In the Line of Fire
|The OCR under Cantu has adopted a middle-of-the-road approach geared toward mediating resolutions between schools, colleges, and complainants.|
Cantu's success in Texas led civil rights activists to hope--and conservatives to fear--that putting her in charge of an Education Department staff of almost 700 with the power to withhold federal funding would result in aggressive enforcement.
So far, it hasn't happened. Instead, Cantu and her office have adopted a middle-of-the-road approach geared toward mediating resolutions between schools, colleges, and complainants. The move disappointed many on the left, while also failing to silence Cantu's critics from the right.
The criticism "has more to do with the nature of the job" than with Cantu's performance or the administration's policies, said Deval L. Patrick, who headed the civil rights division at the Justice Department for almost three years before leaving last January.
"It's one of the most difficult jobs because everybody hates you," says Gwendolyn H. Gregory, the deputy general counsel for the National School Boards Association in Alexandria, Va., and an OCR official in the 1970s. "You're not doing enough, or you're doing too much."
That has been the history of the office. In the 1970s, when federal education programs were under the former Department of Health, Education, and Welfare, Congress annually pressured OCR to back down on its investigations into busing.
More recently, Michael L. Williams, an assistant secretary for civil rights in the Bush administration, touched off a firestorm when he informed college officials that the practice of exclusively reserving scholarship money for minority applicants was illegal. Williams, who now practices school law in Dallas, declined comment for this story, saying he knows how difficult Cantu's position is and that she doesn't need any of her predecessors criticizing her publicly.
In fiscal 1996 alone, the OCR received 4,828 complaints. Sixty percent of those resulted in an investigation; the rest were dismissed after a brief review. Many were rejected because they already were the subject of a lawsuit or a review by a state agency. Others lacked enough evidence to justify a detailed inquiry.
In addition, Cantu's office launched 146 compliance reviews--investigations initiated by the OCR without a specific complaint from a parent, student, or teacher.
In fiscal 1996, more than half of the complaints the OCR received concerned disability-bias issues, which may range from a school's failure to be accessible for wheelchairs to a parent's dissatisfaction with the teacher of a learning-disabled child.
Almost 900 complaints that year focused on discrimination based on race or national origin in colleges and universities, which Title VI of the Civil Rights Act of 1964 prohibits in any school that accepts federal aid or student loans. More than 300 complaints called for investigation under Title IX of the Education Amendments of 1972, which forbids sex discrimination in schools and colleges receiving federal funding. Most of the OCR'S Title IX reviews address equity in athletics, but sometimes they deal with alleged sexual harassment by teachers and students.
Cantu's division also has reviewed state and national student tests to determine whether they discriminate against minorities. The OCR also has examined at least one charter school's treatment of a disabled student.
Such a scope gives Cantu and her investigators the right to pry into just about anything a school does, from how an architect designs a new front entrance to how much a school board pays coaches--not to mention most of what happens in classrooms and on playgrounds.
While the OCR cannot sue schools, the office can halt a school's federal funding until it complies with civil rights laws to the OCR's satisfaction. The office also can refer cases to the Justice Department for legal action.
While investigations rarely lead to such action, just the threat of a federal funding freeze creates tension between federal and school officials.
For most K-12 school districts, federal dollars make up at least 5 percent of their annual budgets. For colleges and universities, federal money pays for or guarantees most of the financial aid and loans available to their students.
Few of the cases that Cantu's office investigates each year are noticed by anyone other than the participants. But, occasionally, attention-getting cases will end up being debated in Congress and the press.
This fall, the OCR generated media attention when it declared that Denver's bilingual education program violated civil rights laws because its classes weren't as challenging as those for general education students. The federal office called the district's plan to fix the problem "insufficient" and threatened to withhold some or all of the city's $30 million a year in federal aid if the plan isn't revised to the federal regulators' satisfaction.
In 1994, in another high-profile case, House Republicans complained that the OCR overstepped its mandate by looking for racial bias in Ohio's mandatory high school exit exam. Critics portrayed Cantu and her team as aggressively pursuing the case. When the OCR failed to find any racial bias and simply won a promise from the state that it would offer remedial courses to students who failed the tests, the critics declared victory and proclaimed that federal officials had backed down in the face of criticism.
|Few of the cases OCR investigates are noticed by anyone but the participants. But, occasionally, attention-getting cases will end up being debated in Congress and the press.|
But, according to those involved in the case, such statements are not accurate. They counter that the OCR acted only after receiving a complaint from the Cleveland chapter of the National Association for the Advancement of Colored People. And when the investigators arrived, they did not come with an agenda favoring the NAACP, according to Ohio's top education official at the time.
"Whatever the problem was in Cleveland, it cut across racial and ethnic lines," said Ted Sanders, Ohio's superintendent of public instruction in 1994, who is now the president of Southern Illinois University at Carbondale. "Statistically, I had a compelling case that whatever was happening in Cleveland was not race-based, ethnicity-based, or gender-based."
"I was concerned about us receiving a fair day in court with them," said Sanders, who had been a deputy secretary of education in the Bush administration. "We actually received that from them."
Cantu's office also chose not to hew to the position of a group that had been one of her allies at MALDEF in a separate testing case.
In that situation, FairTest and the American Civil Liberties Union protested that the National Merit Scholarship program discriminated against girls. The scholarships are awarded based on scores on the Preliminary SAT, a practice test for the SAT college-entrance exam, and girls traditionally score worse on the tests than boys do.
In the settlement, the College Board, which oversees the test, and the Educational Testing Service, which administers it, promised to accelerate plans to include a writing component in the test--something they said would result in better test scores for girls.
"They bent over backwards to find terms on which the defendants could settle," FairTest's Schaeffer says of the ocr officials. "It was a half-way, face-saving measure [for the defendants]. It substantially narrowed the gender gap, but it's still not a level playing field."
But few cases enter the public eye the way the Ohio or PSAT investigations do. Many of them are quietly settled when the OCR negotiates a deal between the school district and the complainants.
"There's a lot that the office for civil rights does that doesn't get noticed because conciliation doesn't get noticed," says Patrick, the former assistant attorney general for civil rights, who is now practicing civil rights law at the Boston firm of Day, Berry & Howard.
Cantu says that the emphasis on mediation has been a hallmark of her tenure. Under her, the OCR has revised its procedures so investigators attempt to resolve differences from the start. In previous administrations, investigators kept the parties separate while they collected facts, a process that often takes six months or more.
"Mediating between the parent and the school results in a very fast resolution, and it saves the taxpayer the cost of the investigation and saves the school district the cost and time of the investigation," Cantu says.