Of Equal Opportunity and Other Bureaucratic Intrusions

A revolution has taken place in American life and thought. Few have taken note of it, and even those who have seem unaware how radical the change has been and how important the long-range implications are for us all. The revolution is in the relation of the government to higher education.

One great strength of the American way has been its careful separation of powers. We have just gone through a traumatic reaffirmation of the integrity of the legislative and judicial branches in the face of pressure from the executive branch. In another balance of power we have historically declared that the family, the church, the school, and the press are to be free from governmental control. Recent Supreme Court decisions have reaffirmed the separation of church and state and the freedom of the press, but a vast change has occurred in relation to the school.

As late as the 1930s the federal government had little or no control over higher education. Laws such as those providing for social security, workmen’s compensation, and unemployment insurance, binding upon almost every other sector of society, specifically exempted educational institutions.

Just a little over two decades ago the Commission on Financing Higher Education declared that the strength of higher education was in its freedom and that this freedom “must be protected at all costs.” It predicted that federal financing would bring federal controls that would be destructive to originality and diversity and would finally produce uniformity, mediocrity, and compliance. But in 1952 this was only a prediction.

Independence characterized American higher education from its start. When Harvard College was founded in 1636, the question was raised as to whether it could grant a degree. In England at that time, Oxford and Cambridge had royal charters to grant degrees and thus had a monopoly on higher education. With their religious tests for admission they gave to the Anglican church a favored position that guaranteed both a political and a religious elite. In 1642 when President Henry Dunster and his colleagues assumed for Harvard the right to grant degrees, they assumed a right reserved in England only for those institutions with special royal favor. Less than a century later Yale College followed suit. The result was that when the Revolutionary War broke out, nine institutions in the young republic were granting degrees that only Oxford and Cambridge could give in England. The groundwork was laid for equal educational opportunity for all, and that without governmental involvement. The result has been an educational system unique among the nations of the world.

Despite the urging of many, the U.S. government has never established a national university. It has entered the higher educational domain only with its service academies like West Point and Annapolis, though even here the accreditation of the academic programs has never been done by the government. The value and acceptability of the work in these national academies is determined by regional accrediting agencies in the private sector.

We have benefited from this “arm’s length” relationship. President Derek Bok of Harvard in his most recent presidential report was able to say without fear of contradiction:

“In an era of universal dissatisfaction, it is well to begin by pointing out that our system of higher education, for all its faults, has emerged as the best in the world in the eyes of almost every qualified observer. In terms of the quality of our research, the eminence of our leading universities, the degree of access afforded to all groups and income strata, and the responsiveness of the system to widely varying student needs, higher education in this country has no equal. Preeminence of this kind is a precious asset. It is a status that cannot be claimed for the quality of our government service, the achievements of primary and secondary education, the performance of our labor unions or the record of many of our older institutions” (The President’s Report, Harvard University, 1974–75, p. 5).

The values of this independent educational system to our country have been incalculable. Persons educated in institutions not controlled by the government were able to develop their minds and critical faculties freely and bring them to bear fearlessly upon our national problems. What a resource!

Unquestionably the freedom of Americans to organize religious colleges that grant accredited degrees (a privilege almost unknown outside the United States) has been a major factor in the strength of the religious element of American life. No religious group was by governmental decree kept on the margin of American life. The center was open to all.

But the careful respect by the government for the independence of the educational world is long gone. Non-involvement has changed to intrusion, respect to financial and regulatory control. The extent is frightening.

President Bok reports that compliance with federal regulations in 1974–75 at Harvard consumed over 60,000 hours of faculty time. President Willis Weatherford of Berea College says that one-fourth of his time this past year has been spent on governmental matters. Bok estimates that the cost to Harvard in the same year was between $4.6 million and $8.3 million. The American Council on Education reported in 1975 that the equivalent of 5 to 18 per cent of tuition revenues was spent on the implementation of federally required social programs. Change magazine estimates that the cost of such programs to higher educational institutions last year equaled the total of all voluntary giving to such institutions, just over $2 billion. So we run our development programs, not to sustain or strengthen our educational program, but to appease the government so that we can stay in business.

Nor is the cost in dollars and time alone. In most meetings of educational organizations today, any creative discussion of education is at a disadvantage in competing for a place on the agenda with the problems of governmental regulations. Energies that should go into education are spent elsewhere. The 1952 warning of the Commission on Financing Higher Education that heavy federal involvement would produce mediocrity and uniformity will soon be fulfilled simply by preemption. Time, energies, and resources necessary for first-rate education will have been spent on compliance.

The problem now is more than one of intrusion. It is rapidly becoming one of control. Federal regulations now determine decisions in areas once considered vital to academic integrity. Decisions on admission, selection of faculty, curriculum, and expenditure of institutional funds that could once be made with eyes wholly on the quality of the educational process must now be made with one eye on a multitude of federal regulations. Many decisions once made by school administrators are now being made by the decrees of bureaucrats in Washington.

