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Past Chief's Tenure Offers a Sober Lesson for Civil-Rights Office

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WASHINGTON--As they lay plans for the Education Department's office for civil rights, officials of the incoming Clinton Administration may find some instructive lessons in the stormy 2 1/2-year tenure of Michael L. Williams.

Mr. Williams took the helm of the nearly moribund office in the summer of 1990 with a vow to turn it into an effective enforcement agency.

Soon after being named the assistant secretary of education for civil rights, he laid out an ambitious agenda on such issues as ability grouping, racial harassment, and the treatment of pregnant students.

Both Mr. Williams and his critics agree, however, that he made only limited progress toward his goals.

Mr. Williams attributes his lack of success to fallout from his controversial effort to ban race-based college scholarships, and to the inability of other Education Department officials to agree on policy changes. Civil-rights groups, on the other hand, fault both Mr. Williams and the broader policies of the Bush Administration.

But while those factors will lessen when the new Administration takes power next week, observers point to other problems that will likely continue to bedevil the O.C.R.: budgetary restrictions, an increasing caseload, and the political cost of tackling what Mr. Williams called "the civil-rights issues of the 1990's.''

A Tall Order

By almost all accounts, Mr. Williams took over a beleaguered agency--one that has been accused of lax enforcement since the Nixon Administration.

Due to its low priority under President Reagan and Congressional antipathy to his Administration's policies, the O.C.R.'s budget actually declined during the 1980's.

At the same time, the number of complaints it received skyrocketed, particularly after the 1988 Civil Rights Restoration Act overturned a U.S. Supreme Court ruling that had limited the agency's jurisdiction.

Compliance reviews--investigations initiated without a specific complaint--dwindled from 264 in fiscal 1988 to 177 in fiscal 1989 and 32 in fiscal 1990.

Many outside observers and at least one key O.C.R. official saw the agency's decline as resulting from a conscious decision by the Reagan and Bush administrations to weaken it.

"The big change after 1980 is that political considerations were always in the forefront,'' said Frederick T. Cioffi, who retired in 1991 after 26 years at the O.C.R., most recently as the acting director of the policy and enforcement service.

"They were using the budget to handcuff O.C.R. from doing what it should be doing,'' Mr. Cioffi added.

"O.C.R.. has been comatose for some time,'' said Joan First, the executive director of the National Coalition of Advocates for Students. "It simply has not been a situation where high expectations have been put out there for school districts and complaints have been aggressively investigated.''

A series of scathing reports issued between 1987 and 1990 by the Citizens Commission on Civil Rights, the Democratic staff of the House Education and Labor Committee, and the General Accounting Office charged the O.C.R. with lax enforcement.

Critics complained that the agency issued few policy directives for its investigators; that complainants were urged to drop complaints; that virtually all cases were settled before the O.C.R. issued a finding of discrimination, and then settlements were poorly monitored; and that certain issues were perceived as being off limits for investigation.

A New Strategy

When he arrived, Mr. Williams promised to address the agency's management problems. He also issued a "national enforcement strategy'' that called for focusing on the very issues that had allegedly been barred: ability grouping, the treatment of children whose native language is not English, disproportionate disciplinary action against minority students, school policies toward pregnant teenagers, and racial harassment. (See Education Week, Sept. 5, 1990.)

Since then, Mr. Williams has more than doubled the number of compliance reviews being conducted and focused them on his priority issues, according to information provided to Sen. Paul Simon, D-Ill., who held several oversight hearings on the O.C.R.

Moreover, the Bush Administration requested large increases in the O.C.R. budget, bringing it to $56.4 million this year.

In addition, Mr. Williams issued policy documents in most of his priority areas, such as an update of policy related to limited-English-proficient students and a letter about the rights of pregnant students that was sent to chief state school officers.

"It does appear that he has made an effort,'' said an aide to Mr. Simon.

Scholarship Firestorm

Still, Mr. Williams's actions in other areas were overshadowed, and to a great extent undermined, by the firestorm over race-based scholarships.

