The president’s appointees mix caution with conservatism in handling colleges’ disputes over race and gender
Five months into her job as the Education Department’s assistant secretary for civil rights, Stephanie J. Monroe seems disinclined to express strong opinions or issue bold policy pronouncements. Her plans for her agency’s Office for Civil Rights are driven more by bureaucratic needs than ideology.
As she sat down for a recent interview surrounded by press officers, she said she did not plan to have her staff undertake many new investigations to make sure education institutions are complying with civil-rights laws, and her top priority “will be getting rid of the backlog we have.”
Like many civil-rights officials appointed by President Bush, she appears determined to choose her battles carefully and keep a low profile.
When President Bush first took office in January 2001, conservatives hoped — and liberals feared — that his administration would reverse or abandon many Clinton-era civil-rights policies dealing with women and members of minority groups on college campuses. To the dismay of some conservatives in the administration’s own ranks, such a sweeping overhaul of federal civil-rights policy has not occurred.
Over the past five years, the Bush administration has had a propensity to avoid civil-rights controversies in higher education — or, in many cases when avoidance seemed impossible, to try to chart a middle-of-the-road course.
There have been exceptions.
For example, the Office for Civil Rights angered many women’s-rights groups last year by easing the requirements that colleges must meet to demonstrate that they are providing women with equal opportunities in athletics.
Likewise, many advocates for black, Hispanic, and American Indian students have objected to the administration’s decision to let the civil-rights offices of the Education Department and Justice Department challenge the legality of college programs reserved for minority students and women. “In general, we have strong concerns and disagreements with this administration,” says Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund.
But the administration has pulled back in several instances when it was considering taking actions opposed by civil-rights groups. Most notably, it rejected a federal commission’s recommendations that it overhaul its policies dealing with gender equity on campus in order to protect men’s sports (see related story, Page A22). And it refused to take a strong stand against race-conscious college admissions when the U.S. Supreme Court took up two landmark cases involving the admissions policies of the University of Michigan at Ann Arbor (see related story, Page A21).
Indeed, the chief complaint that many colleges’ lawyers express about the administration is that it has given their institutions too little guidance on civil-rights matters, leaving them unclear on how it interprets the law.
It may be telling that, although President Bush has appointed prominent conservatives to several key civil-rights posts, some of the harshest criticisms of his civil-rights policies have come from the leaders of some conservative or libertarian advocacy groups. They argue that his administration should be taking stronger stands on certain issues, by, for example, doing more to oppose race-conscious college admissions or to protect conservative speech on campuses.
Among them is Terence J. Pell, president of the Center for Individual Rights. He says the Bush administration “has not wanted to be out front on civil-rights matters” and, as a result, “has fallen quite short of any sort of fundamental rethinking of the government role in protecting individuals from racial discrimination.”
“It wanted these issues to disappear and go away, and that is largely what happened,” Mr. Pell says. “I think it has just been one big lost opportunity.”
Leadership Vacuum?
The Education Department’s Office for Civil Rights did not have a Senate-confirmed leader in place for nearly five years, until Ms. Monroe took over in December. Several lawyers who represent colleges before that office — and who, for that reason, generally asked that their names be withheld — said they had noticed a leadership vacuum in their dealings with its staff, especially in matters where the law is unclear.
The assistant secretary for civil rights “is a critically important position, to give a zone of comfort to staff to know, Here are my parameters. Here is where I go. Here is what I do,” one of the lawyers for colleges said. With that position being held by interim appointees, “you have not seen any significant policy activity on any front,” he said.
Others said that, under the Clinton administration, the office had met much more often with higher-education leaders to provide them with guidance and technical help. On the plus side for colleges, David Williams II, general counsel for Vanderbilt University, said he believed the current administration was less predisposed than the last one to side with the people who had filed civil-rights complaints against higher-education institutions. “You don’t sit up and worry as much about the government initiating action against you,” he said.
Roger B. Clegg, president and general counsel of the Center for Equal Opportunity, a group that opposes race-conscious college admissions, said “the leadership being exercised by OCR has frequently been very tentative.” But, he said, it was unclear to him whether the explanation lay in the lack of Senate-confirmed leadership over the office or “it is because the issues involved are very controversial, and the Bush administration is frequently reluctant to court controversy in this area.”
Other priorities, such as pursuing the Iraq war, have taken up much of the administration’s attention and put pressures on its budget. Annual federal spending on the Office for Civil Rights grew substantially in the first three years President Bush was in office — from $75.8-million in the 2001 fiscal year, the last budget adopted under President Bill Clinton, to $88.3-million in the 2004 fiscal year — but since then it has failed to keep pace with inflation. It now stands at $90.6-million.
