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Extending Protection 
Against Sex-Based

June 19, 1970 — Testimony before US House Committee on Education and Labor, Washington DC


Madam Chairman and members of the subcommittee: I am Pauli Murray, professor of American Studies at Brandeis University. I teach legal studies, civil rights, law and social change and a course on women in American society. My task in a college of liberal arts is to expose undergraduates to an understanding of the legal system in its various aspects — the judicial process, the legislative process and the administrative process, and my appearance before this committee is in the nature of “in-service-training.” Many of my students are headed for law school; others plan careers in education, community organization, or social work. All of them, however, are asking themselves the question whether our legal system is flexible enough to accommodate necessary social change. What I have to say to this subcommittee is influenced by my own desperate need to answer this question in the affirmative coupled with the apprehension that in the area of women’s rights as in other areas of human rights, our lawmakers will respond only when there is violence and disruption of nationwide proportions.
I appear before this Subcommittee, however, as a member of the National Board of the American Civil Liberties Union to testify in support of the provisions of Section H.R. 16098 which seek to extend protection against sex-based discrimination, particularly in education and employment.

The ACLU stands for the principle of equality of treatment under the law and equality of opportunity without regard to sex. It has been active in litigation to apply this principle for the purpose of eliminating sex-based discrimination in jury service, in the criminal law, employment, admission to state universities, and the like.

In its most recent policy statement on academic freedom and academic due process, ACLU has declared: “A teacher should be appointed solely on the basis of teaching ability and competence in his professional field without regard to such factors as race, sex, nationality, creed, religious or political belief or affiliation, or behavior not demonstrably related to the teaching function.” (ACLU Statement of Principles on Academic Freedom, etc., September 1966. p. 8.) On June 7, 1970, the Biennial Conference of ACLU overwhelmingly adopted a strong policy recommendation to its national board on the rights of women, including the principle that admission to colleges and universities should not be denied on the basis of ethnic origin, race, religion, political belief or affiliation, sex or other irrational basis. In ACLU’s fifty years of experience seeking to protect individual rights, it has come to recognize that all human rights are indivisible and that the denial of these rights to any group threatens the rights of all. I am happy to espouse this principle here today.

Interrelation of race and sex discrimination

I have listened to the previous witnesses and wish to associate myself with their testimony which I wholeheartedly endorse, particularly the perceptive comments of Commissioner Wilma Scott Heide and her recognition of the urgency of effective legislative action to remove the barriers to the development of the talents of women in the United States. In view of the thoroughness with which my colleagues have documented widespread discrimination against women in the academic process, in the professions and in other employment, I shall attempt to highlight some areas for emphasis.

As a human rights attorney, I am concerned with individuals as whole human beings, being accorded the respect and dignity which is our common heritage. They are first and foremost persons, quite apart from any other identity they may possess, and as persons sharing our common humanity they are entitled to equal opportunity to fulfill their individual and unique potential. This is our starting point, for in my view it is only as we recognize and hold sacred the uniqueness of each individual that we come to see clearly the moral and social evil of locking this individual into a group stereotype, whether favorable or unfavorable. I have learned this lesson in part because I am both a Negro and a woman whose experience embodies the conjunction of race and sex discrimination. This experience also embodies the paradox of belonging simultaneously to an oppressed minority and an oppressed majority, and for good measure being left-handed in a right-handed world. As a self-supporting woman who has had the responsibility for elderly relatives, the opportunity for education and employment consonant with my potentialities and training has been a matter of personal survival.

Moreover, in more than thirty years of intensive study of human rights and deep involvement in the civil rights movement I have observed the interrelationships between what is often referred to as racism and sexism (Jim Crow and Jane Crow), and have been unable to avoid the conclusion that discrimination because of one’s sex is just as degrading, dehumanizing, immoral, unjust, indefensible, infuriating and capable of producing societal turmoil as discrimination because of one’s race.

The marked parallels in the status of women and of Negroes/Blacks have been documented by historians and social scientists. Whether the point of departure has been a study of women or of racial theories, contemporary scholars have been impressed by the interrelationship of these two issues in the United States. 

The history of western culture and, more particularly, of ecclesiastical and common law strongly suggests that the subordinate status of women (in which they were not considered persons under the law) has provided the models for the subjugation of other oppressed groups. (See e.g. Myrdal, op. cit., Daly, The Church and the Second Sex (1968)). In George Fitzhugh’s famous defense of chattel slavery in the United States in 1850, he analogized it to the position of women and children.

