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Gerald Reynolds might have been controversial under any circumstances. After all, the 38-year-old black lawyer has been a strong critic of racial preferences and the liberal enforcement of affirmative action. That Reynolds was named by President George W. Bush to head the Office of Civil Rights at the Department of Education only guaranteed a drawn-out battle, which culminated two weeks ago in a heated Senate confirmation hearing. The office is one of the most important of the various federal agencies that oversee and enforce affirmative action. Each year, it receives around 5,000 discrimination complaints and investigates the nation’s colleges, universities, and elementary, middle and high schools for evidence of discrimination on the basis of race, sex, ethnicity or disability. It also sets guidelines on civil rights for schools that influence teachers and education boards around the country. At his Feb. 26 hearing, Reynolds said numerous times that he would enforce the law as it is written. “If confirmed, I will uphold the Constitution and vigorously enforce the nation’s civil rights laws,” said Reynolds, who previously served as the head of the conservative Washington, D.C., Center for New Black Leadership. “I think we should use all the tools in the toolbox,” Reynolds said several times in answer to senators’ questions about whether he would use specific options and tests for assessing discrimination. But Reynolds’ assurances have not mollified his opponents. If anything, his hearing left many even more convinced he should not be confirmed. Both at the Center for New Black Leadership and at the Center for Equal Opportunity in Sterling, Va., Reynolds worked on education issues. But critics say he lacks extensive experience in the field. “I have been around Congress for a long time, and I don’t think I have ever seen someone as unqualified as Gerald Reynolds was,” says William Taylor, vice chair of the Leadership Conference on Civil Rights. “The thing that came through at the hearing was that he does not possess the expertise and he does not possess the knowledge for the position.” Says Jocelyn Samuels, vice president of educational opportunities at the National Women’s Law Center, one of numerous groups that oppose the nomination: “Our concern is that Mr. Reynolds’ statements suggest a willingness to revisit and potentially change a lot of long-standing policy that has been in effect for a considerable period of time.” The tension over Reynolds’ nomination comes at a time when affirmative action and anti-discrimination policies are undergoing intense scrutiny. The Supreme Court’s decision last year in Alexander v. Sandoval severely curtailed the ability of citizens to bring certain types of discrimination suits on their own behalf. A potentially far-reaching case over affirmative action in school admissions programs is before the 6th U.S. Circuit Court of Appeals and may reach the Supreme Court. “In the post- Sandoval world the enforcement policy at OCR becomes even more critical than before,” says Christopher Edley Jr., an adviser on civil rights to President Bill Clinton and co-chair of the Civil Rights Project, a think tank at Harvard University. “For all but intentional discrimination, OCR is the court of first and last resort.” CONTROVERSIAL OFFICE The Office of Civil Rights at the Department of Education is accustomed to controversy. Twenty years ago, the office was under court supervision because of a Nixon-era case alleging that the administration’s effort to desegregate schools was inadequate. Under President Ronald Reagan, now Supreme Court Justice Clarence Thomas briefly served as head of the office. What conservatives want now is to reverse some of the more liberal influence of Norma Cantu, who headed the office during the Clinton administration. While Cantu is criticized for her policy efforts, it is unquestioned that she improved the office’s efficiency. According to a 1999 General Accounting Office study assessing part of her eight-year tenure, the average time to resolve a complaint was reduced from 152 days to 98 days, while the year-end backlog of unprocessed complaints dropped by 35 percent. These improvements occurred while the annual number of complaints received by the OCR increased slightly (from 5,093 to 5,296) and its staffing declined 20 percent-from 854 to 681 full-time equivalent staff. Those who worked for Cantu praise her efforts at convincing educational institutions to voluntarily implement programs or policies to combat discrimination. “OCR had a very strict investigative posture,” says Scott Palmer, one of Cantu’s former deputies, who is now at the Washington, D.C., office of Nixon Peabody. “She shifted that to a