In December 1990, Mr. Williams sent a letter to Fiesta Bowl officials warning them that their intention of offering scholarships to black players participating in the college-football game might be illegal. Scholarships available only to members of one racial or ethnic group violate Title VI of the Civil Rights Act of 1964, which bars racial bias in federally funded programs, Mr. Williams wrote.

In writing the letter, Mr. Williams said recently, he thought he was following what was already the O.C.R.'s policy. But his stance was seen by the higher-education and civil-rights communities as a radical change in policy and a serious threat to educational opportunity, and Mr. Williams soon found himself the center of a raging controversy.

"In headquarters, the policy had been consistent,'' he said, while conceding that the position had not been applied consistently in the small number of actual cases the agency had dealt with.

"I was legally right and politically naive,'' Mr. Williams said.

When Secretary of Education Lamar Alexander took office in February 1991, he moved quickly to defuse the controversy by ordering an internal review. The department published proposed regulations that essentially backed Mr. Williams's view, then asked for public comment.

'Handcuffing' Policy

Senator Simon requested that final rules not be issued until the ç.á.ï. finishes a study of race-specific scholarships, however, and the rules remain in limbo.

For Mr. Williams, though, the damage had been done.

The dispute limited "our accessibility to the advocacy community, their receptivity to what we wanted to do,'' he said. "It impacted my relationship with my peers within the department, and with [the media]. The oversight we got from the Hill forced us to direct resources to respond to Congressional requests.''

Perhaps most importantly, the incident made department officials reluctant to approve other initiatives put forward by Mr. Williams.

"The Fiesta Bowl race-scholarship issue probably put the handcuffs on Michael for the next year and a half,'' Mr. Cioffi said. "He couldn't develop an ounce of policy without going through 13 channels.''

For example, Mr. Williams said it was one factor in his failure to issue an ability-grouping policy, on which he "couldn't get consensus within the Education Department.''

"There are two questions, the first being 'Do we have to?' and the second being 'Even if we have to, what do we say?,''' Mr. Williams said.

"Post-Fiesta Bowl, the 'Do we have to?' burden was higher,'' he said.

Mr. Williams would not identify the officials who blocked the policy, except to say that Mr. Alexander had not opposed it personally.

"It never got that far,'' Mr. Williams said. "You have to have a consensus before you get there, or you're not going to win.''

Mr. Cioffi said the primary obstacle was Jeffrey C. Martin, the department's general counsel and a Tennessee acquaintance of Mr. Alexander's. Officials in the office of special education and rehabilitative services also did not like the draft policy, Mr. Cioffi said.

Etta S. Fielek, a spokeswoman for Mr. Alexander, said it was inaccurate to portray Mr. Martin as the primary obstacle. The difficulty was in agreeing on the language of a policy statement, she said, adding that the policy is still officially under review.

The decision on ability grouping had high stakes, Mr. Williams noted, because "virtually every school in America groups their students in some way.''

"It means we would be finding violations everywhere,'' he said.

Although department officials feared a widespread impact, several civil-rights advocates said the draft policy did not go far enough.

Even those civil-rights advocates who see Mr. Williams as an improvement over his recent predecessors also say he has not done enough. They note that the agency still settles most cases prior to issuing letters of finding, and they complain that these agreements still are not monitored closely enough.

'Weak Assurances' Seen

"They do a lot of negotiating with school districts to avoid finding them out of compliance, which would be O.K. if the outcome were worthwhile,'' said Diane Lipton, a staff lawyer at the Disability Rights Education and Defense Fund. "But the outcome is usually that they accept some weak assurances from a school district that they will do something.''

The most important difference between Mr. Williams and his critics is that civil-rights groups want the agency to adopt a much more aggressive posture, taking action against schools and colleges rather than negotiating settlements. They note that the O.C.R. has moved only once since 1980 to cut off funding to a school district, and has referred only 25 cases to the Justice Department for prosecution, all of them desegregation cases.

The agency was forced by court order to act in 24 of those cases, which were long-pending disputes. The other, involving DeKalb County, Ga., was the subject of a U.S. Supreme Court ruling last year.