Up and Out
President Bush’s first nominee for assistant secretary for civil rights, Gerald A. Reynolds, was a utility-company lawyer at the time of his nomination in June 2001. Because he was an outspoken social conservative who had previously worked at two organizations that staunchly oppose many affirmative-action policies — the Center for Equal Opportunity, where he was a legal analyst, and the Center for New Black Leadership, where he was president — his nomination quickly came under fire from civil-rights groups such as the NAACP.
The Democrats who then led the Senate education committee put off confirmation hearings on Mr. Reynolds for eight months, until March 2002. When Congress recessed midway through the hearings, President Bush gave him a “recess appointment,” which permitted him to bypass Senate confirmation but meant that he could only serve until that Congressional session ended, in late 2003. He led the civil-rights office for 19 months before resigning in October 2003 to take a high-level post at the Justice Department.
Kenneth L. Marcus, who had been Mr. Reynolds’s deputy in charge of civil-rights enforcement, stepped in as assistant secretary on an acting basis. When Mr. Marcus resigned in late 2004 to become staff director of the U.S. Commission on Civil Rights, he was replaced on an acting basis by James F. Manning, who had been chief of staff for the deputy secretary of the Education Department.
Ms. Monroe was a staff member on the Senate Budget Committee when President Bush nominated her to be assistant secretary in June 2005. She had worked on Capitol Hill for nearly 25 years, serving as chief counsel for the Senate Committee on Health, Education, Labor, and Pensions from 2001 until last year and, for 12 years before that, as chief counsel and staff director for the Senate Committee on Labor and Human Resources’ Subcommittee on Children and Families. She was overwhelmingly confirmed by the Senate last December.
When interviewed this month, Ms. Monroe said that people in her office were very excited to finally get a Senate-confirmed leader, but that she did not see herself as holding markedly different views than her predecessors, and did not have big changes planned. “I feel that OCR has been effective, has been able to carry out its responsibilities, and has done a good job,” she said.
Ms. Monroe noted that about 80 percent of the roughly 5,000 complaints fielded by her office each year arise in connection with alleged violations of Section 504 of the Rehabilitation Act of 1973 and of the Americans With Disabilities Act of 1990, both of which prohibit discrimination against people with disabilities. Lawyers for colleges say that political ideology has generally played little role in the civil-rights office’s interpretation of such laws, and that federal policy in this area has changed little from one administration to the next.
But as the Office for Civil Rights has scaled back some of its regional offices in recent years in response to budget pressures, it has fallen behind in processing such disability-related complaints, observes Caroline B. Forsberg, director of disability services and information for the State University of New York System and a spokeswoman for the Association on Higher Education and Disability. Such complaints account for much of the backlog that Ms. Monroe wants to clear.
Balance of Justice
The Education Department’s civil-rights office is hardly the president’s only avenue for shaping civil-rights policy related to education. Among other agencies that play a role here, the Justice Department’s civil-rights office is involved in the desegregation of schools and colleges, and is joined by the Equal Employment Opportunity Commission in dealing with complaints of employment discrimination by such institutions.
In addition, the president’s appointees to the federal courts, including the U.S. Supreme Court, play a central role in determining how civil-rights laws are interpreted. And the president appoints four of the eight members of the U.S. Commission on Civil Rights, a watchdog body that was established by the federal government in 1957 and, while lacking enforcement powers, helps set the agenda for the federal government by investigating and issuing reports on civil-rights concerns.
The Justice Department recently threatened to sue Southern Illinois University system for employment discrimination over three fellowship programs that had been reserved for women or members of minority groups, prompting the university system to open the programs to students of any race or gender in an agreement reached with the agency in February.
Other than that, however, the Justice Department has not ventured into new territory in its civil-rights enforcement efforts directly related to higher education.
It has received the most criticism from civil-rights groups in other areas, such as its handling of voting-rights cases, or its failure to put school districts under more pressure to continue desegregation efforts.
Civil libertarians have expressed concern about several steps undertaken by the federal government in the wake of the September 11, 2001, terrorist attacks. The Justice Department and other agencies have made it harder for foreign students and scholars to enter the United States.
And many college librarians have protested provisions of the USA Patriot Act that give federal law-enforcement officials broad powers to demand library records. Librarians and researchers also argue that the freedom of information is being infringed by the federal government’s efforts to reclassify certain documents, such as papers of the late Jack Anderson, a famed muckraking journalist, being held by George Washington University (The Chronicle, April 28).
But Martin Michaelson, who directs the higher-education practice of the Washington-based law firm Hogan & Hartson, echoes many other lawyers for colleges when he says that, by and large, “the worst fears of some in higher education have not been realized with respect to law enforcement overreaching” under the antiterrorism measure.
