E.D. Probes Find Rights Officials Falsified Papers

By William Snider — April 08, 1987 10 min read

WASHINGTON--Officials in the Education Department’s regional offices have backdated documents relating to civil-rights complaints to make it appear as if they had complied with deadlines set forth in a federal court order, department investigators have found.

Two internal investigations conducted last year also revealed that 6 of the 10 regional offices “incorrectly’’ suspended the processing of some civil-rights cases for reasons other than those allowed by the court order, according to department documents.

As a result of the investigations, which were completed in the fall and winter of 1986, new case-management procedures have been instituted, and some employees have been disciplined or admonished, department officials said last week.

“We discovered a problem, moved on it, and fixed it as quickly as we could,’' said Loye Miller, chief spokesman for Secretary of Education William J. Bennett.

Nonetheless, Representative Ted Weiss, Democrat of New York and chairman of the House subcommittee on government operations, announced last week that his committee will hold hearings on the O.C.R.'s actions on April 23.

And the plaintiffs in the longstanding and controversial civil-rights suit that led to the court order in question may ask the federal district judge hearing the case to hold department officials in contempt of court, according to a lawyer involved in the case.

Strict Timetables

The department presented evidence of the violations in three legal documents submitted since September to U.S. District Judge John H. Pratt and to the plaintiffs in the 17-year-old lawsuit, Adams v. Bennett.

The Adams case has been described by many legal experts as the most important suit pending against the federal government for failure to enforce civil-rights laws.

Judge Pratt issued orders in 1977, 1983, and 1985 that require the O.C.R. to follow strict timetables when processing civil-rights complaints by individuals, and those stemming from the office’s own periodic reviews of schools’ and colleges’ compliance with civil-rights laws.

He ordered the timetables following complaints by the plaintiffs that the office was taking years to reach decisions in hundreds of cases.

The internal department investigation found that in 6 of the 10 regional civil-rights offices, lawyers and other staff members had dated documents on the last possible date allowed under the Adams orders. Other records, however, indicated that work on the documents had not actually been completed until intervals past the deadline that ranged from one day to two weeks.

The department’s inspector general found that in the Boston office, “employees had been instructed to backdate documents’’ by their superiors, said Alicia Coro, who has been the acting assistant secretary for civil rights since January 1986.

Details of the involvement of top-level officials in the Boston regional office were first revealed last week by The Washington Post, which obtained the information from a leaked copy of the inspector general’s report.

A separate departmental investigation found no evidence that the violations in other offices resulted from management decisions at the regional level or in Washington, Ms. Coro said.

Some of the violations were the result of “uninformed, careless, or thoughtless regional management,’' and others resulted from legitimate errors, investigators concluded in their report to Ms. Coro.

More Than Misreporting?

“The core of this case has always been that the agency has delayed compliance steps for unconscionably long periods of time,’' said Elliot C. Lichtman, a lawyer who has been working with the NAACP Legal Defense Fund in the Adams suit.

The backdating and other violations, he said, “are more than just misreporting.’'

“It’s covering up violations of the time limits that go to the very heart
of this issue,’' said Mr. Lichtman.

The Adams case began in 1970 as a class action filed on behalf of black college students against the former Department of Health, Education, and Welfare. The students charge that the department has inadequately enforced the federal law barring discrimination on the basis of race.

Since that time, groups charging violations of the federal laws barring discrimination on the basis of sex and handicap have also been allowed to enter the case as plaintiffs.

Judge’s Orders

In 1977, the year the case went to trial, Judge Pratt issued an order requiring the O.C.R. to determine whether a civil-rights violation has occurred within 90 days of acknowledging receipt of a complaint.

When violations are found, department officals have an additional 90 days under the order to try to negotiate a settlement with officials at the school or college where the violation occurred. If those negotiations fail, the department has another 30 days to initiate enforcement actions, which could lead to the termination of federal funding to the institution.

Under another order, issued by Judge Pratt in 1983, the O.C.R. is required twice annually to submit to the court detailed reports on their enforcement activities during the previous six months.

Both orders were amended and reissued in 1985, although the timeframes and several other provisions remained the same.

Admissions of Backdating

In a document filed with the court on Sept. 26, 1986, the department admitted it had uncovered 23 instances in the Boston office in which documents had been backdated to make it appear as if investigations had complied with the court orders.

Ms. Coro said she ordered the initial investigation after visiting the Boston office in July 1986. At that time, she said, she discovered that complaints were being processed improperly.

Secretary Bennett subsequently asked the department’s inspector general to investigate the Boston O.C.R. office and to seize all relevant documents.

Seven employees in the Boston office told the inspector general’s investigators that Louis F. Simonini, the office’s director of elementary and secondary education, had instructed them to backdate documents, according to the report in the Washington Post.

The Post also reported that Mr. Simonini told investigators that Richard V. McCann, director of the Boston office, had said on one occasion that a document should be backdated by several days.

Salary increases for regional directors are based on their performance reviews, which include a determination of whether their offices have been meeting the deadlines set forth in the Adams order.

