ON EQUAL OPPORTUNITY IN HIRING


In a letter to the Editor of The New York Times, July 24, 1983,
Morris B. Abram, a civil rights pioneer from the days of lunch-counter
and school segregation, recalled a legal brief he had himself written,
in which he quoted from the actual text of the Civil Rights Act of
1964, as follows:

Nothing in this Title [VII] shall be interpreted to require

any employer ... to grant preferential treatment... because of race,

color, religion or sex... on account of an imbalance which may

exist with respect to the total number or percentage of persons of

any race...etc. employed..."

Abram also quoted Senator Hubert Humphrey, the floor manager of
the bill, who said at the time that the bill

“would prohibit preferential treatment for any

particular group...”

and then promised that if the bill had any language

“which provides that the employer will have to hire on the
basis of a percentage... I will start eating the pages.”

Senator Humphrey, alas, has eaten his last meal, or his voice
might have been heard again today. Those words of his were spoken in
the U. S. Senate over thirty years ago, but it didn't take that long
for his cherished legislation to be turned 180 degrees from his
intentions. Just five years after the passage of that Civil Rights
Act, while I was serving as Associate Dean for Graduate Studies at the
University of Rochester, our Provost called an emergency meeting of

Deans and Chairmen at which copies of the following letter were

provided to us:

[Letter headed "Office of the Provost", dated March 6, 1969]

TO: All Deans and Department Chairmen
As you know, we have all been trying to add qualified
black professors to the University of Rochester faculty. Be-
cause of the stiff national competition and the extremely limi-
ted supply, we recognize that a premium salary must be offered to
have a good chance of acceptance. I urge you not to make any
appointments without giving special attention to the possibility
of appointing a black professor. I shall expect your assurance
(both dean's and department chairman's) that a black professor
of appropriate promise and experience was not available for an
opening before I approve a non-black candidate.
If this policy causes you special problems, please let me
know as soon as possible.
<signed> [The Provost's signature appeared here]


While the Provost explained this new policy to us and answered
questions, I was striking out the word "black" in its four appearances
in this directive and replacing it by "Aryan," just to see how it
would fly, viz.

TO: All Deans and Department Chairmen
As you know, we have all been trying to add qualified

^aryan
black professors to the University of Rochester faculty. Be-
cause of the stiff national competition and the extremely limi-
ted supply, we recognize that a premium salary must be offered to
have a good chance of acceptance. I urge you not to make any
appointments without giving special attention to the possibility

^an aryan
of appointing a black professor. I shall expect your assurance

^an aryan
(both dean's and department chairman's) that a black professor
of appropriate promise and experience was not available for an

^aryan
opening before I approve a non-black candidate.
If this policy causes you special problems, please let me
know as soon as possible.
<signed>

I showed the result to my neighbor, a Department Chairman,
but he didn't seem to understand. At least, he didn't find it funny.

Things were in fact serious. The Colgate-Rochester Divinity
School half a mile away had been occupied and shut down by disaffected black students for the past four days, and on the day of this emergency meeting our own Faculty Club was occupied by the Black Students’ Union, whose manifesto on the subject was well-known to all present. Here it is, complete and verbatim:


Seen many of de ole plantation niggers today (not that there are
that many of us to begin with)? We is taken the Faculty Club.
We is not shutting down de whole plantation, just taking 'way
Massah's pleasure. Even we ole house niggers is tired of wait-
ing!

Why the Faculty Club?
1. It is a prime example of de facto segregation and
institutional racism. It is segregated, because, as far as we
know, there is only one black person eligible for membership and
it is unlikely that there will be many more in the future.
2. How can the Faculty Club members enjoy such luxury
when black people across the river, many of whom are university
employees, live in poverty.
3. In many ways the faculty has been just as lax as the
administration in making this university relevant to the black
students here and the black community of Rochester.
4. The administration of the university has not found a
black recruiter nor a black coordinator. It has given the Black
Students Union nothing but excuses and rhetoric. There has yet
to be a concrete commitment on the part of the administration to
solve the problems of black students.

What do we want?
1. the immediate hiring of a coordinator, an assistant
coordinator, a staff; a recruiter and staff; and three black
counselors.
2. the hiring of fifteen (15) black professors by Septem-
ber 1969.
3. the structuring of a program for black students and
black studies with a budget of 1« million dollars per year.
4. the enrolling of more than 100 black freshmen in Sep-
tember, 1969...
5. the allotting of $25,000 to the library for the pur-
chasing of books and publications essential to any black studies
program.
6. the hiring of a community coordinator and staff who
would work to improve relations between the university and the
black community, especially by sponsoring programs which employ academic skills, i.e., a rat control program aided by the Chemistry Department.
7. the improving of opportunities for the many black
people "under-employed" by the university. These might include
high school equivalency regardless of length of employment, free
tuition for employees and their children regardless of length of
employment, and the upgrading of black employees in both salary
and duties, especially after long on-the-job training.
8. the seating of representatives of the Black Students
Union on all committees concerning matters pertinent to black
people.
<signature> THE BLACK STUDENTS UNION

Except for the sophomoric preamble, this list of demands was,
like the one at Colgate-Rochester, standard fare at colleges all over
the country. Rochester was already late to the table, the great
explosion at San Francisco State College having taken place the
preceding fall.