Dr. Montagu has noted that the pattern of antifeminist argument against equality is identical with that of the racist argument. He observed that in the matter of equal opportunities for scientific achievement women have had little chance to obtain employment in the science departments of our colleges as instructors — about 1 to 100. “Deny a particular group equality of opportunity,” he says, “and then assert that because that group has not achieved as much as the groups enjoying complete freedom of opportunity it is obviously inferior and can never do as well.” (op. cit., p. 182). Moreover, he finds the same underlying motives at work in antifeminism as in race prejudice, “namely, fear, jealousy, feelings of insecurity, fear of economic competition, guilt feelings and the like.” He reminds us that this interrelation has persisted right up to the present:

“We know that to gain even so much as a hearing women had to fight every inch of the way. Ridiculed, maligned, opposed at almost every turn, and even imprisoned, the leaders of the women’s movement realized that they would actually be forced to fight — and fight they did. They pitched no battles, although there were a few clashes with the police, but they insisted on making themselves heard¾until they succeeded.

“The leaders of groups upon whom the egregious epithet ‘minority’ has come to be visited would do well to take a leaf out of the suffragettes’ book. In the year 1963 they [Negroes] finally did.” 

The implications of these findings, which are confirmed by my personal experiences and observations, are irresistible. In matters of discrimination, although it is true that manifestations of racial prejudice have often been more brutal than the subtler manifestations of sex bias — e.g. the use of ridicule of women as the psychic counterpart of violence against Negroes — it is also true that the rights of women and the rights of Negroes are only different phases of the fundamental and indivisible issue of human rights for all.

There are those who would have us believe that the struggle against racism is the Number 1 issue of human relations in the United States and must take priority over all other issues. I must respectfully dissent from this view. The struggle against sexism is equally urgent. More than half of all Negroes and other ethnic minorities are women. The costly lesson of our own history in the United States is that when the rights of one group are affirmed and those of another group are ignored, the consequences are tragic. Whenever political expediency has dictated that the recognition of basic human rights be postponed, the resulting dissension and conflict has been aggravated. This lesson has been driven home to us time after time¾in the Civil War, the woman’s suffrage movement, the violent upheavals of labor, and in the Negro Revolt of the 1960’s.

The late Dr. Kyle Haselden, former editor of The Christian Century, once made the perceptive observation that we are all victims of the disease of prejudice. If it is true that, without exception, each of us carries the mote of prejudice in our eye, then it follows that prejudice manifested against one group through discriminatory action may well seek outlets against other groups when such action is prohibited. This theory is suggested in Dr. Montagu’s sober comment on the racial crisis in 1964. He observed:

It is a thought worth pondering whether there may not be some relation between the slackening of prejudice against women and the increase in the intensity of prejudices against ethnic and minority groups; that is, whether a certain amount of displaced aggression is not involved here. Man, it would seem, must have a scapegoat, and for his purposes any distinguishable group will do against which the exhibition of aggression or prejudice is socially sanctioned. It is a likely hypothesis that much of the deep-seated aggression which was at one time canalized in an antifeminist direction today serves to swell the tide of that which expresses itself in race prejudice. 

The converse of this example is also worth pondering. It seems clear that we are witnessing a worldwide revolution in human rights in which traditionally excluded or alienated groups — blacks, women, youth, various ethnic minorities and social minorities, the handicapped, etc. — are all demanding the right to be accepted as persons and to share fully in making the decisions which shape their destinies. Negroes and women are the two largest groups of minority status in the United States. The racial problem has been more visible and periodically more acute because of the peculiar history of black slavery and racial caste which produced a Civil War and its bloody aftermath. The acuteness of racism has forced us to engage in national self-examination and the growing militancy of our black minority has compelled us as a nation to reverse our former racist policies, at least in a formal legal sense. In neglecting to appreciate fully the indivisibility of human rights, however, we have often reacted with the “squeaky-wheel-gets-the-grease” approach and not given sufficient attention to the legitimate claims of other disadvantaged groups — poor Whites, Women, American Indians, Americans of Puerto Rican, Mexican, and Oriental origin, and the like. In so doing, we have often set in motion conditions which have created a backlash and which, if developed to an intense degree, would threaten to destroy the gains which Negroes have made over the past few decades, meagre as these gains may have been for the masses of blacks.