Someone may say that the schools deserve their fate because they were foolish enough to accept federal funds. A number of administrators felt that with federal money would come controls, and so they courageously resisted the urge to enjoy the benefits of government aid. It is instructive to see how they have fared. One regulation from the Department of Health, Education, and Welfare on July 21, 1975, simply redefined the term “recipient” of federal financial assistance. Title IX of the Education Amendments of 1972 declared any institution to which “federal financial assistance was extended directly or through another recipient” (italics mine) to be officially and legally a recipient of federal aid and thus bound by all the governmental regulations that control such recipients. To have one veteran attending on the G.I. bill puts the institution in the “recipient” category. No institution is now exempt. President Kingman Brewster of Yale suggested that the government’s philosophy is, “Now that I have bought the button, I have a right to design the coat.”

How did this involvement become so deep so fast? It was not done without reasons, even good reasons. The Second World War, Sputnik, and the post-war social problems made all America aware that scientific discovery and new knowledge were essential to national security and well-being. The best place to get these things was in the colleges and universities. Their resources were not substantial, and so the government offered assistance. With assistance, though, goes accountability, and with accountability, controls. Then came the quickened social conscience of the fifties and sixties. The government assumed responsibility for guaranteeing social justice, equal opportunity, and consumer protection. When the passage of laws did not seem to be enough, other means were sought. “Reception” of federal monies became the key. Executive orders and bureaucratic regulations followed that produced the maze in which we are now trapped.

All this happened in a period of great difficulty for the colleges and universities. They were all struggling with inflation, recession, and declining enrollments. Private colleges were unsure they could survive, and many pled for help from Washington. When survival and integrity are the options, integrity finds itself upstaged.

In a society where great social programs like those adopted within the last forty years involve the great majority of our citizens, the federal dollar is almost omnipresent. The young share in educational-assistance programs and the old in social security. Every tax-exempt organization stands in a federally protected position. Reception of benefits from a federal program became the key to getting near universal compliance with the federal strategies for achieving social justice, equal opportunity, and consumer protection. Executive orders and bureaucratic regulations followed that now are covering us all.

But the cause is good. To object is to fight virtues more noble than motherhood and love of country. Should we not comply joyously?

Some observations are in order here. First, there is a difference between law and regulations. Congress passed a law against discrimination on the basis of sex. Thirty-seven words of law were turned by HEW into eighteen triple-column pages of fine print. When legislators who passed the law learned of the contents of the regulation, many of them insisted that they had not intended this when they passed the law. The regulation carries the same weight as law. Yet none of these rules and regulations has ever been voted upon directly by the people who represent the electorate. And some suggest that it would be an intrusion of the legislative into the executive domain for Congress to get very concerned about this. Anonymous writers of regulations beyond the reach of the people, what some call “the fourth branch of government,” are now determining the character of much of American life.

Second, our government is now becoming the judge of matters of deep religious import. Some areas intended by the writers of the Constitution to be kept inviolate from governmental intrusion are now under federal regulation. Consider four areas of concern under Title IX:

Marital status. In the Christian religion, marriage is held to be an enduring, God-ordained relationship. Every Christian institution wants to put examples of marital success and stability before its young. Yet today a Christian college “shall not make pre-employment inquiry as to the marital status of an application for employment.” Thus reads Section 86.60(a) of Title IX of the Education Amendments of 1972.

Pregnancy. In the Christian perspective, the conception of a child within a proper marriage is a reason for joy; outside marriage it is tragic and wrong. Yet according to current federal regulations, pregnancy outside marriage is to be considered a “temporary disability.” A Christian college is now precluded from dismissing or disciplining a teacher or administrator for an extramarital pregnancy, and from refusing to hire an applicant on these grounds. The regulation, Title IX, Section 86.57(b), holds that we “shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.”

Abortion. To the Christian, the sacredness of human life has the binding effect of law. The termination by one person of another’s life is a religious question. Yet we are not to discriminate against an employee or applicant for “termination of pregnancy.” It is now wrong to treat a person, single or married, who has an abortion differently from one who develops the flu.

Human sexuality. The Scripture says that in the beginning God made human beings male and female. In other words, one’s sexuality or gender is not an accident of nature but an essential part of one’s personhood. It is not like race or national origin. There is a profound difference between a male and a female, a divinely wrought difference. One’s fulfillment individually should be sought in terms of one’s divinely wrought personhood. Therefore a truly Christian educational program must on occasion recognize the gender difference and treat people for what they are, male or female, in order not to discriminate against them. But that is now counter to federal regulations.

Academic freedom and religious liberty have been vital parts of the atmosphere that has enabled American democracy to flourish. Both are fragile and need some protection. It is an illusion to think that political liberty will long survive if these freedoms go. Today the balance that has made possible American academic freedom and American religious liberty, to the envy of much of the world, is threatened. How tragic if in the fight for social reform, very valid in its own right, we should destroy the integrity of the institutions essential for achieving social justice and equal opportunity.

Few people are aware of the unique role that evangelical colleges have played in the development of America and in producing Christian leadership for the world. A look at Christian leaders around the world will show that a handful of small schools have had a disproportionate influence. These are a priceless resource that we can ill afford to lose now. Some semblance of autonomy, both financial and philosophical, is essential if they are to survive. They never have flourished elsewhere. If the trend of the last decade cannot be reversed, they will not survive here.

If they go, it will not be the Christian world alone that suffers. The conditions under which they flourish are the same as those required for a truly free university. If a government can impose its secular moral philosophy upon all our institutions today, it can impose its political philosophy tomorrow. The pattern and the machinery will already be in place. More than academic or religious freedom is at stake.

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