Supreme Complexity
Both justices that President Bush has named to the Supreme Court, Samuel A. Alito Jr. and John G. Roberts Jr., have right-of-center reputations that led liberal groups to oppose their nominations.
But Justice Roberts has considerable experience in education law — in private practice and as a Justice Department lawyer under President Ronald Reagan — which has left many lawyers for colleges expressing confidence that he will show a great deal of understanding of, and deference toward, the judgments of higher-education institutions.
Although Justice Alito has much less experience in higher-education law, his past decisions on lower courts make him difficult to pigeonhole. Although he has taken a skeptical view of policies that are intended to protect minority students from verbal harassment or seek to give the minority employees of educational institutions an edge over their colleagues, he has also championed free speech on campuses.
“I don’t think that a fair reading of their overall record suggests that either is a political ideologue with any preconceived agenda that they are trying to satisfy on the court,” says Derek P. Langhauser, general counsel for the Maine Community College System, who extensively reviewed the legal records of both Mr. Roberts and Mr. Alito as a special counsel to U.S. Sen. Olympia J. Snowe, a Maine Republican.
Mr. Langhauser predicted that both justices would be “conservative in the judicial sense of the term,” in that “they will decide only as much as they need to decide in a given case, and they will stay very close to the facts at issue.”
Advocates for gay rights suffered a setback in the Supreme Court’s decision in March to uphold the Solo mon amendment, a federal law that allows the government to withhold funds from colleges that limit military recruiting to protest the armed forces’ exclusion of people who are openly gay or lesbian.
But Justice Alito had not been on the court long enough to take part in the decision, and the court’s liberal members joined the others in its 8-0 ruling, which rejected the argument, put forward by a coalition of law schools, that colleges had a First Amendment right to keep the military recruiters off their campuses.
Split Commission
Of all the federal agencies and panels that deal with civil rights, the U.S. Commission on Civil Rights may be the one that has undergone the most profound ideological shift under President Bush.
During Mr. Bush’s first four-year term, the commission was bitterly divided along partisan lines, with Mary Frances Berry, a Democrat who had been its chairwoman since 1993, leading half of its members in issuing stinging denunciations of him, and other members coming to his defense.
In October 2004, the commission posted on its Web site a draft version of a staff report titled “Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration, 2001-2004,” which concluded that “President Bush has neither exhibited leadership on pressing civil-rights issues, nor taken actions that matched his words.”
It accused the president of selecting nominees and appointees “who do not support civil rights protections”; of failing to seek large enough increases in federal spending on civil-rights enforcement agencies to keep up with inflation; and doing too little to meet the educational needs of black, Hispanic, and American Indian students.
About the only aspect of his civil-rights record that the draft report strongly praised was his “commitment to improving the lives of individuals with disabilities,” as evidenced partly by his creation of new commission to examine special-education programs.
The following month, the commission failed, on a 4-to-4 vote, to endorse the draft report, but its leaders forwarded the document to President Bush anyway. In December 2004, he removed Ms. Berry, whose term was expiring, from the panel and appointed Mr. Reynolds, the former leader of the Office for Civil Rights, to serve as its chairman. Mr. Bush also removed Cruz Reynoso, a Democrat who had been the commission’s vice chairman. Abigail Thernstrom, an Independent commission member who is a senior fellow at the Manhattan Institute and a prominent critic of affirmative action, was elevated by President Bush to vice chairwoman, and Ashley L. Taylor Jr., a Republican who had been deputy attorney general of Virginia, was named to fill the vacant commission seat.
The reconstituted commission promptly removed Redefining Rights from its Web site. Its new leadership has defended the Bush administration against criticism of its affirmative-action policies and, more recently, focused its attention on the question of whether anti-Semitism is a problem on college campuses.
Last month the commission voted 4 to 1 (with one member absent and another leaving before the vote was taken) to recommend that the Office for Civil Rights protect college students from anti-Semitism by “vigorously enforcing” Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race or national origin.
It also recommended that Congress amend Title VI “to make clear that discrimination on the basis of Jewish heritage constitutes prohibited national-origin discrimination.”
The only commission member to vote against the panel’s recommendations was its chairman, Mr. Reynolds, who argued that anti-Semitism should be considered religious discrimination, which falls outside the office’s purview.
When interviewed this month, Ms. Monroe, the leader of that office, said, “I think that we have to be very careful about the way that we define, and loosely throw out, terms like anti-Semitism.”
She went on to say that her office will investigate those complaints of anti-Semitism that clearly relate to national-origin bias, but will forward complaints of religious bias to the Justice Department.
“The key thing,” she said, “is that under the Bush administration, they would get redress, no matter where they got that redress from.”
http://chronicle.com Section: Government & Politics Volume 52, Issue 37, Page A20