The fact that women constitute more than 51% of the population, the very pervasiveness of sex discrimination which cuts across all racial, religious, ethnic, economic and social groups, and the fact that women have cause to believe they are not taken seriously¾all these combine to make the revitalized movement for Women’s Liberation in the 1970’s an instrument for potential widespread disruption if its legitimate claims are not honored. Given the tendency of privileged groups to retain their power and privilege and to play one disadvantaged group off against another, and given the accelerating militancy of Women’s Liberation, there is a grave danger of a head-on collision of this movement with the movement for Black Liberation unless our decision-makers recognize and implement the rights of all. Dr. Ann Harris in her testimony before this Subcommittee has referred to attempts to satisfy the claims of black militants at the expense of women in institutions of higher learning. Her statement can be duplicated in incident after incident in government, private industry and in education.

The point I am trying to make here is that the United States cannot afford to repeat the costly errors of the nineteenth century in the shrunken world of twentieth century crises. One of these errors was the failure to grant universal suffrage at the end of the Civil War, a failure the political consequences of which are still being suffered today.

The enfranchisement of the Negro male while denying suffrage to all females¾black and white — in 1870 delayed women’s suffrage for a half century during which time Negro males were almost totally disfranchised in the South through legal and extra-legal measures¾the “Grandfather clause,” intimidation, terrorism and lynching. Viewing the aftermath of the Reconstruction in retrospect, one cannot help wondering if the history of that region might not have been vastly different if women had received the vote along with Negro males in 1870. The political emancipation of women in the South might well have eased the transition from a slave society to a society of free men and women. Political power in the hands of white women, in particular, could have reduced the fear of “Negro domination.” Women, black and white, involving half of the population could have brought to bear their influence upon the difficult problems of reconstruction.

It is significant that, whatever other forces may have been at work in the South, a sharp drop in lynching followed the achievement of universal woman’s suffrage in 1920 and the subsequent organization of white church women in the South against lynching. From 1919 to 1929, the number of recorded lynchings in which Negroes were victims dropped from 76 to 7, as the following table indicates: . . . 

The humanizing effect of women’s participation in the civil rights struggle in the South during the 1950’s and 1960’s has not been fully appreciated. Negro women led many of the most crucial demonstrations without loss of life and with superb discipline. I am thinking particularly of Mrs. Daisy Bates, the key adult figure and State Chairman of NAACP in the Little Rock crisis of 1957–1959, involving the integration of nine children in the Little Rock high school. White women took the initiation in organizing Save Our Schools campaigns when the local schools were closed in defiance of the Supreme Court mandate to desegregate Southern schools. When ACLU attorneys, including myself, were preparing the brief on behalf of the plaintiffs in White v. Cook (the landmark decision by a federal court that the Fourteenth Amendment prohibits sex discrimination as well as racial discrimination in jury service), we learned that the Department of Justice was persuaded to file an amicus curiae brief supporting our arguments because Mr. John Doar had discovered through his experience in the civil rights cases in the South that the Department was more likely to get a fair verdict when women were represented on Southern juries.
The emergent [that] revitalized Women’s Rights/Women’s Liberation movement is no historical accident. It was born of the involvement of women in the civil rights movement of the 1940’s, 1950’s and 1960’s. Because it affects a literal majority of the population it has a revolutionary potential even greater than the Black Revolt. It has the compelling force of an idea whose time has come, and neither ridicule nor verbal castigation can delay it. At present it has a controlled fury and a passion which is at times frightening when one realizes the depth of frustration from which it comes. I do not think the male members of this Subcommittee can fully appreciate the extent to which Women’s Liberation has taken hold across the nation if you attempt to view it “objectively” merely through the facts and figures which have been presented here. Women are appealing, demanding, organizing for and determined to achieve acceptance as persons, as full and equal partners with men in every phase of our national life. They sense that we are in a deep national crisis of values, a crisis which makes us more vulnerable to internal disintegration than to destruction by external military attack. Transcending their cry for full equality is the apprehension that nothing less than our national survival is at stake, and they see this crisis in part as the result of our failure to utilize our human resources and release the creative energies which could bring about internal reconciliation and redeem our reputation as a genuine democracy in the eyes of the world.

We, as a nation, have lived through nearly three decades of racial turmoil which at times has approached civil war. I am convinced that one of the reasons we have not solved our racial problem is not so much that “all white people are racists” in the current rhetoric of black militancy, but rather, that we have not faced the more fundamental problem of the healthy relationship between the two sexes. Men have become enslaved by their dependency as well as their dominance. They pay a heavy price in shortened lives, military casualties, broken homes and the heartbreak of parents whose children are alienated from them. Many men find themselves unable to live up to the expectations of “masculinity” which men have defined for themselves, and many are now chagrinned to find that women are no longer willing to accept the role of “femininity” which men have defined for women.

