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Keeping On Keeping On: OCR and Complaints of Racial Discrimination 50 Years After Brown


by Mica Pollock - 2005

This article, written by a former civil rights investigator in the U.S. Department of Education's Office for Civil Rights (OCR), contends that ordinary Americans advocating for equal educational opportunity for students of color might enlist OCR more actively and knowingly to help secure racial equality of opportunity 50 years after Brown. Now a scholar of racial inequality in education, the author shows that OCR's original purpose of rooting out racial discrimination in federally funded educational programs has been both hampered by hostile administrations and eclipsed by nonrace casework in the years since OCR's inception. The author argues that to successfully enlist OCR's civil rights tools today, complainants must arrive at OCR with as much concrete evidence of racial harm as possible and be ready to navigate some core disputes over defining and investigating racial discrimination in the current era.

From November 1999 through June 2001, I worked as a civil rights investigator in the U.S. Department of Education’s Office for Civil Rights (OCR)1 Trained as an anthropologist, I went to work at OCR as an investigator after my doctoral program instead of immediately entering the academy because I was interested in working directly to reduce racial inequality in U.S. schools rather than “just analyzing” it as a scholar. Ironically, the chance to work at OCR turned out to be a rare opportunity to try to reduce inequality by analyzing inequality within an agency whose very creation had committed it to an increasingly uncommon purpose: investigating and eradicating educational discrimination on the basis of race.


OCR was created in 1967 to enforce Title VI of the 1964 Civil Rights Act, which outlawed discrimination “on the ground of race, color, and national origin” in federally funded programs (including schools). In the process of working for OCR circa 2000,I came to analyze it informally as an institution and to contemplate the various ways that it was and was not fulfilling its original purpose and why. I found that while excellent work continues to be done within OCR on numerous allegations of discrimination—particularly against children considered “disabled”2—ironically, it is OCR’s work to protect students of color that seems most constricted 50 years after Brown.


In fact, one of the most notable developments at OCR since its creation is the decline in the proportion of race-based discrimination cases being investigated and the simultaneous increase in the proportion of non-race-oriented cases—especially those regarding discrimination against students based on disability. Since the 1980s, disability cases have consistently made up over half of OCR’s caseload, while race cases have constituted fewer than a fifth.3 This shift from race to disability is not just a result of chance; as I navigated various internal and external disputes over OCR’s analyses of racial discrimination in particular, I became convinced that OCR is not currently active in analyzing and eradicating racial discrimination for some key reasons.


Observers of the current civil rights moment (what many are calling the “post-civil rights era,” and what I myself call the “new civil rights era”; Pollock forthcoming) might attribute OCR’s inactivity in the race arena generally to a historic rollback of legal tools for achieving racial civil rights in the past several decades (Nowak 1995). I would argue that OCR’s current stagnation as an active protector of civil rights for children of color is also caused by three more specific phenomena.


First, OCR is far too little-known by members of the general public interested in racial equality, who too rarely bring race complaints to the office while parents and advocates with other concerns fill the office with complaints.


Second, OCR’s race work is, at times, hamstrung purposefully by presidential administrations and nervous bureaucrats resistant to active work to ensure students of color equal educational opportunity.


Third, race discrimination work within OCR is simply more conflict-ridden and murky than its disability discrimination work these days, both because of analytical developments in civil rights education law on race, gender, and disability, and because Americans seem to argue over what is “really” racial discrimination more than they argue over any other discrimination form. Thus, complainants hoping to wield Title VI via OCR today must arrive equipped with more evidence than ever of just how opportunities to succeed in school are racially unequal.


I want to discuss the first two phenomena briefly and spend the remainder of the article on the last, for once ordinary Americans learn that OCR exists as a possible avenue for remedying racial discrimination against students of color in U.S. schools and decide that using the office to investigate such racial discrimination is itself an American right that supersedes the politics of any one administration, it is essential that parents, advocates, and activists collect the sort of evidence that will spark a successful investigation into alleged racial discrimination in a school or district and see that investigation through to a successful remedy. In addition, a complainant to OCR needs to be prepared to navigate some predictable battles over determining what now can be said publicly to constitute the racially unequal treatment of the young.


Rather than give up on OCR as a defender of racially equal opportunity for the nation’s children and particularly our children of color, then, I argue that OCR is an underused lever for battling racial inequality in U.S. schools that could be reinvigorated to be more helpful in analyzing and eliminating racial discrimination. Such a change, I believe, particularly requires that ordinary parents, educators, and activists get more informed, more active, and more effective in demanding OCR’s assistance. OCR still has the ability to rescind federal funding from educational institutions found to be discriminating against students, and OCR investigators can request whatever relevant data they want from school districts and universities, which have no choice but to supply it. Further, and perhaps most important, OCR employees, who act routinely as mediators between the public and its school system, have a unique potential to assist K-12 and university administrators to analyze and eradicate racially discriminatory practices within their own institutions. But complainants need to know how to best prompt the legal assistance of the agency. Large advocacy organizations, like the National Association for the Advancement of Colored People (NAACP), Mexican American Legal Defense and Educational Fund (MALDEF), and the National Women’s Law Center, already file complaints at OCR; this article instead addresses the more ordinary, individual complainant, for any person can file an OCR complaint of “discrimination.” This article should begin to inform those ordinary Americans who struggle for racial equality within the educational system today that there may be powerful ways to use an old institution’s tools to tackle current manifestations of racial inequality and discrimination.4 First, some basic information on OCR’s original mission.


