E.D. Rights Chief Considering End To Investigations
The Education Department's top civil-rights official has asked his aides to study whether his office may eliminate compliance reviews, one of the government's main tools for enforcing anti-discrimination laws.
The department is currently required by federal regulations and court orders in a longstanding civil-rights lawsuit to conduct such reviews.
In a March 18 memo obtained by Education Week, Harry M. Singleton, assistant secretary for civil rights, asked the operations support service within his agency to determine whether the office could simply offer advice to schools and colleges on means of avoiding discrimination--a practice called technical assistance--rather than conducting compliance reviews.
Typically, compliance reviews have involved exhaustive investigations of an institution's policies and practices.
In a July 9 memo responding to Mr. Singleton's request, an OCR staff member pointed to the federal regulations and court orders requiring the office to conduct such reviews. Any move to do away with them, the aide said, would appear to be legally suspect.
In the memo, Frederick T. Cioffi, acting director of the OCR's policy and enforcement service, suggested that "the initiation of the proposed project be delayed until a thorough analysis of the legal issues has been completed."
The issue is expected to be raised at the second of two Congressional oversight hearings, to be held this week.
Mr. Singleton acknowledged through a spokesman that he had asked his staff to determine whether technical assistance could be used to eliminate compliance reviews.
"The purpose of the question was not to direct them to make any particular finding," said the spokesman, Thomasina V. Rogers. "There has been some question pending as to the part technical assistance should play in the OCR's compliance efforts. Mr. Singleton wanted full consideration of all the alternatives."
Ms. Rogers said Mr. Singleton agreed there were some "serious legal impediments" to the proposal, and said it was returned to the operations-support staff this month "to analyze the legal implications in conjunction with the policy and enforcement service."
In his March memo, Mr. Singleton requested that the operations support service study the "feasibility of assessing the impact of technical assistance as compared to the impact of compliance reviews."
At the bottom of the memorandum, which was signed by Mr. Singleton, a handwritten note by the assistant secretary questioned whether technical assistance "can be used to eliminate the need for compliance reviews in certain circumstances. In all circumstances?"
Reacting to the possibility that OCR plans to replace compliance reviews with technical assistance, Marcia Greenberger, managing attorney for the National Women's Law Center said: "I cannot imagine a more public statement of [the agency's] intent to forego serious enforcement efforts."
Complaint and Compliance
The OCR has two primary means of enforcing compliance with federal civil-rights laws barring discrimination in the areas of race, sex, and handicap: complaint investigations and compliance reviews.
The agency investigates individual complaints that come from organizations or parents. It also conducts compliance reviews of institutions, either randomly selected or chosen through the use of federal civil-rights statistics.
Such reviews investigate possible discrimination problems and work with the institution under review to try to alleviate any existing problems within a specified amount of time. If the institution does not resolve the problems voluntarily, the agency has the power to cut off federal funds.
Technical assistance is provided by the agency to schools and colleges to help them voluntarily obey civil-rights laws. Civil-rights lobbyists have pointed out that, unlike the compliance-review process, the provision of technical assistance does not require the OCR to identify violations of civil-rights laws.
It also does not require schools to work within a specified timetable to resolve any problems and does not provide for sanctions if the schools do not comply with the laws.
According to an Aug. 16 internal memorandum from Frederick Tate, director of the agency's operations support service, that was sent to Mr. Singleton along with Mr. Cioffi's memo, under the process envisioned by the OCR, the agency would offer technical assistance to schools selected for compliance reviews.
Under the plan, a compliance review would be undertaken only if a school refused technical assistance.
Work Plan Submitted
According to a work plan submitted with Mr. Tate's memo, the OCR would first identify those factors in a decision to conduct a compliance review that might suggest technical assistance would be more appropriate. The plan says such factors would include "issues that are most problematic through compliance reviews, issues with unclear policy, complex issues."
The second step would be to deter-mine the legality of offering technical assistance to recipients of Education Department fund selected for compliance reviews.
But civil-rights advocates and former agency officials said last week that the "complex" discrimination issues that the work plan suggests would lead to technical assistance are the very ones that should be addressed in a compliance review.
They also pointed out that if technical assistance is offered in lieu of compliance reviews, the OCR could delay investigations indefinitely, and that even if the agency supplies technical assistance and the school agrees to comply, the OCR might never follow up with an investigation.