Just as blacks have found it necessary to opt for self-definition, women are seeking their own image of themselves nurtured from within rather than imposed from without. I am led to the hypothesis that we will be unable to eradicate racism in the United States unless and until we simultaneously remove all sex barriers which inhibit the development of individual talents. I am further convinced that the price of our survival as a nation is the sharing of our power and wealth — or rather, the redistribution of this power and wealth¾among black and white, rich and poor, men and women, old and young, red and brown and all the in-betweens.

This requires more than “objectivity.” It demands a sensitivity, a recognition that individual human beings lie behind those depressing facts which have been assembled here. It demands that we women, who are the petitioners before Congress symbolized by this Subcommittee, keep before us the goal of liberating our own humanity and that of our male counterparts. It demands from those who hold formal power — predominantly white males — something closely akin to conversion, the imagination and vision to realize that an androgynous society is vastly superior to a patriarchal society — which we now are — and that the liberation of women through legislation, through a restructuring of our political and social institutions, and through a change of our cultural conditioning may well hold the key to many of the complex social issues for which we do not now have answers.

Discrimination against Negro/Black women

I earnestly hope that this Subcommittee will invite representative women from other minority groups and other economic and social sectors of American life to enrich this record with their views and social concerns. I listened to some of these women a few days ago at the Golden Jubilee Anniversary Conference of the Women’s Bureau, U.S. Department of Labor and believe that they can provide the members of this Subcommittee with valuable insights with respect to the proposed legislation.

It is my special responsibility, however, to speak on behalf of Negro women who constitute about 93% of all nonwhite women, and I wish to call to your attention an article which appeared in the March 1970 Crisis, published by NAACP, “Job Discrimination and the Black Woman,” by Miss Sonia Pressman, Senior Attorney in the Office of General Counsel of the Equal Employment Opportunity Commission and an expert in the law of race and sex discrimination. With your permission, Madam Chairman, I wish to submit a copy of this article for the record together with a “Fact Sheet on Nonwhite Women Workers,” prepared by the Women’s Bureau in October 1966. A more comprehensive document prepared by the Women’s Bureau is the pamphlet “Negro Women in the Population and in the Labor Force,” issued December 1967.

These documents present the special problems of Negro/Black women because of their dual victimization by race and sex-based discrimination coupled with the disproportionate responsibilities they carry for the economic and social welfare of their families as compared with their white counterparts. All that has been reported here with respect to women generally applies with particular poignance to Negro women who, as Miss Pressman points out, are at the bottom of the economic totem pole. Consider the following latest figures from the U.S. Department of Labor . . . 

In 1966 the median income of a nonwhite woman who had completed high school was less ($2,475) than that of a white man who had 8 years of education ($3,681) or that of a white man who had not completed the eighth grade ($2,95). 

Consider the fact that while women generally in the United States are the responsible heads of 11% (5.2 million) of all families, in March 1966, nonwhite women headed one-fourth of the 4.4 million nonwhite families. Nearly 4 out of 10 or 1,871,000 nonwhite families were living in poverty in 1965. Of the 3,860,000 white families headed by a woman, 30 percent were poor. Of the 1,132,000 nonwhite families headed by a woman, 62 percent were poor. 

Although on the average, Negro women have slightly more schooling than Negro men at the elementary and high school levels, their depressed wages stem from the fact they are concentrated in low-paying jobs as service workers and private household workers. Of the 2.9 million Negro women 18 years and over employed in March 1966, 58.5% held jobs as service workers including private household work. When the fact that the 1968 median wage of full-time year round household workers 14 years of age and older was only $1,523 is taken into account, we can understand more clearly why protection against both race and sex discrimination is crucial not merely for the Negro woman as an individual but also for millions of black youth in families headed by black women.

The Negro woman has a higher rate of unemployment, a higher incidence of poverty, a proportionately greater economic responsibility and less overall opportunity than white women or black or white men. If we are genuinely concerned about removing the causes of racial conflict, we must relate the statistics I have just described to the deep anger of black teenage girls and black women. The comparative unemployment rates by sex, color, and age, 1954-66 are depicted in Chart D. Negro Women, p. 10, which has been introduced as an exhibit. You will note the sharp rise in the unemployment rate of nonwhite teenage girls (14 to 19 years of age) coupled with a sharp drop in the unemployment rate for nonwhite teenage boys and a gradual sloping for white male and female teenagers. The rates of unemployment in 1966 are as follows: . . .

The rate of unemployment among nonwhite female teenagers was highest of all . . . 