Neither Mr. Simonini, who resigned his post last month, nor Mr. McCann, who retired last summer, returned calls made to their homes last week.

Department officials last week declined to confirm the findings of the inspector general. They also declined to discuss any disciplinary actions taken against employees implicated in the case.

They confirmed, however, that disciplinary actions are still being considered against some employees who were working in the Boston office at the time the violations occurred.

In addition, they said that evidence uncovered by the inspector general had been referred to the Justice Department, which declined to prosecute the case.

“Without minimizing the seriousness of the issue, enhanced as it is by an outstanding [and apparently well-understood] court order, the fact that the dating discrepancies appear small in number ... leads me to believe that our resources are best put to work elsewhere,’' Assistant U.S. Attorney Richard G. Stearns wrote in December, according to the Post article.

Discrepancies in Cases

A subsequent investigation ordered by Ms. Coro of the other nine regional offices revealed discrepancies in 14 of 32 cases examined in the Atlanta office; 18 of 26 cases in the Dallas office; 17 of 36 cases in the Kansas City office; and 7 of 20 cases in both the San Francisco and Seattle offices.

The department investigated only those cases in which documents had been dated on the last possible date under the Adams order.

Regional directors who served in each of those offices at the time the violations occurred have since been “admonished,’' said Gary Curran, special assistant to Ms. Coro. No further disciplinary action is being contemplated against those officials because there is no evidence indicating that the violations occurred as a result of deliberate actions on their part, he said.

“It is very difficult after the fact to find out who improperly dated something,’' Mr. Curran said.

No Conspiracy Seen

Mr. Lichtman and others involved in the Adams case said they had not yet seen any evidence suggesting that the violations occurred as a result of a conspiracy among regional O.C.R. directors or officials in Washington.

However, he alleged that the backdating clearly occurred because department employees wanted to make it appear as if they had completed work on the cases in time to meet the court-imposed deadlines. “What other purpose would they have?’' he asked.

Department officials under both the Carter and Reagan administrations have repeatedly charged that the timetables set by the court do not allow enough time to investigate discrimination complaints fully and properly.

Officials said last week that the U.S. Supreme Court’s 1984 ruling in the Grove City College v. Bell case has made meeting the deadlines even more difficult. The ruling, they said, requires them to take the additional step of determining whether the alleged discrimination occurred in a specific “program or activity’’ that receives federal funding.

Mr. Bennett reported for the first time in a statement last week that the O.C.R. “has closed or narrowed’’ 834 complaints and compliance reviews--out of more than 7,500 received in the past three fiscal years--due to the Grove City decision.

Processing of Complaints

The department investigations also revealed numerous instances in which the processing of civil-rights complaints were improperly delayed.

Under the 1985 Adams order, department officials are permitted to suspend, or “toll,’' up to 20 percent of their civil-rights investigations for a variety of narrowly defined circumstances, including the unavailability of witnesses.

The report to Ms. Coro revealed that regional offices in Boston, Philadelphia, Atlanta, Dallas, San Francisco, and Seattle “routinely initiated tolls without an adequate basis in the tolling provisions of the Adams order or O.C.R. written guidance interpreting those provisions.’'

The investigators concluded that many of the improper delays resulted from misinterpretations of the court order. “An absence of monitoring the initiation of tolls on the part of some senior managers was also apparent,’' it added.

The investigators also found that there was an “acute’’ problem with tolls being extended “well beyond the time they should have’’ in the Atlanta, Dallas, and San Francisco regional offices.

In a document submitted to Judge Pratt, department officials calculated that, “even if each discrepancy and toll resulted in a missed Adams timeframe,’' their overall national compliance rate would drop from 92 percent to only 87 percent in the 1985-86 reporting year.

They also noted that, while 258 cases had been on toll on Feb. 27, 1986, that number had declined to 74 on the same date this year.

Ms. Coro said the decline resulted from the new procedures she had put in place for monitoring the use of the tolling provision.

‘Troubled Agency’

But Marcia Greenberger, executive director of the National Women’s Law Center, one of the groups involved in the case, said, “Certainly [O.C.R.] is a troubled enforcement agency.’'

Judge Pratt has yet to rule on a motion filed by the department in July 1985 that asks that the case be dismissed because the plaintiffs no longer have standing to participate in the suit.

“There has been an enormous drive by the Education Department to get out from under the court order, through legal means or possibly improper means,’' Ms. Greenberger said. “The fact is that each time the court has reviewed the record, it has come to the conclusion that its order is essential to keep at least a structure of civil-rights enforcement in place.’'

Mr. Lichtman of the NAACP Legal Defense Fund said the plaintiffs would assess the department’s corrective actions before considering whether to ask Judge Pratt to find department officials in contempt of court.

“We have not been furnished with a copy of the inspector general’s report, and we would have to review all of the facts in the case before making that decision,’' he said.

A version of this article appeared in the April 08, 1987 edition of Education Week as E.D. Probes Find Rights Officials Falsified Papers