, and for those of us who are concerned with remedying what I'm saying-and I suppose I would speak for myselfthat the remedy has been less than adequate in terms of the agencies that have the responsibility.

Further problems, which I believe cannot be ignored-and this comes from discussions with some of my clients-is that the attempts at enforcement seem more often to be concerned with paperwork, bureaucracy, etc., and it was not at all difficult for agencies and corporations which would seek minimum compliance to get compliance by manipulation of statistics, by changing titles, by engaging in rather obvious approaches to changing a verbal or statistical reality rather than functional reality.

Some managers and executives say this outright, that this is quite possible, that one can move toward "objectives" by changing titles of females without changing function.

One of the problems-to me even more complex and disturbing set of problems which interefere are barriers to effective enforcement of existing laws, rules, and regulations-are what I call the present, more complex and subtle manifestations of American racism, and the residues of the past, more flagrant forms of racism. I was fascinated to hear the two previous speakers talk as if racism-which these in employment-which these laws are attempting to remedy is something of the past.

I was fascinated to hear my good friend Morris Abram talk as if the objectives and the goals-the civil rights struggle of which he was certainly a part-have all been achieved. I haven't had the opportunity to say this to Morris before, but I want to say it publicly: that's fiction. The evidence is clear that, if anything, racism is alive and virulent and more insidious and more complex than the symptoms were when we were dealing with the racism that was honestly open in the civil rights movement of the fifties and the sixties.

I'll give you some symptoms of the more insidious forms of racism that must be dealt with somehow, and, certainly, I would hope that the statement of this Commission might be the beginning of developing, hopefully, an effective formula for dealing with the present, more complex, insidious, closet, but operational forms of racism and sexism. It is a fact that it is no longer fashionable for a manager, a supervisor, an executive, or a personnel director to come out and state racist or sexist stereotypes as a basis for denial of employment. There is no question that, if there is any one spillover of the civil rights laws and Executive orders, it is that they have controlled the rhetoric of prejudice and bias even if they have not controlled their operation.

By the way, the only way you can tell whether bias is operating is no longer whether people say, "I am biased. I don't like niggers. I think that women should stay in the kitchen," because they should no longer say that, but the only way you can tell is whether there has been any change in the personnel of the institutions and corporations.

A very important problem is the change of semantics of contemporary forms of racism—such as preferential treatment-when the facts are clear that minorities and females are not given preferential

treatment. Quotas-the term quota has meant exclusion. When I was a student at Columbia University, it was generally known that in the department of psychology of that distinguished university, there would be only one Jewish student admitted for doctoral work per year. That was in the late 1930s. They did not have quotas for blacks, because there weren't enough blacks applying.

What I cannot understand in this new rehtoric and semantics of racism is why a term that had been consistently used for the policy and practice of exclusion is now being used-the same term is being used for an attempt to remedy past exclusion. I think one of the things that I saw in this statement—and I wish it had been more frequent and repeated-was instead of quotas, using the term "objectives." What are the indications? What are we going to use as the indices of movement toward compliance?

I think it's been a serious mistake, for those of us who are still concerned with remedying racism in America would permit the subtle, sophisticated, intellectual diversion of the dialogue into terms which bring with them unnecessary-for example, it should not have been necessary for me to have devoted 2 or 3 minutes to this very obvious point: that we are not talking about quotas as an exclusionary device; we are talking about how do we remedy the manifestations of past and present racism.

Let me move on now. The fact of the matter is that racism-discriminatory practices in employment felt by upper class blacks, upper income blacks, better educated blacks to a greater degree than lower income blacks-in this regard Dr. Feagin's results, which he presents in his paper, confirms a study of 1,500 blacks on a national sample, where they state, unequivocally, that discrimination in employment is not a residue of the past, but something which operates at the present.

I conclude by saying, I commend the Commission in the fact that it is not being taken in by the neoconservative, very sophisticated forms of resistance to dealing with the still very important and virulent problem of American racism in our society.

MR. HARTOG. Thank you, Dr. Clark.

Dr. Joe R. Feagin is currently a professor of sociology at the University of Texas at Austin. He has instructed graduate students for more than 10 years and has been a graduate adviser in the graduate program.

For the last 15 years he has done extensive research and writing on a broad variety of racial,

ethnic, and gender issues. His published work includes more than four dozen articles and 10 books. His most recent books include Discrimination American Style, Institutional Racism and Sexism, Racial and Ethnic Relations, and Affirmative Action and Equal Opportunity. Dr. Feagin has been a scholar-in-residence at the U.S. Commission on Civil Rights. He has also consulted on race and sex discrmination issues for the Department of Defense Race Relations Institute, for the Committee on Church and Race of the Presbyterian Church, the U.S. Civil Service Commission, and for plaintiffs in discrimination cases before Federal courts. Dr. Feagin holds a doctorate in sociology from Harvard University.

Statement of Joe R. Feagin, Professor of
Sociology, University of Texas

DR. FEAGIN. Mr. Chairman, Commissioners. I, too, would like to express my appreciation for this opportunity to talk before the Commission on the very important issue of affirmative action in 1980s. I think it is safe to say that affirmative action and equal opportunity programs are in trouble in the 1980s. The white male backlash against civil rights progress for minorities and women began in earnest in the early 1970s and has moved to a crescendo of protest, containment, counteraction as we move into the 1980s. Today, in fact, there are powerful and articulate spokesmen against affirmative action and equal opportunity at the highest levels of business, government, and academia. For example, the recent report of the Reagan administration transition team calls for the gutting of the Equal Employment Opportunity Commission, including a 1-year freeze on new court suits challenging discrimination.

In his new book Wealth and Poverty, the influential George Gilder has argued that there is no need for affirmative action, first, because it is now "virtually impossible to find in a position of power a serious racist"; and, secondly, because "discrimination has already been effectively abolished in this country."

Gilder goes so far as to say that race and sex discrimination are now myths in the United States of America. This book is, according to Time magazine, the "bible" of many in the Reagan administration and in business circles.

In addition, the influential report of the Heritage Foundation, titled Mandate For Leadership, argues vigorously for sharply reducing or totally eliminating many Federal affirmative action and equal opportunity programs. There has been an amazingly