In the face of these figures, is it any wonder that a black women college student at Brandeis University shortly before the Ford Hall crisis in January 1969 was overheard to say, “Black men get your guns!” I am also reminded of my beloved Grandmother’s constant warning, “Idleness [i.e. unemployment] is the devil’s workshop!”

It is important to recognize that while the appallingly low economic status of Negro women is related to lack of educational opportunity, it is integrally related to dual discrimination. A week ago, June 12, I listened to the Hon. Arthur A. Fletcher, Assistant Secretary of Labor, addressing the 50th Anniversary Conference of the Women’s Bureau and telling the 1,000 women assembled there from every geographical and social sector of the nation the moving story of how his own mother carried the heavier economic load in rearing her children although his father worked hard to do his share. Mr. Fletcher explained that his mother held two college degrees but was forced to support her family by employment as a domestic worker. My own struggle for higher education through college and law school apart from scholarships for tuition was financed by working as a waitress, dishwasher, elevator operator, night switchboard clerk, and bus girl in a large hotel in Washington, D.C. during World War II. In this last job, the waiters whom we bus girls served were all Negro males, but they tipped us only 25¢ per night. Our salary of $1.50 per night plus a second-class meal supplemented by what we could steal from the kitchen constituted our weekly wage. If anyone should ask a Negro woman what is her greatest achievement, her honest answer would be: “I survived!”

Despite these depressing facts, there is a strong tendency throughout government and private industry to emphasize the “underemployment” of the Negro male in relation to the Negro female and to perpetuate the myth of the “matriarchal” Negro family.

It is an open scandal that civil rights groups dominated by Negro male leaders have been instrumental in utilizing manpower programs and other programs of federal assistance to raise the status of Negro male youth while all but ignoring Negro female youth. I hope that this Subcommittee will inquire into the various programs financed by the Office of Economic Opportunity for a breakdown by race and sex. The results might be enlightening.

Let me offer an example of how this type of thinking has affected educational programs for the disadvantaged which are financed in whole or in part by Federal funds. Brandeis University is a coeducational private institution. During the decade 1961-70, it conferred degrees from its College of Arts and Sciences upon 3,583 candidates; of these 1,824 were men and 1,759 were women. These figures would suggest that Brandeis has a liberal admissions policy with respect to women, although there have been reports that women candidates for admission so far outclass male applicants in scholarship that higher standards for admission are required of women in order to keep a parity in numbers between the sexes. (This is not necessarily a reflection upon male applicants to Brandeis. It may well be that superior male students have options to attend such prestige schools as Harvard, Yale or Columbia which, traditionally, have been closed to female students.) The point being made here is that there is no patent evidence of blatant discrimination against women in Brandeis’ admissions policies of regular undergraduates, if we look no further than the number of graduates it produces.

In 1968, however, Brandeis University instituted a program of compensatory education known as the Transitional Year Program (TYP), the purpose of which was to prepare disadvantaged students for the regular course of undergraduate study at Brandeis. Of the twenty-six students accepted for the school year 1968-1969, twenty-three were black and all were male. I do not know whether any women were recruited or applied. I do know that the report of a faculty committee evaluating the program stated: “Although the TYP was originally intended for a predominantly male and largely black group, the present proportions were not entirely the result of conscious effort. The complete absence of women in this year’s program was dictated by the lack of women’s dormitory space on campus.”

It should be pointed out here that $40,000 of the $90,000 used to finance the TYP program for that school year came from Federal anti-poverty funds. Pressures primarily from women faculty members brought about some improvement in the TYP program of 1969-1970. Of the twenty-six students admitted to the program during the past year, 21 were men and 5 were women. (The ethnic division was: 5 White; 20 Black; 1 Spanish-surnamed.) Compare these rates of admission, however, with the Unemployment Rates, by Sex and Age, 1968 and 1969. . . . 

Earlier, it was shown that the rate of unemployment among nonwhite male teenagers in 1966 was 21.2% as compared to 31.1% for nonwhite female teenagers. Thus, if Brandeis University or any other institution were addressing itself realistically to the need for compensatory education in order to make equal employment opportunity a reality, it would seem that the ratio of Black and White females admitted to the TYP program would be at least equivalent to if not greater than that of males. I do not believe that this “discrimination by oversight” or “discrimination by design” is peculiar to Brandeis University or that it is rooted in malice. I think it bears out my assertion that the continued emphasis upon the “underemployed Negro male” and upon the myth of the “matriarchal Negro family” has been a prime factor in the perpetuation of exclusion of disadvantaged Negro females from federally funded programs. Clearly, this situation can be remedied through the proposed amendment to Title VI of the Civil Rights Act of 1964, $601 by adding “sex” as one of the prohibited grounds for discrimination, as HR 16098, Section 805(a) provides.

