President Bok, like the southern senators of the sixties, has recently found himself chafing under the bit of federal regulations designed to protect women and minorities. His report to the Overseers is replete with references to the stifling effect of federal authorities on the "creativity" of University policies in regard to these groups in a manner worthy of states' right conservative, Bok upholds the prerogatives of "autonomous and diverse" institutions like Harvard University, even in areas where the exercise of these prerogatives has historically proven disastrous to democracy. His argument to the Board of Overseers rests on this one fundamental point: that the universities themselves are the best judges of how they might best serve the interests of society.

This line of argumentation is not new. Historically, Harvard's exclusionary policies have been justified with precisely the same rationalization. President Bok's resurrection of this thesis in light of Harvard's history is yet another example of his desire to keep the fox in charge of the chicken coop as regards the rights of women and minorities. Bok's bankrupt concept of self-policing is at the heart of his long-run strategy for dealing with affirmative action; in the short run, he seems to hope that simple evasion will suffice.

The various presidential executive orders which created what is called affirmative action derive their existence from the pressures created by minorities and women during the sixties. The demands of women and minorities for equal and full protection under the law and the demand for an end to discriminatory practices in employment resulted in Executive Order 11246 and Executive Order 11375. These two orders taken together outlined the federal government's position on discrimination in hiring and employment, saying in effect that the government will not be party to, nor support, nor award any contracts to institutions that practice discrimination.

Revised Order No. 4, which implements and supplements various labor department regulations, goes one step further, requiring "each private institution contractor with 50 or more employees and a contract in excess of $50,000 to develop and maintain a written affirmative action program, including directions for analyses of the contractor's work force and employment practices, steps to be taken to improve recruitment, hiring, and promotion of minority persons and women, and other specific procedures to assure equal employment opportunity. When Bok complains of federal interference in the business of academia, he means more pointedly Revised Order No. 4. It is this law he would like to see changed.

Revised Order No. 4 applies, with few exceptions, to every employee of Harvard University. It covers kitchen workers, maintenance personnel and professors. It affects all of us and binds us together more effectively than the singing of any Harvard song or attendance at any football game. No matter how little or great your love for the University, no matter how quickly you would like to leave, or how long you would like to stay, Revised Order No. 4 is your constant companion. It is federal law, and it is a law which some would like to get rid of. For it prevents the University from returning to the days when Harvard was more perfectly synonymous with the terms, "rich, white, and male." This law and the organized efforts of minorities and women and their supporters are all that stand between Harvard and a more active practice of discrimination.

Executive Order 11246 embodies two concepts: nondiscrimination and affirmative action.

Nondiscrimination requires the elimination of all existing discriminatory conditions, whether purposeful or inadvertent. It requires that a university contractor carefully and systematically examine all of its employment policies to be sure that they do not, if implemented as stated, operate to the detriment of any persons on grounds of race, color, religion, sex, or national origin. The contractor must also ensure that the practices of those responsible in matters of employment, including all supervisors, are nondiscriminatory.

Affirmative action requires the contractor to do more than ensure employment neutrality with regard to race, color, religion, sex, and national origin. As the phrase implies, affirmative action requires the employer to make additional efforts to recruit, employ and promote qualified members of groups formerly excluded, even if that exclusion cannot be traced to particular discriminatory actions on the part of the employer. The premise of the affirmative action concept of the executive order is that unless positive action is undertaken to overcome the effects of systematic institutional forms of exclusion and discrimination, a benign neutrality in employment practices will tend to perpetuate the status quo ante idenfinitely.

Immediately one can see what the fuss is all about. No self-respecting liberal or conservative would, in this day and age, come forward in favor of outright discrimination. What troubles people like Bok is this business of going beyond simply eliminating discrimination. What gives rise to the "nightmare of affirmative action" is the idea of actually having to go out and recruit women or minorities for jobs not traditionally held by women or minorities. The requirements of affirmative action do not allow employers to claim that women or minorities might have been hired had they applied for the positions. It is the elimination of this classic excuse which has so many people, Bok among them, upset. It has given rise to new lines of defense, the cries of reverse discrimination and affirmative discrimination to mention but two.

But Revised Order No. 4 is even more specific in this regard. In fact it is so specific that a comparison of the requirements of Revised Order No. 4 and the affirmative action plan filed by Harvard University with the Department of Health, Education and Welfare is helpful in understanding precisely how Harvard evades and avoids and ignores the law. Members of the Task Force on Affirmative Action, armed with nothing more than Revised Order No. 4 and the University's own affirmative action plan, have composed a document which details the discrepancies between Harvard's plan and the requirements of the law. This document is being forwarded to the Office of Civil Rights for use in its upcoming review of the University's affirmative action efforts. The examples which follow are taken from the investigation of the Task Force into Harvard affirmative action efforts.

As a part of the affirmative action obligation, Revised Order No. 4 requires a contractor to determine whether women and minorities are "underutilized" in the employee work force and, if that is the case, to develop as a part of its affirmative action program specific goals and timetables designed to overcome that underutilization. Underutilization is defined in the regulations as "having fewer women or minorities in a particular job than would reasonably be expected by their availability." In examining the submissions from the Faculty of Arts and Sciences, the Task Force found that the availability figures for women and minorities are often significantly lower than the figures given in generally recognized sources for women and minorities holding doctorates. Furthermore, availability pools, utilization analyses and projections in all departmental submissions fail to distinguish among associate professors, assistant professors, lecturers and instructors, despite the substantial differences in salary, responsibilities, and status associated with these positions. Underutilization is not even acknowledged in some departmental submissions.

Take the Biology Department as an example. This department fails to acknowledge underutilization of women in both tenure and non-tenure ranks. While the department uses 5 per cent availability for tenured women, the Association for the Advancement of Science (AAAS) reports that women received 10.9 per cent of the doctorates in biology between 1920 and 1959. Similarly, the department's availability estimate of 10-15 per cent for nontenured women is substantially lower than the 25.8 per cent figure given by the AAAS for the number of women receiving the doctorate in Biology between the years 1972 and 1975.

Affirmative action goals are supposedly a contractor's projected level of achievement, based upon an analysis of the organization's deficiencies and what can be reasonably done to remedy them, given the availability of qualified minorities and women. But the School of Public Health's "utilization analysis" consists of a comparison of the proportions of women and minorities in the School of Public Health faculty with the proportions of women and minorities in the University as a whole. The School notes that "...the School of Public Health falls slightly behind the University as a whole in the appointment of minority group members to its teaching staff" and goes on to note with pride the proportion of women in the school's faculty exceeds that of the University as a whole. One wonders if the School of Public Health would similarly define health as "not being as sick as the next person." In comparing itself with the rest of the University, the School of Public Health fails to comply with the law which is quite explicit in this regard. Furthermore, the School of Public Health's goals project a decrease in the proportion of women and minorities in its faculty in the top two ranks between 1975 and 1978.

With seven positions becoming available at the level of professor, the School of Public Health projects that the proportion of women will decrease from 5.9 per cent to 2.7 per cent, while the proportion of minorities will decrease from 2.94 per cent to 2.7 per cent. At the level of associate professor, with ten positions becoming available the School projects that the proportion of women will decrease from 20 per cent to 12 per cent, while the proportion of minorities will decline from 8.6 per cent to 7.3 per cent.

Lest one get the impression that the problems with the affirmative action plan are all concentrated around faculty hiring and recruitment, one should look at the situation which Harvard non-faculty employees face. Women and minorities are under-represented at the higher levels for both clerical and technical staff as well as non-teaching officers. (See diagrams.) For this reason promotion policies are critical.