In his August memo, Mr. Tate estimated that it would take 90 days to complete the activities listed in the work plan.
The question of whether the agency could legally implement such a process was raised in the memorandum from Mr. Cioffi.
It stresses that both the Code of Federal Regulations and court orders in the major civil-rights lawsuit Adams v. Bennett obligate the OCR to perform compliance reviews.
The OCR has been under a court order, known as the Adams decree, since 1973 to abide by certain timetables in investigating and enforcing civil-rights laws.
According to a 1977 order issued by the court, the Education Department "shall conduct an appropriate number of compliance reviews to ensure adequate enforcement of the applicable laws."
The Code of Federal Regulations stipulates that "the responsible Education Department official or his designee shall from time to time review the practices of recipients [of federal funds] to determine" whether they are complying with federal anti-discrimination laws.
Elliott C. Lichtman, the lawyer for the plaintiffs in the Adams case, said that "a fair reading of the order would require OCR to seek modification of existing court orders" if the agency intends to substitute technical assistance for compliance reviews.
Mr. Cioffi states in his memorandum that "in the past, OCR has always carefully distinguished between its statutory responsibilities for ensuring compliance through complaint investigations, compliance reviews, and monitoring activities and its [technical-assistance] activities, which attempt to bring about voluntary compliance but do not attempt to ensure that recipients are in compliance. As proposed, the project appears to eliminate this distinction between OCR's compliance responsibilities and its [technical-assistance] activities."
Mr. Cioffi goes on to say that "OCR is statutorily required to eliminate discrimination. If OCR provides [technical assistance] in lieu of performing a compliance review, can a recipient which has received [technical assistance] legally be considered in compliance?"
According to the agency's 1986 annual operating plan, from Oct. 1, 1984, to March 31, 1985, the OCR initiated 88 compliance reviews and closed 87, some of which had been started before fiscal year 1984. As of last March 31, it had 148 compliance reviews in progress.
Education Department records show that since 1978, OCR has completed between 200 and 300 compliance reviews per year.
Many precollegiate and collegiate institutions have complained that compliance reviews are time-consuming, costly, and unnecessarily burdensome. But until now, OCR has consistently held that such reviews are one of its most effective enforcement tools.
In a court brief filed in the Adams case in 1983, the lawyers for OCR noted that compliance reviews, rather than complaint investigations, "are broadly recognized to be more effective as a means to achieve enforcement."
Began in 1981
Antonio J. Califa, former director of the agency's policy and enforcement service, said the idea to eliminate compliance reviews was initially raised in 1981, when the Reagan Administration first attempted to modify the regulatory structure of a number of statutes, including Section 504 of the Rehabilitation Act of 1973, which OCR is responsible for enforcing. Vice President Bush was charged with the task of finding ways to ease the burden of federal regulations.
Early Administration plans also included a proposal to consolidate all civil-rights enforcement activities within the Justice Department. However, intense Congressional opposition forced the plans to be shelved.
The March 18 memorandum from Mr. Singleton "is all part of the same piece," said Mr. Califa, who left the agency this summer after eight years. "The whole drive of the Reagan Administration has been along this line. Let's give them technical assistance, let's get away from confrontation."
"They assume knowledge is power and if you get the knowledge out there, the problem will go away," he added. "But that's not true, because complying with anti-discrimination laws often means the school has to pay a price both financially and politically."
Mr. Califa said he was aware that the memorandum existed while he was still employed at the agency, because "it's such a radical proposal."
"It's the carrot without the stick... and if there's no stick for the carrot, then you end up with nothing," he added.
'Perversion' of Role Claimed
If the OCR were to eliminate compliance reviews in favor of technical assistance, "they would not even be looking at where the most serious problems lie," said Phyllis McClure, director of the Washington branch of the NAACP Legal Defense Fund Inc.
"Technical assistance is helpful and should be provided when people ask for it, but it's a total perversion of the agency's role as an enforcement agency to do nothing but technical assistance," she added. ''It's as if the city police told people, 'We're going to give you technical assistance on how to obey traffic laws, but we're never going to give you a ticket."'
Vol. 05, Issue 02, Pages 1, 13