Prima facie evidence of discrimination against women on college faculties

At the hearing on Wednesday, June 17, Madam Chairman, you expressed the view that in cases of racial discrimination the legal principle has been developed that the absence of a particular racial or ethnic minority on juries or in employment is prima facie evidence of discrimination (in instances where the group in question is present in substantial numbers in the local population). You declared that the same principle should apply to sex discrimination and that the application of such principle would place the burden of overcoming the presumption of discrimination upon the employer institution. You also requested two types of documentation: (1) a comparative study of male and female honor graduates of a particular college or university over a period of years; and (2) a comparative study of male and female faculty members by rank of the same university. I assume that such data would reveal the potential academic resources compared by sex and the degree to which this potential is fulfilled at the faculty level.

I have obtained such information from my own institution, Brandeis University, and wish to introduce into the record three tables as follows. . 

These tables show that while women represent 49.1% of all degrees conferred by the College of Arts and Sciences during the ten year period 1961-1970, they took 51.7% of all honors and 40.2% of the highest honors. Yet they constitute only 11% of the Arts and Sciences faculty and only 6% of all full professors. Women obviously constitute a vast potential source of superior scholarship as well as models for oncoming women students to excel in the fields of their interest.

These figures, however, show that this potential is not being utilized at the faculty level and pose certain questions which apply not merely to Brandeis University but to all of the major institutions of higher learning in the United States. To what degree are promising women students encouraged to go on in graduate work? What percentage of them are offered scholarships and teaching fellowships in order to facilitate their graduate study? To what degree does a university like Brandeis, for example, try to place its women Ph. D’s in other university settings if it wishes to avoid “in-breeding,” and with what success? How many of its women graduates have won Alumni Awards? How many deans and other top-level administrators with special knowledge and insights into the problems of women students have been appointed? How aware are faculties and administrators of affirmative action programs which would accelerate policies of increased employment opportunities for women at all levels at the institution? These questions have a special relevance to an institution whose graduates are fairly evenly divided between the sexes and which depends heavily upon women supporters for fund-raising activities and potential financial support.
I have no figures for the number or percentage of women who hold tenured faculty positions at Brandeis, but would hazard a guess that it is lower than their ratio of full professors. Nor do I have any figures on the percentage and rank of women faculty members over a period of years, but it is my impression that Brandeis has increased the number of women on its faculty during the past two years.

In evaluating the data presented in Tables 1-3 above, we should bear in mind that Brandeis University is a comparatively young institution — barely 22 years old — compared to the more tradition-bound, male-oriented institutions such as Harvard, Yale or Columbia. A co-educational, non-sectarian institution from its inception, Brandeis University was born in an international climate of opinion which produced the United Nations Universal Declaration of Human Rights, and indeed, the late Eleanor Roosevelt was on the Brandeis faculty for several years. It has been a pioneer in innovative programs, particularly with respect to foreign students and disadvantaged students. It has a capacity for flexibility and innovation not normally associated with larger, more moribund institutions, and therefore can be expected to institute a self-corrective process to overcome its underutilization of women as it has done in the case of Negro/Black students and faculty.
Having said this, however, one must add that it is precisely because of Brandeis’ outstanding reputation for excellence in scholarship and for liberal innovations that the Tables presented above underscore how pervasive is the face of male domination of institutions of higher education in the United States. For at Brandeis, women students have demonstrated unquestionably their ability on par with men. The wide gap between their performance and their employment opportunities is an indictment of a society which tolerates unjustifiable inequalities based upon sex.

A theory of educational and employment opportunity

In seeking to assert their rights to equal opportunities for education and employment, women have often been frustrated by narrow interpretations of federal policies which distinguish between educational opportunity and employment opportunity. I offer the theory that in the academic process, the opportunity for education, particularly at the graduate level, may be considered as an integral part of the employment process, since it represents access to academic employment in the universities. A graduate degree is in most instances an indispensable qualification for appointment to a university faculty. Protection against discrimination at the appointment level is meaningless unless such protection extends to every avenue of access to such appointment.

