The enforcer: an interview with Raymond C. Pierce – civil rights chief at US Dept of Education – Interview

In a span of nearly four years, Raymond C. Pierce, Deputy Assistant
Secretary for the Office for Civil Rights at the U.S. Department of
Education, has supervised some 600 civil rights compliance reviews of
school districts across the nation. His portfolio in higher education
has included managing policy development on issues ranging from gender
fairness in intercollegiate athletics to race-targeted scholarships to
higher education desegregation.

Currently, attorneys in the Office For Civil Rights are negotiating
with Ohio officials to bring the state into civil rights compliance
over its support of the ailing, historically-Black Central State
University in Cleveland.

The Office for Civil Rights is also pursuing a high-profile inquiry
of the higher education system in Texas as a result of the state’s
interpretation of the Hop wood decision in the Fifth Circuit Court,
which has banned the use of race as a factor in admissions at Texas
public colleges and universities.

Pierce, 38, a graduate of Case Western University School of Law,
spoke recently to Black Issues In Higher Education’s senior writer
Ronald Roach.

Can you describe your duties and responsibilities as Deputy
Assistant Secretary the Office of Civil Rights in the U.S. Department
of Education? Enforcement. My job is to enforce civil rights. I have
twelve offices around this country that enforce civil rights, and my,
job is to direct and operate them.

What are primary enforcement mechanisms at your disposal?

We’ll go to an administrative law judge or refer [the case] to the
Department of Justice. But most times, we always get a resolution if we
don’t send it to the Department of Justice…Secretary Riley has really
pushed hard to resolve these cases; to work with recipients of federal
funds, school districts, counties, states to see if we can’t find a way
to resolve these matters in a way that’s productive for the students
who are involved here. And, I’m proud to say that with our leadership
here. we’ve been able to accomplish that.

What do you consider to be the chief accomplishments of the Office for Civil Rights during your tenure?

The publication of the January 1994 notice in the Federal Register
where the U.S. Department of Education reaffirmed our position on the
Supreme Court’s decision in Ayers v. Fordice to say that states have an
affirmative duty to remove all vestiges of the past practices of
segregation that have present day effects. And we will review All
states who are currently not in compliance with Title VI in terms of
higher education desegregation in light of the Ayers case. (See Black
Issues, May 15, for an extensive review of Ayers v. Fordice.) We will
view them in terms of their compliance and noncompliance in light of
the Supreme Court’s decision and we will strictly scrutinize any state
efforts to merge or close any historically Black college [or]
university or to place any undue burdens on faculty or students who
have been traditionally serviced by such institutions. That is a major
[accomplishment].

Have you cut federal funding in recent years to anyone for violating civil rights law?

No, none that I can think of. We’ve come pretty close on a couple of
occasions, but at the final hour the school district will come to the
table and come up with a resolution. Or, if they don’t, we’ll send it
to the Department of Justice or we go before an administrative law
judge. … Normally, the school district or the institution will enter
into some type of agreement to resolve this.

At what stage is the Education Department’s inquiry into Texas’s
interpretation of Hopwood? [In Hopwood, the Fifth Circuit Court ruled
that the University of Texas at Austin law school could not use race as
a factor in admissions. The state attorney general has said that ruling
applies to all public colleges and universities.]

Understand this first, the Texas higher education desegregation case
was in existence long before the Hopwood decision. Texas was one of the
original Adams cases that was found in violation of Title VI [which
prohibits federal funds from going to any institution that
discriminates on the basis of race]. Texas was a state that entered
into a remedial plan in the early 1980s or late 1970s, under which the
state was required to enhance the historically Black colleges and
universities, and provide for affirmative action, scholarships and
admissions practices to create greater access for Black students at the
traditionally white institutions. That plan expired sometime ago. There
are six states that had plans with the Department of Education Office
for Civil Rights.