It is hard to reconcile the preferential treatment for blacks
being urged by the Provost in March of 1969 with the 1964 attitude
expressed by Senator Humphrey with respect to "equality of oppor-tunity," but the University of Rochester has -- many times since --repeated this sort of instruction, and in increasingly urgent terms,

especially when under fire on the minority job front. Building occupa-
tions, while a helpful reminder, are not always needed, since a demon-
stration in Palo Alto, California is almost as effective among thought-
ful administrators here in Rochester as a home-grown riot would be.
The early 1970s in particular were a time of non-stop mementos of this sort. There were, and are, also the "spokesmen for the black community" downtown, who explain things to the University's president from time to time. Every downtown, every university, every president.

The most recent affirmative action directive at the University
of Rochester concerns a current (1995) vacancy: a Vice President for
Health Affairs. In appointing a committee to select a short list of
top candidates, the President wrote,

The committee is responsible for ensuring that special
efforts are made to identify qualified minority and women can-
didates for the position of Vice President and Vice Provost for
Health Affairs. In the event that the slate of candidates
presented to the President does not include one or more women or
minority candidates, the committee will also be responsible for
forwarding the file on the top-ranked minority or woman candi-
date, with a summary of why that individual is not being inclu-
ded in the slate as well as a full statement of the steps taken
during the process to identify and bring forward such candi-
dates...

(We may notice that women were not part of the Provost's concern
in 1969, and it is a remarkable feat that they have been able to join
the blacks as candidates meriting special consideration in the years
since, without occupying buildings or carrying guns to campus. How
this came about is a separate story, possibly related to the fact that women are not a minority. On the whole, however, building occupations were faster than logic,)

In the printed advertisements for the Health Affairs position,
the University repeats its "equal opportunity" phrases. Nor is it
only a question of this particular Vice Presidency, for a similar
screening requirement has been in place for two or three years for all
appointments of sufficiently exalted degree, including professors.

More than this, the Provost's office has a special fund for the
hiring of black professors, money that cannot be used if a good white
one turns up. This money is not reserved for professors of black
history or culture, by the way, but for professors of anything we
teach. If mathematics needs a professor, or thinks it needs one, and
cannot find a black one, no luck. But if a black one turns up, we
don't have to worry about our Dean and our budget; the Provost has the money for him. As the University says in its advertisements,

The University of Rochester is an Equal Opportunity and
Affirmative Action Employer. Women, minority persons and per-
sons with disabilities are urged to apply...

Actually, the Provost has had -- indeed, a succession of Pro-
vosts have had -- such a fund for several years now, and one Chairman I know here has tried to take advantage of it, by soliciting the Curriculum Vitae of a certain black professor at another university,
after having sounded him out and found him interested, perhaps, in
coming to us. An excellent candidate, too. The package, complete
with bibliographies and the like was sent up to the Provost's office
(not our present Provost) but was rejected without formal explanation.

Yes, the man was a sure-enough American citizen and black as the
ace of spades, but he had been born in Khartoum. What kind of "minority" is that? One cannot help suspecting that the Provost's fund is not for black professors at all, but for unqualified black professors.
As explained by the Black Student Union occupiers of the U of R
Faculty Club in 1969, what we actually need first are a black recruit-
er and staff, a black coordinator with assistant coordinator and
staff, and three black counsellors, before getting on to the fifteen
black professors called for in the next clause. That recruiter and
staff won't be hiring any phony blacks from Khartoum, you know.
They'd have the brothers downtown to answer to. A look at today's
black population at the professional staff levels of the University
will reveal a good number of coordinators, counsellors and recruiters
under various titles, and associate deans and the like as well, but
still no professors in that department that imagined that an immigrant could be black.

If the United States Congress were to reiterate Hubert Hum-
phrey's 1964 law and really mean it this time, as some Republican
members of its new majority say they intend, Affirmative Action procedures of our present sort are in danger of being declared illegal.
Actually, genuine equality is still within the law in some domains, raising embarrassing conflicts with the heavy reinterpretation of that word over the past thirty years.