This principle has been applied in analogous situations. For example, the Supreme Court has held that the Constitution forbids racial discrimination in voting in primaries of political parties where the primary is an integral part of the electoral process. Similarly, the graduate program of a university which seeks to prepare scholars for academic employment is analogous to an apprenticeship training program in industrial crafts, and should be so interpreted. Further evidence of the recognition of need for protection of the right of access to employment opportunity is provided by legislation which extends the law of equal employment opportunity not merely to employers but also to labor unions and employment agencies, which are agents of access to employment opportunities. I respectfully urge this Subcommittee to consider this theory in developing the legislative history of proposed legislation in this area.

Inclusion of “sex” in all anti-discrimination legislation

In light of the overwhelming evidence of discrimination against women in many areas¾housing, public accommodations, criminal law, education, employment, marital status, etc. — developed by the testimony in this hearing or by references to studies, and in light of the need to protect all groups of minority status from actual or potential discrimination, as a rule of thumb all anti-discrimination laws and policies should automatically include “sex” as a prohibited ground of discrimination. The fact that in certain areas sex-based discrimination may not be widespread or may affect relatively few women is not a sufficient objection to this recommendation. The Constitution of the United States by its terms protects individuals in their civil rights and civil liberties. The Due Process Clause and Equal Protection Clause of the Fourteenth Amendment apply specifically to “any person.” Similarly, the Fifth Amendment declares that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Thus, one act of discrimination against one person because of his/her sex should be sufficient to invoke legislative protection.

I would therefore urge that this Subcommittee or an appropriate Committee of the House consider legislation to amend not only Title VI but also Titles II and IV of the Civil Rights Act of 1964 to include “sex” in every provision which now contains the words “race, color, religion and national origin.” I would also urge that all housing anti-discrimination legislation be similarly amended as well as all legislation prohibiting discrimination in jury service.

Sec. 805(a).¾Section 805(a) of H.R. 16098 (which proposes to amend Title VI, Sec. 601 of the Civil Rights Act of 1964 to include “sex” in prohibiting discrimination in federally assisted programs) would close a significant gap in the fair administration of these programs. The massiveness of federal financial aid and the variety of activities which receive federal assistance will perpetuate discrimination against women in a wide area of services and facilities unless sex discrimination is outlawed.

Moreover, the inclusion of “sex” in the provisions of Title VI would discourage the backward trend which is beginning to emerge in some areas of the South, as local school authorities develop plans for racial desegregation of public schools through the device of segregating schools on the basis of sex. Federal courts in Louisiana, Mississippi and Virginia have approved such plans despite the opposition of many of the boys and girls affected, and reportedly the Department of Justice has acquiesced. I submit that a public school segregated on the basis of sex in a male-dominated society contains seeds of psychological damage to the self-image of girls not unlike that condemned by the Supreme Court in Brown v. Board of Education. It would seem that segregation of the sexes when they are young ill prepares them for the close interaction they will experience in their adult relations and, indeed, may aggravate the tensions between the sexes in later life.

As presently written, Title VI excludes from coverage “any employment practice of any employer . . . except where a primary objective of the Federal financial assistance is to provide employment.” The inclusion of “sex” in that title would not remedy discrimination against women seeking academic employment unless, as I have already suggested, the right to equal opportunity in employment can be interpreted to include the right of access to such employment. In other words, the qualification contained in Section 604 of Title VI should be held not to apply to those federal funds which provide for graduate scholarships and fellowships, particularly teaching fellowships or training programs, and which lead to degrees which are an indispensable qualification for academic employment.

Sec. 805(b): Amendment of Title VII to remove exemption of educational institutions. — Section 702, Title VII, of the Civil Rights Act of 1964, declares that Title VII shall not apply “to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.” The legislative history of Title VII indicates that this exemption was not in the bill as originally passed by the House but was inserted as part of the Dirksen compromise bill which was finally passed by the Senate and ultimately became law. A memorandum prepared by Kathryn G. Heath describing the legislative history of Section 702 which is appended to Dr. Bernice Sandler’s testimony) indicates that there is no Congressional statement which seeks to justify the inclusion of this exemption. One can assume that it was inserted as a result of political pressures. Male members of the academic community do not differ essentially from industrial craftsmen who resist governmental interference with their seniority systems even though such systems have a built-in exclusion of disadvantaged groups suffering from past discrimination. The testimony adduced before this Subcommittee amply demonstrates that this exemption is an effective barrier to equal employment opportunity for women seeking professional or academic positions in educational institutions and therefore should be eliminated.

