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Civil-Rights Unit Shirks Its Task, 2 Reports Charge

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Washington--The agency responsible for enforcing federal civil-rights laws in education has failed to issue consistent enforcement guidelines, discouraged prosecution of certain types of bias complaints, negotiated insufficient remedies, and declined to monitor them for compliance, according to two new highly critical reports.

Both reports provide new evidence buttressing criticisms that have frequently been leveled at the Education Department's office for civil rights in hearings and legal actions during the past eight years.

"Notwithstanding intense judicial and Congressional scrutiny since 1981, ocr's leadership has relentlessly undermined the civil-rights statutes entrusted to it," the majority staff of the House Education and Labor Committee concluded in one of the reports.

The report, which was not endorsed by the full committee, is the first in recent years to assess ocr's performance partly on the basis of interviews with the officials who carry out the agency's policies from 10 regional offices. Committee staff members visited 6 of the 10 regional offices and analyzed data and information provided by the ocr headquarters in Washington.

The interviews revealed, the report said, that there was a "clear perception among the regional office staff that certain issues were 'off limits' and could not be investigated ... unless there were 'horror stories'--facts of such egregiousness that a finding other than discrimination was not possible."

The second report is a chapter in a forthcoming study of civil-rights enforcement during the Reagan years that also examines efforts to end discrimination in areas such as higher education, housing, and employment.

"Since 1981, federal civil-rights enforcement has deteriorated dramatically," concluded the second study, which was compiled by the bipartisan Citizens' Commission for Civil Rights.

Together, the reports portray an ocr whose enforcement efforts were hampered during the Reagan Administration by mismanagement and the reluctance of top officials to develop and disseminate policy guidelines needed for consistent enforcement by regional officials.

A top agency offical disputed the findings in a letter included with the Congressional report, saying that it is "replete with inaccuracies and misperceptions about ocr's role."

"It appears that after almost one year of studying ocr, the committee's majority staff does not understand how this agency must function under the statutes we enforce and which govern our operations," wrote Legree S. Daniels, assistant secretary for civil rights, in a three-page letter dated Nov. 7, 1988, in which she reviewed the committee's preliminary findings.

Department officals last week refused to elaborate on the rebuttals contained in Ms. Daniels's letter, saying they had not yet reviewed the committee's final report. They also refused to comment on the Citizen's Commission report for the same reason.

"This is the most comprehensive investigation of ocr I have ever seen," said Phyllis McClure, a director of the naacp Legal Defense and Educational Fund Inc., referring to the Congressional committee's report.

"The real tragedy is that Legree Daniels and her advisors have not grasped this report as an opportunity to acknowledge that some problems exist and try to get on top of them," she said, "rather than drawing up the wagons and being defensive."

The primary significance of the committee's study, Ms. McLure said, is that many of the charges leveled in the report were made by career civil servants, rather than outsiders with a history of criticizing the agency.

Based on the regional-office interviews, the report concluded that:

"There was a consensus among the ocr regional-office staff that few useful, substantive policy directives have been issued since 1981." This fact, they said, made it "difficult to analyze complex and unique cases because there was little in writing and no predictability as to headquarters decisions in such cases."

In her letter, Ms. Daniels responded to this charge by saying that "ocr headquarters office has developed and disseminated a substantial body of policy over the past several years."

"When legal decisions are submitted to the field offices, and are motivated by other than legal considerations, they are never reduced to writing, according to the ocr staff. This ad hoc policymaking cannot be challenged, however, because there is nothing in writing to evidence such a policy."

Regional staff held a "clear perception ... that certain issues were 'off-limits' and could not be investigated." Most of these issues involved racial discrimination, including practices such as student disciplinary actions and the placement of black students in special-education programs, they said.

"The national office made it virtually impossible to find a violation of the civil-rights laws because the standard of proof required to establish a violation was a stringent 'intent' standard, which many regional-office staff interviewed believed was not required by the courts."

While ocr settled a majority of complaints with letters that announced that violations had been found and corrected, "little substantive monitoring [of remedial agreements] has actually taken place, particularly because the regional offices are not credited with conducting meaningful follow-up of such cases."

"Staff expressed a clear and undeviating concern for the lack of classroom training, orientation programs for new employees, and refresher courses for more experienced investigators and lawyers."

"As a consequence of the narrowing of time allotted to investigate a complaint or conduct a compliance review, ocr regional-office staff indicated that the scope of issues for investigation is being narrowed.''

"Several ocr staff also admitted that they encourage complainants to to withdraw complaints in order to decrease the complaint load and to diminish pressure to investigate and close cases within [court-ordered] time frames. As an alternative, staff would urge complainants to 'clarify' their allegations in order to narrow the scope of the complaints."