If you recall the history, there were originally nineteen states
under the Adams order. Of those nineteen states, eighteen submitted
plans to the Department of Education to bring themselves in compliance
with Title VI of the 1964 Civil Rights Act. Only Ohio did not submit a
plan. Four of those states submitted plans that were rejected:
Mississippi, Alabama, Louisiana and Tennessee. Those states went on to
court. The United States Department of Justice was active in four of
those cases. One of them [Mississippi] went all the way to the Supreme
Court.

… [Fourteen] states had plans with the Department of Education, or
at the time HEW’s Office for Civil Rights, that would bring themselves
in compliance with Title VI. Texas was one of those states. In the late
1980s, the majority of those states were released [after being] found
in substantial compliance. Six states remained under those plans, and
remain under our jurisdiction: Texas, Kentucky, Virginia, Maryland,
Pennsylvania and Florida.

Now, my understanding is that the review [of Texas] now is under
different policy because of the Supreme Court decision of Ayers v.
Fordice. Before, the standard was whether the state did what they
agreed to do in the remedial plan …

The standard under Ayers v. Fordice is that the states’ actions have
actually removed the vestiges to the greatest extent practicable that
still have a segregative effect. So that is the analysis under which we
conduct our review in Texas, Florida and any of the remaining six
states. That’s the analysis that we conduct ourselves even under the
Hopwood decision.

What were the specific determining factors that your office
considered in finding that certain states had met compliance in the
Adams case? Why, specifically, have the other states not yet gotten off
the hook in regards to Adams?

The specific determining factors were the guidelines that were
published in the 1978 revised criteria for the desegregation of state
systems of higher education. And, as I mentioned sometime ago … that
policy, that guidance, was specifically in two areas. Enhancement of
historically Black colleges and universities, and affirmative action –
both geared toward desegregating the state system of higher education
and having a more integrated system of higher education with access for
all students, particularly minority students in that instance. The
enhancement of the historically Black colleges and universities through
the states that entered into plans took a number of forms, from the
locating of particular programs at these institutions, to cooperative
programs [between] historically Black colleges and universities and
traditionally white institutions …

The affirmative action leg of the policy was in two parts. That was
affirmative action in admissions, where race was included as a factor
in admissions policy. And affirmative action in scholarships, to
attract and include a more diverse student population at traditionally
white institutions …

Ohio is a separate matter. Ohio is the only state of the original
Adams states that never submitted a plan. … In 1994, the Department
of Education and the Department of Justice entered into an agreement to
bring the [Ohio] case back to the Office for Civil Rights to
reinvestigate it and to seek a profitable resolution in the case and
that is where we are right now.

What is OCR’s stance on how Hopwood is being interpreted by the state of Texas?

We continue to believe the Hopwood panel was wrong in its rejection
of Justice Powell’s opinion in the Bakke case [in which the Supreme
Court said that race could be used as one of many factors in
admissions] and its narrow interpretation of the permissible remedial
predicates for affirmative action. But, we have to honor that court
decision within the Fifth Circuit which includes Texas, Louisiana and
Mississippi. Whatever measures we take in the state of Texas will be
consistent with that decision. However, outside of the Fifth Circuit,
we continue to believe that affirmative action and diversity .is a
compelling interest. It’s still good [policy].

Do you think Ohio state officials, with regard to Central State
University, are risking violation of civil rights law with its latest
action in the state legislature?

At this time, no, because nothing has been signed by the Governor.
We are currently in negotiation with the state of Ohio, particularly
the Governor’s office. And, I feel very confident that we will be able
to produce a remedial plan that will not only bring the state into
compliance with Title VI of the 1964 Civil Rights Act, but a plan that
will be good for all students in the state of Ohio who seek higher
education, either at Central State or anywhere in Ohio for that matter.

For a state that is in violation of Title VI of the 1964 Civil
Rights Act, pertaining to a historically Black college, for it to
suggest closing down that historically Black college without ever
having produced a remedial plan, of course, would cause us some
concern. Of course, it would have severe civil rights implications.
But, the point I would like to make here is that … we’ve been
encouraged by Governor Voinovich’s’ office as of late.

