In the Line of Fire
|For Cantu, being stuck in the middle is part of the job.|
Cohen, from the Southern Poverty Law Center, says the OCR quickly resolved his group's complaint against the state of Georgia for failing to identify black students who may be learning-disabled. The rapid response was possible in part because his center amassed convincing evidence before filing the complaint, Cohen says.
"It's dramatically different, and it's a healthy effort," Perry A. Zirkel, a professor of education at Lehigh University in Bethlehem, Pa., says of the office's investigatory approach. "But if you look at the actual decisions that are made after investigations, you see OCR is slow to change."
For example, even with Cantu's policies, the number of complaints the OCR investigates has not dropped off dramatically, especially in the area of disability law.
Other critics question whether the work-it-out approach is appropriate. With the prospect of a prolonged investigation, the OCR can scare local officials into agreeing to do things not required under law.
"They kind of make it up as they go along," says Terence J. Pell, a lawyer for the Washington-based Center for Individual Rights, a conservative legal organization. Pell is an affirmative action opponent and was a deputy assistant education secretary for civil rights in the Reagan administration. "They count on the fact that they never have to defend [their positions] in court. ... That's always been troubling about OCR, but [Cantu has] furthered it."
That criticism is not necessarily fair, Zirkel says. "I don't think the parties have anything to lose," he says. "What we have to gain is a more expedited process."
Then there is affirmative action. The subject near and dear to Cantu's heart has been at the core of some of her most visible occupational challenges of late. Opponents of affirmative action are watching closely as the OCR reviews the University of California's admissions policies in the wake of Proposition 209, a statewide ballot initiative that prohibits most racial and gender preferences in state and local government programs, including K-12 education. MALDEF, Cantu's former employer, filed a complaint with the OCR alleging that admissions criteria such as standardized-test scores pose unfair barriers to minority applicants. The investigation is ongoing.
They also will watch Cantu as she reviews the Texas higher education system for admissions bias. The investigation put her in the center of a firestorm once before, a fact she conveniently fails to mention in her speech to college officials in Washington.
In that speech, Cantu digresses into a long legal history of affirmative action. She reviews the passage of the Civil Rights Act of 1964. She reminds the audience of the 1978 U.S. Supreme Court decision in Regents of the University of California v. Bakke that allows colleges and universities to use affirmative action with the goal of diversifying their student body.
The most current item she mentions is an April letter in which a high-ranking Justice Department official clearly states the Clinton administration's support for affirmative action, both to rectify past discrimination and to promote diversity on campuses.
But when she describes that letter, she leaves out one important detail: It never would have been written had she not sent a letter of her own that critics say demonstrates her willingness to ignore federal law to defend her ideology.
One month before the Justice Department's April 10 statement, Cantu sent a letter to Texas officials taking a position on one of the most fiercely debated recent court cases on affirmative action. In it, she acknowledged that the 1996 federal appeals court decision in Hopwood v. Texas rejected affirmative action as a way to promote diversity. But she said the decision applied only to the University of Texas Law School--the subject of the case--and not to any other college in the state or other states bound by the precedent set by the U.S. Court of Appeals for the 5th Circuit.
The Hopwood case, she wrote, "should not be used to invalidate the affirmative action admission program" at the University of Texas College of Education or any other state college or university.
In fact, she added, the rest of the state's higher education institutions would risk losing their federal student aid and student loan money if they "failed to take appropriate remedial measures" to get rid of past discrimination. In most cases, that would include admissions preferences for minorities.
A Texas official said Cantu's missive muddied the waters.
"There were different people, even different attorneys, who had different interpretations over what Hopwood meant," says Ray Grasshoff, a spokesman for the Texas Higher Education Coordinating Board. "Her letter was part of the confusion."
The letter drew a quick reaction from Cantu's most visible critics in the press--the editors of The Wall Street Journal's editorial page and their contributors.
|Even Cantu's supporters acknowledge that her zeal sometimes leads her into trouble.|
"Not since George Wallace blocked the schoolhouse door has an elected official so openly and willfully encouraged state officials to defy a federal court," Pell, the lawyer representing the victorious students in Hopwood, wrote April 2.
Eight days later, the Justice Department sent its own letter, this one to Judith Winston, who was the Education Department's general counsel at the time.
Walter Dellinger, the acting solicitor general, reminded Winston, that the Clinton administration had admitted that the Hopwood decision "will effectively eliminate all affirmative action admissions programs in higher education" in Texas, Mississippi, and Louisiana--the states that are in the 5th Circuit. What's more, he wrote, the decision "remains for now binding precedent" in the three states.
The next day, Cantu wrote Texas officials again, this time, she says, to clarify what she meant to say in her first letter. Her opponents say she sent the letter to save face.
The state would be required to try "narrowly tailored affirmative action to eliminate the vestiges of its discrimination" if the OCR decided that "race-neutral means" would be ineffective, she wrote.
The Hopwood case did not address affirmative action required to overcome previous bias, she said in an interview six months later, so it is fair to require the state to deliver affirmative action under federal laws that require it.
The fine distinctions between the two types of affirmative action are now understood by both her supporters and her critics, she says.
"It was a very complicated set of legal topics that people were trying to grasp very quickly," she says. "No, I don't feel overruled" by the Justice Department.
Even Cantu's supporters acknowledge that April's flurry of letters shows her zeal sometimes leads her into trouble. If she had consulted the Justice Department on her first letter to Texas officials, she might have avoided the uproar that followed.
While the controversy sparked a new round of criticisms, it has not created any pressure from within the Clinton administration to force her out, high-level officials who asked not to be identified say.
And, outwardly at least, she remains unflappable.
For Cantu, being stuck in the middle is part of the job. When told by an interviewer that he had talked with "some of her critics," she interjects: "Both of them?" She punctuates the remark with laughter.
"I don't have many critics," she adds.