The Citizens' Commission report documents many of the same problems, as well as a host of other criticisms leveled at the ocr during the Reagan era.

A summary version was released last month, but a set of background papers detailing the major findings and conclusions of the summary is not scheduled to be released unitl next month.

Education Week obtained a draft copy of the chapter on elementary and secondary education, which was written by Elliot Mincberg, a lawyer specializing in education litigation with the Washington-based firm Hogan & Hartson; Naomi Cahn, a lawyer and sex-discrimination specialist at Georgetown University Law School; Marcia R. Isaacson, a lawyer with Dewey, Ballatine, Bushby, Palmer, and Wood in Washington; and James J. Lyons, legislative counsel for the National Association for Bilingual Education.

The commission's report takes ocr to task for accepting "numerous settlements since 1981 which rely on general premises or assurances and otherwise simply fail to correct violations of law."

Many of the settlements resulted from negotiations between ocr staff and the subjects of investigations before a formal finding of discrimination had been issued by ocr--a process that drew criticisms from the authors of both reports.

In her response, Ms. Daniels wrote that "ocr has found [these] settlements to be an effective, legally supportable practice and believes that the criticisms leveled at this activity by the majority staff are unjustified."

All complainants are free to appeal ocr decisions that they find unsatisfactory, she noted.

In cases where voluntary compliance cannot be obtained during negotiations with a school district or other violator, ocr has the statutory authority to begin proceedings to cut off federal funding to the offending institution or refer the cases to the Justice Department for prosecution.

Of the more than 2,000 violations cited by ocr between 1983 and 1988, the reports said, only 40 were brought before an administrative law judge and only 24 were referred to the Justice Department for prosecution in the federal courts.

The Justice Department's policies under the Reagan Administration also "contradict the bipartisan civil-rights enforcement record prior to 1981 and have contributed significantly to the lack of progress in combating racial isolation and inequality of educational opportunity," the Citizens' Commission charged.

The department's denial of civil-rights precedent consisted of "much more" than opposition to mandatory busing, the group's report said.

It cited a "refusal to seek any remedy which specifically requires desegregation, reliance on purely voluntary plans regardless of their effectiveness, refusal to seek necessary funding to support voluntary plans and compensatory programs, and refusal to seek systemwide desegregation remedies."

William Bradford Reynold Jr., assistant secretary for civil rights in the Justice Department through4most of the Reagan Administration, vehemently disagreed that the department's discrimination settlements were less effective than under previous Administrations.

"Any time you enter a consent decree they are monitored by the court, the department, the defendants, and any intervenors in the case," he said. "There are specific action items, reporting requirements, and monitoring requirements."

"The notion that there is nobody to hold these people's feet to the fire is baloney," he added.

Mr. Reynolds also dismissed the charge that his division had freely reinterpreted statutes and previous court rulings, saying that in most areas, they had not changed the law "one milli-syllable."

They had successfully argued, he said, that "busing should be a remedy of last resort, not first resort," and that the alternatives that the department had proposed "have been dynamite both in terms of educational benefits and in terms of desegregating students."

In employment cases, he said, the department also effectively advocated the view that violators "ought to try all racial alternatives that are available before considering a quota or set-aside."

The lead author of the Citizens' Commission report, Mr. Mincberg, said that "reasonable people can differ on a lot of issues, but there are a number of instances where, by any reasonable standard, the Reagan Administration did not do an effective job in civil-rights enforcement."

"One of the things that is most disturbing," he said, "is not just what happens in case x and case y, but the signal it sends out to other school districts that they have nothing to fear if they discriminate.'

"That notion is just fiction," responded Mr. Reynolds. "The fact is there are not many districts that are not under or have not been under some kind of court order regarding discrimination."

Both reports contain a comprehensive--and often overlapping--list of recommendations that their authors intend to be used as a blueprint for revitalizing federal civil-rights enforcement activities during the Bush Administration.

But civil-rights experts said that the key decisions that will be made by the Bush Administration will be the appointments of top administrators in the civil-rights agencies.

The problems in ocr will be corrected "only if they get an assistant secretary who is capable of really managing the place and who has some commitment to following the law," said Ms. McClure.

The Congessional report should "prove to be an interesting document for the confirmation hearing for whoever gets nominated for assistant sectretary," she added.

The name most often mentioned for the top civil-rights post in the Justice Department is Evan Kemp, a member of the Equal Employment Opportunity Commission who is disabled and is an advocate for disability-rights causes.

"Anybody who has actually had some experience with civil-rights concerns would hopefully have a greater sensitivity to these issues," said Mr. Mincberg.

"It distresses me when civil rights become partisan issues," he added. "In many instances it was under Republican Administrations that some of the more significant advances for civil rights occurred."

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