Do you think the states that were found to be in compliance were let off too soon?

My response is that they were released pursuant to the policy that
was in effect at that time. The 1978 revised criteria for the
desegregation of state systems of,higher education set specific
guidelines as to what states would have to do.

Those guidelines set the parameters within which compliance plans
were constructed. That’s how that worked out. It was not a policy where
states had an affirmative duty to remove all vestiges of the past
practice of segregation. In effect, the Ayers v. Fordice decision, the
1992 Supreme Court decision, incorporated elementary and secondary
desegregation law, Brown v. Board of Education law, into higher
education desegregation law. As you know, in elementary and secondary
education law you are required to remove all vestiges of the past
practice of segregation. … That has now been applied to higher
education.

Do you think there has been adequate examination of K-12 practices
in school districts with regard to minority student college
preparation? If not, why hasn’t the federal government done more in the
past?

I can’t talk so much about what the federal government has or has
not done in the past. But what I would like to say is this: President
Clinton and Secretary Riley have made education A-1 priority for this
administration.

The key focal point in making education [an] A-1 priority is the
raising of standards in this country for all schools because we know
all children can learn. And, you can’t just raise standards, you have
to give schools, faculty, and administrators the tools they need to do
the job of educating our children. You have to provide for
opportunities for parental involvement where none may have existed in
the past. Raising standards means you also have to have adequate
resources with which children can learn so the child can meet those
standards.

Sadly, we still have too many incidents in this nation of school
districts that operate in a way where minority students are being
inappropriately placed in special education or are wrongfully excluded
from gifted and talented programs and honors classes. If we are looking
for the day, as the President says, when two years of college is as
normative as a high school diploma, then we must make sure those types
of barriers are removed.

So this Office for Civil for Rights has made tracking, and
inappropriate use of special education funds, and inappropriate
exclusion from gifted and talented programs a priority issue. Georgia
and Mississippi are some of the notable cases – statewide cases – that
we’ve handled. There is information that leads us to believe there are
problems in terms of the exclusion of African Americans from honors
classes and gifted and talented programs in the state of Georgia. And
we’re working pretty hard to bring that to closure.

This all goes to the Ayers v. Fordice case because the central issue
in the case, as [lead attorney for the plaintiffs in Ayers v. Fordice]
Alvin Chambliss constantly points out to me, is about access – access
to higher education. Well, a child won’t have access to higher
education if he or she is placed on a low-track that will not prepare
that child for college.

Given that sexual and racial harassment cases seem to have had high
visibility in recent years at higher education institutions, has the
Education Department, through the Office for Civil Rights, sanctioned
or taken punitive action against any higher education entity for
violation of civil rights law? If so, why, how and when?

We do make sure that the Civil Rights Division at the Department of
Justice and the Office for Civil Rights at the Department of Education
are in sync in terms of enforcement of federal laws. When you’re
talking specifically about civil rights, we have issued a sexual
harassment policy in March of 1997, and in 1994, we issued a racial
harassment policy. So we do enforce the laws in respect to the law
under Title VI with respect to racial or sexual harassment through
complaints that we receive from around the country. Oftentimes, we do
receive complaints from higher education institutions with respect to
incidents of racial and sexual harassment, and we deal with them
accordingly.

What other concerns do you have?

I do want to say this on the gifted and talented programs issue in
Georgia and the special education issue in Mississippi. We went through
five counties in the state of Mississippi, and found significant
statistical disparities in the percentage of African American students
being placed in special education. After we went through those five
counties and school districts, they all agreed to enter into a plan to
remedy this with the Office for Civil Rights. We then approached the
state of Mississippi as a whole and were able to get a statewide
agreement with the state of Mississippi that will address this issue.

It is extremely important for parents and students and people who
are concerned with the educational plight of African Americans in the
state of Mississippi to be very mindful of this agreement because we
will need their eyes and ears. The federal government needs help on
these things. We need partners. There are many people who have an
interest in making sure all the children in the state of Mississippi
have access to quality education.

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