A more subtle activism at the Office of Civil Rights

By Terence J. Pell

Academic Questions, November 30, 1999

Dramatic public displays once punctuated the campaign for civil rights in this country. Martin Luther King ushered in the Civil Rights Act of 1964 with a massive march on Washington culminating in his “I Have a Dream” speech on the steps of the Lincoln Memorial. Events such as this helped crystalize public opinion and make civil rights progress possible.

Times change. Shades of gray blur moral distinctions that were clear only a generation ago. Where once a handful of heroic leaders defined a civil rights “movement,” now a sprawling array of federal enforcement agencies promulgate civil rights “policies.” Where once the claims of racial equality and justice were clarion calls to action, now they are sources of bureaucratic maneuvering.

As it turns out, however, a low profile approach to civil rights hasn’t stopped officials bent on pursuing an activist civil rights agenda. Often, by making civil rights nonadversarial and noncontroversial, bureaucrats have been able to obtain results that would have been inconceivable in an earlier era. Indeed, at a time when the country as a whole appears to be backing away from affirmative action and other race-conscious remedies to racial inequalities, federal civil rights agencies are advancing an agenda in some ways more radical than ever before.

No one may be more responsible for this subtle new activism than Norma Cantu, the former head of the Mexican American Legal Defense Fund (MALDEF), who was appointed by Clinton to head the Department of Education’s Office for Civil Rights. OCR is the agency charged with enforcing the three primary civil rights statutes that govern the use of federal funds at educational institutions. These statutes prohibit discrimination on the basis of race, color, national origin, sex, and handicap.

Relatively young and with a background in civil rights activism, the 42 year-old Cantu has used OCR’s invisibility to mask a variety of controversial policies affecting higher education, including desegregation of state systems of higher education in the South, the creation of new guidelines for monitoring racial and sexual harassment, and the expansion of federal efforts to equalize expenditures on men’s and women’s athletics.

Cantu’s tenure illustrates the multitude of ways in which OCR can be used to exert a great deal of sometimes extralegal pressure on local educational institutions to implement an aggressive and ambitious civil rights agenda. The agency’s record under Cantu shows that civil rights enforcement need not be dramatic or adversarial to be activist and intrusive.

Consider the agency’s handling of higher education desegregation, long one of OCR’s more difficult and contentious undertakings. Starting in the mid 1960s, OCR began a lengthy process of ordering southern states to eliminate the effects of their previously dual systems of higher education. Although these states had since ceased operating dual systems, OCR wanted them to remove “vestiges” of prior discrimination such as the racial disparities in attendance at the previously all-black and all-white schools.

OCR ordered a long, expensive effort to make black colleges more attractive to white students and white colleges more attractive to black students. Multi-year plans addressed every aspect of system administration, including physical plants, courses, faculty hiring, program placement, and student admission and retention.

Although many of the states complied with much of what OCR demanded, there was little enthusiasm for more expensive plan elements. The state governors, who had originally signed the agreements with OCR, had little power over the legislative branches that were expected to provide the actual funds. Legislative action, if it came at all, often took many years.

To get around this problem, Cantu created what she dubbed the “partnership/stakeholder” approach. Instead of using high profile court action to force reluctant state legislatures to provide funds for OCR’s sweeping changes, Cantu “empowered” local “stakeholders” — students, faculty members, public leaders, and local advocacy groups — to lobby legislatures for money. To facilitate this process, Cantu empaneled federal and state officials to hold public hearings at which the “stakeholders” could plead their cases.

In a particularly memorable hearing in Florida, two farmers (one black and one white) showed up to testify that their grape farms had been significantly helped by researchers at Florida A & M University-a predominantly black college. This testimony was supposed to drum up support for more funds and programs at historically black colleges coincidentally (Cantu hoped) making them more attractive to white students.

The result, however, confirmed what skeptics had long asserted about OCR’s higher education desegregation program. In the absence of a clear legal standard as to what constitutes a “vestige” of past discrimination, much less a legally sufficient “remedy,” “desegregation” becomes just one more among many competing policy objectives for cash-pressed state systems of higher education. The absence of a clear legal standard means that Cantu’s efforts to promote desegregation rely not on the force of law but simply on force.

The coercive nature of Cantu’s approach nowhere has been more manifest than in her response to recent Supreme Court and Courts of Appeals decisions that have drawn more narrowly the constitutional limits of affirmative action. As a result of the Court of Appeals decision last year in Hopwood v. Texas, colleges and universities in Texas, Louisiana, and Mississippi are no longer free to employ an applicant’s race as a factor in school admissions.