"Clearly O.C.R. cannot get into every school in the country, but with no example of them blasting someone, there's no leverage,'' said Ellen Vargyas, the senior counsel to the National Women's Law Center. "Schools need to see that there's a down side to discrimination.''

'Courage of His Convictions'

But other analysts defended Mr. Williams's approach.

"He has the courage of his convictions more than anyone else in the Bush Administration,'' said Allyson M. Tucker, the manager of the center for educational policy at the Heritage Foundation. "I wish the Administration had listened to him more.''

Ms. Tucker suggested that Mr. Williams's critics were unhappy with his unwillingness to pursue cases "based solely on numbers of students in a class,'' rather than on "real issues of educational opportunity.'' She also disagreed with the assertion that the O.C.R. needs to be more aggressive.

"You can go after a school district and spend a lot of time and money, or you can negotiate a settlement quickly and get something done for the students,'' she said. "There is no awareness problem. There is no school district in the country that isn't thinking about these issues.''

Richard Samp, the chief counsel to the Washington Legal Foundation, which is suing the Education Department in an effort to force adoption of the minority-scholarship policy, also praised Mr. Williams.

"I think that by making forceful statements about the need for color-blind law, he has added new legitimacy to that position,'' Mr. Samp said.

Budget, Staffing Crunch

Mr. Williams and his critics, meanwhile, agree to a surprising extent on what should be done to improve the O.C.R.'s effectiveness. The crux of the problem, they say, is that the agency's budget and staff are insufficient to investigate all the individual complaints that come in while also initiating a significant number of compliance reviews.

"Either O.C.R. is going to have to have a dramatically larger budget, or it's going to have to find a way to reduce its caseload,'' said Mr. Williams. He suggested that his successors "explore redefining what a complaint is.''

For example, Mr. Williams said, the right to file third-party complaints could be narrowed so that "one person can't go up the Eastern Seaboard and file 200 to 300 complaints.''

Some investigations could be delegated to state agencies, Mr. Williams suggested, and complainants in special-education and other disability-related cases could be required to "exhaust their remedies elsewhere'' before turning to the O.C.R.

Indeed, the O.C.R.'s role in special-education probes may be one of the most difficult issues facing the agency under the new Administration.

Disability complaints have grown to nearly two-thirds of the agency's caseload. Some observers have argued that the law should be rewritten to eliminate duplication between the O.C.R.'s enforcement of the Rehabilitation Act, which bars bias against the disabled, and the Individuals with Disabilities Education Act, which guarantees disabled children a public education and provides a separate administrative-appeal process for parents.

Cynthia Brown, who headed the O.C.R. in the Carter Administration, said the growing prevalence of special-education complaints has produced "an agency that's tilted to middle-class kids with parents'' who have the wherewithal to file complaints.

"With this incredible focus on individual complaints, O.C.R. has ignored whole classes of youngsters who continue to be the victims of discrimination,'' Ms. Brown said.

But these ideas are sure to be controversial in the special-education community.

"Sometimes these cases have broad impact, and one parent having the resources to file complaints can help many kids,'' Ms. Lipton said.

Observers also agreed with Mr. Williams that O.C.R. investigators need more training, and that the agency would be more effective if it were viewed by top Education Department officials as an integral part of the department's mission.

Some civil-rights-group officials expect the Clinton Administration to make significant changes.

"This is an Administration that has given every indication of being committed to civil rights, and I will be very surprised if we don't see a sea change,'' Ms. Vargyas said. "We will also see a corresponding change in the education community.''

Others think major shifts may prove difficult to achieve.

"From a political standpoint, the issues O.C.R. should be addressing rub a raw edge for both political parties,'' Mr. Cioffi said. "It wasn't any easier for Carter to go after [race- and sex-discrimination] issues than it was for Reagan.''

Mr. Williams said he will "watch with interest.'' He noted that the first "time bomb'' is already ticking, in that pending complaints related to the minority-scholarship policy will force a decision.

"The pressure will be tremendous,'' Mr. Williams said. "I can't wait to see what they do.''

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