2 Years Later

The U.S. Education Department’s Office for Civil Rights is pushing colleges to drop race-conscious policies and programs that are both effective and lawful, according to a report issued Thursday by the NAACP Legal Defense and Educational Fund.

"Closing the Gap," released on the two-year anniversary of the U.S. Supreme Court’s rulings in two cases regarding affirmative action at the University of Michigan, says that the Office for Civil Rights is disregarding the court’s decision allowing race-conscious policies. “Two years later, rather than assist educational institutions,OCR is instead standing in the way,” read a letter from Theodore M. Shaw, president of the fund, to Margaret Spellings, secretary of education. The report blasts the OCR for taking complaints from anti-affirmative action groups and launching investigations that intimidate institutions with race-conscious policies.

OCR contends that it is merely doing its job by investigating complaints, as it is required to do, about potentially illegal programs. “We investigate all complaints within our jurisdiction, regardless of who files the complaint,” said Susan Aspey, press secretary at the Department of Education.

The Supreme Court decisions said that colleges could consider race in creating a diverse campus, but that race had to be taken into account as one quality of an individual, and not used to set blanket standards for a particular group.

OCR is required to investigate every complaint it receives about potentially illegal programs, and, according to the report, “the threat to file an OCR complaint can have a chilling effect on an educational institution, even if there is no merit to the complaint.” In many cases, the report says, the threat of an OCR complaint from an anti-affirmative action group has led institutions to modify or drop perfectly legal programs to avoid an investigation. “Predictably, this hostile climate has severely dampened university efforts to attract a diverse group of students and has depressed minority enrollment.”

The report says that anti-affirmative action groups have “an inside track” at OCR. The report notes that the OCR “has recently hired staff,” Hans Brader and Curt A. Levey, who worked for the Center for Individual Rights, an anti-affirmative action group that helped the Michigan plaintiffs who challenged affirmative action. Of OCR and the complaints coming in, Shaw said, "They invited these complaints, they work closely with the groups who are drumming up these complaints. And the Office for Civil Rights has been staffed with people opposed to affirmative action.”

Anti-affirmative action groups “are trying to achieve through threats and intimidation what they could not achieve through the courts,” the report says.

Critics of affirmative action have another view. “I think the court decision made clear that the use of race and ethnicity was strictly limited,” said Roger Clegg, general counsel at the anti-affirmative action Center for Equal Opportunity. The center has threatened institutions with lawsuits and lodged many complaints with OCR in persuading institutions to adopt race neutral policies. “Financial aid and programs that have race as an absolute requirement are flatly inconsistent with the Supreme Court’s decision,” he added. “There are disadvantaged students of all races and ethnicities, so it doesn’t make sense for a university to say, ‘We’re not going to consider anyone for this scholarship unless they have a particular skin color.’ ”

But many programs that promote diversity will lose effectiveness if they are opened to all students, as the OCR would have them be, says the report. “There have been programs to get African Americans or Latinos interested in medical school,” Shaw said. “If you open these up to all students, they will be overwhelmed by white students, simply because there are many more white students.”

He added that, even if programs were based on socioeconomic status, poor whites, who greatly outnumber poor blacks, would dominate the programs. “OCR has focused its energies on encouraging … race neutral alternatives even though such polices are insufficient by themselves to close the gaps,” the report said. It noted a 2004 OCR report, “Achieving Diversity," that focused on race neutral programs, and criticized OCR for focusing on them to the exclusion of race-conscious policies.

Aspey, the Education Department press secretary, said it just a matter of the law. "We are bound by the laws as interpreted by the federal courts."