Despite the clear language of the ruling (as well as an admonition that university administrators could be held personally liable for failing to adhere to its terms) Cantu urged state officials to ignore the court’s decision. Not only did she launch a compliance review against the State of Texas, but she recently wrote state officials to proclaim that Hopwood covered only the University of Texas law school itself. Even opponents of Hopwood recognize that its scope is wide. Indeed, by Cantu’s reasoning, Brown v. Board would have applied only to a single elementary school in Topeka, Kansas.

Cantu, of course, has no use for legal principles or indeed any standard broader than what she needs to get a desired outcome in a particular case. In her letter to Texas officials, she not only asserted that other higher education institutions were free to use race in school admissions without regard to the Hopwood decision, but she hinted that they had an obligation to do so.

The prospect of a federal official’s encouraging state officials to ignore the ruling of a U.S. Court of Appeals had state officials more than a little nervous, especially since Cantu threatened to cut off funds to any state agency that was not sufficiently aggressive in resisting the Hopwood rationale. Facing withering public criticism, a warning from Senator Phil Gramm that he would restrict OCR funding, and a strongly worded rebuke from Walter Dellinger, Acting Solicitor General, Cantu finally was forced to retract her threat and agreed to follow the Hopwood ruling in Texas.

Providing athletic opportunities for female athletes is another area where vague or nonexistent legal standards have given way to “empowering” local interest groups. In this case, OCR’s standards have been used to tip the tables heavily in favor of female athletic programs. Practically speaking, OCR’s guidance in this area makes it impossible for a school to eliminate most women’s athletic programs.

In place of agency regulations, which have to surmount an arduous review and comment procedure, OCR’s Title IX “regulations” are really “policy guidance.” Written with all deliberate vagueness, they permit OCR great enforcement latitude in determining what constitutes a violation or a remedy. Under Cantu’s leadership, the guidelines have been supplemented with a “Clarification.” This additional bit of agency advice, announced with much fanfare, removes some obvious confusions in the guidelines’ language, but leaves the basic, obfuscatory structure intact.

University officials fearing Title IX lawsuits must maintain strict gender proportionality (even though at least one court has rejected the proportionality test). At the least, any conflict between men’s and women’s athletics on campus must be resolved in favor of the women’s programs. Of course, after laying down a framework favorable to women’s athletics, OCR says it is available to “work together” with institutions of higher education to find “creative solutions” to the problem of fitting athletic programs into increasingly tight budget constraints.

Just as Cantu has blurred the line between legal enforcement and interest group politics, so too has she blurred the line between the objects of OCR authority-schools and other educational institutions that accept federal education funds-and the individual students and faculty members who are supposed to be served by those institutions (and who do not generally accept federal funds). Thus, although OCR is charged with remedying discrimination by educational institutions, Cantu has broadened her mandate to encompass discrimination by individual teachers and students.

In two sets of “guidelines” released during her tenure-one governing racial harassment and the other sexual harassment-Cantu has made clear that recipients of federal education funds are not only responsible for their own discriminatory conduct, but for the discriminatory conduct of individual students and teachers as well. Effectively, she deputized institutions to police their own members, even while calling attention to a new, diffuse category of discrimination, that caused by a hostile environment. Although OCR has long required institutions receiving federal funds to maintain internal procedures for handling complaints of sex discrimination, the stakes have never been so high.

The guidelines themselves are vague, emphasizing that what might or might not create a hostile environment varies according to particular circumstances. In the place of a clear standard of harassment, Cantu served up a process: local school districts were obliged to set up harassment procedures to respond to individual complaints. Through this means, Cantu reasoned, specific definitions of harassment would emerge on a case by case basis.

The result, however, has been perverse. In the absence of a clear idea of harassment, Cantu’s “Alice in Wonderland” procedures dictated that everything be viewed as potential harassment. Otherwise, the avenue would be open for an OCR investigation and a possible cutoff of federal funds. Local bureaucrats had no choice but to err on the side of overinclusion.

And overinclude they did. Colleges and universities are already highly sensitized to issues of harassment-their harassment procedures often go above and beyond what is required by OCR. The absurdity of extending Cantu s “process first, crime second” approach to elementary schools, however, soon made itself apparent. Not five months after the release of her proposed guidelines, the country was treated to a celebrated series of stories regarding efforts by elementary school officials to root out sexual harassers among fiveand six-year-olds. Nervous school officials felt compelled by OCR procedures to treat every playground antic as a possible instance of sexual harassment requiring separate investigation and prompt remedial action.

In later, “final” guidelines, Cantu did little to resolve the difficulty. Although the guidelines continue to assert that a single instance of harassment does not necessarily constitute a “hostile environment,” they also make clear that what constitutes harassment must be determined on a case-by-case basis. Even single episodes must be investigated to ensure that they do not contribute to larger “environmental” discrimination. For this reason, officials have little choice but to treat single episodes with the utmost seriousness.