For example, Congress passed the Community Reinvestment Act of 1977 to encourage banks to invest in minority-owned and female-owned businesses. Since that time federal regulators have occasionally
considered forcing banks to ask small-business loan applicants to
disclose their race and sex, the better to identify possible victims
of adverse discrimination. But in 1995 a regulatory plan to do this
was withdrawn, apparently because it violates the Equal Credit Oppor-
tunity Act of 1974, which bars financial institutions from asking for
race and sex information. Thus banks cannot take "affirmative action"
in making loans. What is illegal for banks, though, is required at
the University of Rochester, at least for department chairmen who want to use the Provost's black professor fund. Will this be permitted to continue?

One of the many drafts (1986, this one) of affirmative action
rules at the University of Rochester stated that in our recruitment of
faculty we intended "to go beyond equal opportunity guarantees."
Beyond equality can only lie inequality; how can we get away with it?
Up until recently it was done by keeping a straight face and calling
it equality. In the event, the "beyond equal opportunity" phrase never made it out into public. But how if a reactionary Congress were to make it impossible to claim with a straight face that preferential hiring is not preferential? We have the answer to that one, too: Diversity.
We are indeed going beyond mere equality, but orthogonally, in the direction of a higher virtue.

For it has recently been discovered that diversity is itself an
advantage in any organization. That is, other things being equal, a
university with a faculty and staff half female and half male is
better than one with a different ratio. And 12% blacks and 6% Hispan-
ics (These numbers might be wrong) improves a faculty's ability to
"relate to" the population it serves. These numbers are no longer a
question of justice, or guarantee of equality of condition, or of
making sure that blacks are as rich and honored as whites, and women
as rich and honored as men. They are not atonement for past injus-
tice. They are something totally different, something needful for our
mission as a university, for our ability to serve the population out
there as they see their need for our services.

According to this discovery, now is no longer the time for
"color-blind" hiring, or listening to violin auditions behind curtains
to make sure the jury can't tell if the candidate is male or female, black
or white. That's out. We have to know such things in advance, else
there is danger that our professoriate, chosen blindly, will not
properly reflect the diversity of our country.

Diversity has entered the hiring world outside the universities,
too. Paul Allaire, CEO of the Xerox Corporation, after reviewing the
gratifying rise in the percentages of women, blacks, etc. at Xerox in
recent years, writes (Rochester Democrat & Chronicle, May 7, 1995),
"At Xerox, we have demonstrated that diversity works. We'll maintain
our commitment no matter what the outcome of the debate in Washington. It's ...a formal business objective."

George Fisher, CEO of Eastman Kodak, argues (on the same op-ed
page) that customer satisfaction is one of the forces driving Kodak to
its diversity strategy, which improves its "ability to communicate."
He speaks of

"increasingly diverse markets and our commitment to put
customers first...So, while the politicians argue the pluses and
minuses of affirmative action in Washington, American industry is
busily trying to make diversity a competitive advantage. Kodak's
commitment to diversity certainly will not waver with affirmative
action or without it...because it is consistent with our company
values."

These arguments are not new. In the 19th Century it was common
for "Help Wanted" advertisements in New York newspapers to add the line "No Irish need apply." If you were to ask the author of the ad, a shopkeeper perhaps looking for a clerk, why he would hire no Irish, he might have answered that he personally had nothing against the Irish, but that he needed non-Irish for the competitive advantage it gave him over shops whose Irish clerks were somehow offensive to the customers, goodness knows why. It was consistent with his mission as a retail store to please his customers. "So while the politicians argue the pluses and minuses of affirmative action in Washington," he might quote Mr. Fisher of Kodak, that he will do "what is consistent with company values." (i.e., what has suddenly been noticed to be for the public benefit.)

In the 20th Century, and as late as World War II, every decent
medical school in the United States had a firm quota on the number of
Jews it would admit as students. Were you to ask a Dean of the time
for the reason, he would explain that the Jewish population of the
United States was only 2 or 3 percent, so that if Jews were to over-
populate the M.D. graduating classes, where would they find their
patients? The mission of the medical schools was to serve the public,
after all, and it would not serve the public to fasten upon them
doctors to whom they couldn't relate, who did not understand their
ethnic needs, like where they were coming from.

As the Dean might more briefly have put it, when presented with
one extra, really sparkling, application to his medical school, "Very
nice, good prospect -- but we have enough Jews already, you see."

The University of Rochester is not alone in anticipating a
Congressional drive against Affirmative Action. It is joined by the
other mighty corporations of Rochester in preparing this second-line
defense against the "equal opportunity" notions held by the civil
rights pioneers of 1964. For thirty years the University and its
affirmative action allies have been arguing that inequality is really
equal opportunity. But if that won't wash, it is now prepared to
polish up older justifications and call the resulting percentages
"diversity." Instead of saying inequality is equality, it now says
that inequality is good.

Ralph A. Raimi
May 25, 1995

Slightly edited June 6, 2011