However, Section 805(b), standing alone would apply only to private educational institutions, since Section 701(b) of Title VII which defines the term “employer” expressly excludes from coverage “an agency of the United States, or an agency of a State or political subdivision of a State.” In other words, publicly-supported institutions of learning, whether public schools or state col leges, would not be affected by the enactment of Sec. 805(b) and therefore the remedy for conditions at a state university which Dr. Ann Scott described on June 17 would not be effected as Sec. 805(a) now stands. An amendment is needed which will remove both public and private educational institutions of learning from exemptions, by providing an exception to Sec. 701(b) of Title VII in the case of educational institutions.

However, in view of the reports of the United States Civil Service Commission which indicate that in spite of an eight-year-old federal policy of equal employment opportunity without regard to sex, women have made few gains in the higher-paying grades, I would urge this Subcommittee to consider legislation which specifically forbids the United States or any agency thereof, or any State, State agency, or political subdivision thereof to discriminate in employment on grounds of race, color, sex, religion, national origin, age or any other non-merit factor.

Sec. 805(d): Removal of exemption of executive, administrative, professional, academic or administrative personnel or teachers in elementary or secondary schools from equal pay provisions of Fair Labor Standards Act. — The Equal Pay Act of 1963, as you know Madam Chairman, was adopted as an amendment to the Fair Labor Standards Act and consequently inherited the limitations and exemptions which were provided in that Act. One of these limitations was Sec. 13(a)(1) which declared that the Fair Labor Standards Act should not apply to “(1) any employee employed in a bona fide executive, administrative, or professional capacity, including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools.” Whatever conditions justified this exemption with respect to wage and hours standards, if indeed it can be justified at all, these conditions have no reasonable relation to equal pay for equal work. Moreover, it is precisely in the areas included in this exemption that women suffer the most acute discrimination. The concentration of women in lower-paying jobs in industry, for example, offers no threat to male employees who hold professional and highly technical positions. Furthermore, professional workers on a salaried basis per annum do not customarily think of their earnings per hour or develop expectations of overtime compensation (perhaps they should). Equal pay for equal work, however, is a different story. It is in the professional fields and managerial occupations that women equally qualified by training and ability with men are paid less for jobs requiring substantially the same skills but which are often given different labels or downgraded by various subterfuges. The administration of the equal pay amendments to FLSA since 1963 provides numerous illustrations of inequalities in pay based upon sex and in which an employer attempts to justify such inequities by bringing himself within one of the exemptions of the Act. Sec. 805(d) would extend protection of women against sex bias to significant areas not presently covered by law.

Sec. 805(c): Addition of “sex” to jurisdiction of U.S. Commission on Civil Rights. — Although it is clearly indicated by previous testimony that there is an urgent need for studies and reports in the area of sex-based discrimination to be carried on by a continuing federal agency such as the United States Commission on Civil Rights (USCCR), I am not sure whether the addition of “sex” to the jurisdiction of the USCCR as provided by Sec. 805(c), as a practical matter, is the best answer to this need. Women constitute more than half of the total adult population, a group larger than the combined totals of all groups which conceivably might be covered by the Civil Rights Act of 1957 (42 U.S.C.) which established the U.S. Commission on Civil Rights and specified the jurisdiction of that agency with respect to denials of protection against discrimination because of race, color, religion or national origin. The functions of the Commission are investigative, information-gathering, appraisal of laws and policies, and acting as a national clearing house for information in the area of its competence. It well may be that institutional as well as individual discrimination against women is so pervasive and affects such a massive proportion of the total population that these functions could best be performed by a single agency equipped with the powers of the U.S. Commission on Civil Rights. Such an agency might have the independent status of a fact-finding, investigative or regulatory agency.

The one agency in the Federal Government which has traditionally had the responsibility for improvement of the status of women is the Women’s Bureau now lodged in the Wage and Labor Standards Administration of the U.S. Department of Labor. I would strongly urge that an appropriate Committee of the House seriously consider whether the Women’s Bureau might be the best qualified agency by tradition, experience, expertise and performance to undertake in the field of sex-based discrimination functions parallel to those of the U.S. Commission on Civil Rights. Obviously, to perform these functions adequately would require an enlargement of the powers of the Women’s Bureau and vastly increased funding of its operations.

In closing, I wish to express my gratitude to you, Madam Chairman, and to the other members of the Subcommittee for inviting me to appear. I hope the views expressed will be helpful to your body in its further deliberations upon proposed legislation to eliminate discriminatory practices based upon sex.

Thank you.



Source: Hearings Before the Special Subcommittee on Education of the Committee on Education and Labor, House of Representatives, Ninety-First Congress, Second Session, on Section 805 of H.R. 16098 (Washington DC: US Government Printing Office, 1970), pp. 328-341.