The problem with OCR’s approach to harassment goes beyond the comical, however. OCR has “targeted” racial harassment for special, agency-initiated investigations based on information culled by regional staff from local newspapers and other sources. In some cases, OCR has fashioned an extremely broad “remedy” that does more than address particular instances of harassment.

In one such investigation, OCR not only persuaded the school district to create a “plan” with strict rules for punishing harassment, but also to establish a curriculum that addressed “intergroup relations, intercultural communication, stereotyping, and peer mediation.” In addition, the program was to include teacher training in tolerance and “equity” workshops. Thus was OCR able to facilitate a trickle-down of higher education’s diversity industry into the lower schools, without public scrutiny, comment, or choice.

It’s not clear why local school districts agree to these types of remedies. As OCR itself admits, it has no authority to interfere with, or even make suggestions for, the content of local school curricula. That’s because federal law prohibits the U.S. Education Department (including OCR) from interfering in matters of local curricula.

Part of the explanation is that an OCR investigation not only intimidates local administrators fearful of bad publicity, but also “empowers” (to use one of Cantu’s favorite expressions) those within a school district who favor OCR’s leftist approach to such issues as sexual and racial harassment. By initiating an investigation, the agency shifts the balance of power in a local district. At schools and universities alike, those attempting to expand the boundaries of harassment and discrimination have an eager friend and ally in OCR.

Further to tip the scales in her favor, Cantu has changed the procedures by which OCR handles complaints to make them more intimidating to local officials. Under previous administrations, OCR headquarters staff maintained close control over the investigation and resolution of all but the most routine complaints. This ensured that civil rights complaints were resolved according to uniform, nationwide standards.

Under Cantu, most complaints are resolved at the regional level, with little or no headquarters involvement. Cantu claims that decentralization makes it possible to settle cases more quickly. Instead of having to call headquarters for instruction, OCR personnel can “resolve” cases informally-“more amicably and less intrusively,” in her words. However, it also enables OCR to get results through informal conciliation that would never be possible-or legally supportable-were OCR to have to decide these questions on the basis of a single nationwide standard.

In one instance, for example, OCR decided that a California school district had improperly educated a handicapped student at home rather than as part of a regular class. Under such circumstances, OCR typically would order the school district henceforth to include the student in regular classes. In addition to this remedy, however, the regional office ordered the school district to set up an individual trust fund to pay not only for the student’s future evaluations, but for his enrollment in a postsecondary program as well.

The use of a trust fund was novel in two respects. First, it was the sort of extraordinary, equitable relief usually only available through a court, and even then, only rarely. Second, and more fundamentally, this device enabled OCR to skirt an important limitation on its jurisdiction. OCR’s mission is to ensure that Federal education funds are spent in a nondiscriminatory fashion. Once a school district has remedied a specific instance of discrimination, OCR has no further authority to intervene in district affairs unless and until new evidence of discrimination arises.

The use of a trust fund extends OCR’s remedial authority well beyond what is necessary to remedy a specific act of discrimination. Once the trust fund has been established, any relief can be ordered, so long as it falls within the broad remedial language of the trust document and does not exceed its assets. It does not matter whether such relief continues to be necessary to remedy the discrimination that occurred in the first place. It assumes, implausibly and in advance of the fact, that the entire cost of a student’s future education is an additional expense made necessary by the district’s initial act of discrimination.

Cantu’s decentralized complaint resolution procedures sometimes mean novel remedies. In other cases, they mean no remedy at all. There is anecdotal evidence that under Cantu’s leadership, a greater percentage of complaints are simply disposed of without serious investigation. And regional offices have greater latitude to delay politically controversial or difficult investigations. A General Accounting Office study ordered by California Republican Representative Dana Rohrabacher confirmed suspicions that regional offices have been slower to resolve discrimination complaints of Asian-Americans than of other groups.

What differentiates Norma Cantu from her predecessors, then, is both her understanding of how the agency can effect desired change by empowering allies in local institutions to do its bidding, and her willingness to use this knowledge as the fulcrum of her enforcement strategy. Cantu understands and exploits the fact that in many cases civil rights enforcement is most intrusive when it is kept so low-profile as to be out of sight.

While Cantu’s activism serves her agency’s short-term interests, it remains to be seen whether it will build long-term public support for civil rights enforcement. Cantu’s nonadversarial approach supposes that, in effect, the problems with government enforced efforts to redress racial inequality can be fixed with just a little more time and good will. But officials’ increasing reliance on bureaucratic anonymity and subterfuge suggests they know that the public is tired of the civil rights bureaucracy. Further efforts at disguising what these agencies are doing may only hasten the day that the public does away with them altogether.