collaborative enforcement model — what it stresses is reaching a collaborative agreement with the stakeholders. The Clinton administration didn’t just take the adversarial model and put teeth in it, although they did do some of that.” Cantu also had a significant policy impact. In 1994, the department reversed a Bush OCR policy interpretation that severely limited minority scholarships at universities. The office also published a number of pamphlets and guidelines for schools, laying out the OCR’s interpretation of the law on issues such as sexual harassment. One of the office’s last efforts before Cantu left was to issue guidelines on how schools can administer tests for graduation or for advancement from grade to grade without being discriminatory. One of the bigger controversies during her tenure was over the case of Hopwood v. Texas, which eliminated the University of Texas Law School’s affirmative action program. After that ruling by the 5th U.S. Circuit Court of Appeals, Cantu continued to say that Texas schools could continue narrowly tailored affirmative action programs. The issue blew up, Texas politicians complained, and then-Acting Solicitor General Walter Dellinger wrote a letter to the Education Department saying Hopwood was the law in Texas and in the other states of the 5th Circuit. The Office of Civil Rights then revised its view, saying that schools in the 5th Circuit could not use race as a factor in admissions. To conservatives, Cantu was an overbearing activist who forced schools into bilingual education and who relied too much on numbers to determine whether a school had a discrimination problem. “I think Cantu sympathized with the notion that is prominent in feminist groups that you measure equality of women in terms of statistical equality,” says Christine Stolba, a senior fellow with the Independent Women’s Forum. In the civil rights community, Cantu was seen as an improvement from the Reagan and Bush years, but not without flaws. “On the downside, many people, myself included, have raised questions about whether the emphasis on conciliation has weakened OCR’s ability to teach by example,” says Edley. “She was muted, temperate, and cautious, some would say to a fault.” Those who worked with her say Cantu struck the right balance. “We didn’t come in as blazing liberals,” says Raymond Pierce, another former Cantu deputy who now works in the Cleveland office of Baker & Hostetler. “Bill Clinton was a conservative Democrat. I am a conservative Democrat. We were always catching it from the right and the left.” REYNOLDS’ ROAD As for Gerald Reynolds, his first challenge will be getting confirmed. Staff members for Sen. Edward Kennedy, D-Mass., who chairs the committee overseeing his nomination, say that the senator is “disinclined to vote for him.” Sen. James Jeffords, I-Vt., will be a key vote on Reynolds’ confirmation. Jeffords “is still keeping an open mind right now,” says spokeswoman Diane Derby. The vote has not been set yet. Should he be confirmed, there is uncertainty about what direction the office would take. On the one hand, the OCR must investigate every complaint that is filed with it. As long as students and parents continue to complain, the OCR will continue to examine school districts. But as Cantu’s tenure shows, the office head shapes policy and enforcement. The agency is the conduit, moderator, and sometimes judge between complainants and schools. Conservatives say that Reynolds is less likely to encourage bilingual education programs than was the Clinton administration. Another key area of oversight will be in monitoring the resources put into male and female sports programs under Title IX, a 1972 amendment to the Civil Rights Act. “What I heard from him didn’t suggest any radical departure on enforcement of Title IX,” says Stolba of the Independent Women’s Forum. “I think what this administration will take more seriously is the problem in implementing these statutes, such as the concerns of male athletes,” she says, referring to complaints that male sports programs have been scaled back to level the playing the field. At his hearing, Reynolds left open the possibility that the office would revisit and rewrite the Clinton-era guidelines on sexual harassment and testing. A significant court ruling on admissions policies could give Reynolds the opportunity to refashion civil rights policy for higher education. That is what has Reynolds’ critics worried. “A lot of the important work is done through self-initiated investigations, where they look at statistical differences,” says Taylor of the Leadership Conference. “Even if they investigate every complaint, that doesn’t mean they are necessarily going to have good enforcement.”

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