FROM A CENTRAL FOCUS ON RACIAL DISCRIMINATION AT OCR TO A MORE COMPLICATED MISSION


Through efforts beginning in 1965 and realized in 1967, OCR was founded as an office in what was then the U.S. Department of Health, Education, and Welfare (HEW) to implement the educational piece of the Civil Rights Act of 1964, the federal legislation that can be credited with actualizing Brown’s tenets: Title VI. Title VI of the Civil Rights Act outlawed discrimination on the basis of race, color, and national origin in all federally funded programs, including schools. It gave the government the right to rescind federal funding from educational institutions continuing to operate in a discriminatory manner, a tactic designed to allow for the real work of dismantling racially segregated school systems across the United States. In its early years, OCR enforced solely Title VI and worked almost exclusively on desegregating schools and districts in the South.


Much has been said about the all-too-”deliberate” pace of desegregation after Brown (Ogletree 2004; Orfield 1978). For a few short years in OCR’s early history, after the U.S. Supreme Court required in Green (1968) and Swann (1971) that school districts affirmatively dismantle their segregated school systems, OCR played a critical role in prodding Southern school districts to comply by launching investigations into segregative practices and threatening to cut off all federal funding if districts clung to segregation. OCR’s vigorous battle against segregation incurred the wrath of Congress; Nixon campaigned against HEW’s desegregation efforts in the South. Once elected, Nixon both fired and threatened to fire any OCR employees who advocated desegregation via busing (Orfield 1978). OCR’s vigorous battle against segregation was accordingly short lived: soon the NAACP was challenging OCR’s inactivity. In Adams (1973), a federal district court judge ruled that HEW already was not adequately carrying out enforcement proceedings against school districts found to be in violation of Title VI. The Adams ruling, in one sense, gave OCR the legitimacy it needed to force districts to comply and move beyond superficial efforts to desegregate schools, or else lose their federal funding (see Moran 2005). In another sense, Adams pushed OCR away from undertaking the more time-consuming “compliance reviews” of entire districts that were central to desegregation efforts. This shift toward small-scale rather than systemic efforts to fight discrimination, as Bunch and Mindle (1993) argue, itself would play a role in shifting OCR’s case load away from race cases and toward individual-child disability cases, filed in growing numbers through the 1970s, 1980s, and 1990s by the nation’s increasingly most vocal complainants.


In the early 1970s, OCR was beginning to expand its scope to consider other forms of racial discrimination in education—such as racially biased tracking, discipline, teacher assignment, and testing within schools—as Title VI violations.5 And at the same time, the federal civil rights role in public education was changing and expanding beyond a focus on issues of race alone. In the 1970s in particular, various groups of disadvantaged students and their parents, including those seeking more gender equity and those seeking bilingual and special education services, began to press for more equal educational opportunities, borrowing strategy and inspiration from African American plaintiffs in Brown and from the logic of Title VI.


As other groups were successful in courthouses and Congress in forcing the federal government to protect students in schools from discrimination based on gender, disability, and language needs, the role of OCR widened well beyond its focus on racial discrimination. OCR was now expected to enforce a series of federal civil rights laws and subsequently developed federal regulations outlawing the discriminatory treatment of students in federally funded institutions on the bases of gender (Title IX of the Education Amendments of 1972), disability (Section 504 of the Rehabilitation Act of 1973), and language minority status (covered under Title VI but fleshed out particularly after a famous OCR memorandum in 1970 and the Supreme Court case Lau v. Nichols, 1974). As Bunch and Mindle (1993) write, “Too much was expected of OCR. . . . Pressed by so many claims for relief, from so many different groups, in such varied forms, the Office became almost paralyzed” (6).


Thus, by the late 1970s, the shift away from OCR’s original focus on discrimination harming students of color had begun, and, as I explain in the following sections of this article, more recent trends and developments have blurred that focus even further. Per the Bush administration, for example, OCR’s current Web site invites readers to learn about OCR’s newest antidiscrimination work: protecting the Boy Scouts and other “patriotic” “youth groups” from discrimination.6 The multiple equity-related movements in the field of education that brought important federal legislation and court rulings in special education, language minority education, and gender equity were but the beginning of this larger historical trend of moving away from a focus on protecting students of color from discrimination.


RESTRICTIONS ON OCR’S RACE WORK: THREE CORE PHENOMENA TO CONSIDER


In this section, I describe the three phenomena that I contend have coincided with the changing scope of OCR and contributed to its current diminished role in fighting racial inequality in education. Throughout, I suggest how complainants concerned about discrimination against students of color might more successfully enlist OCR’s services.


LACK OF KNOWLEDGE ABOUT OCR AND ITS PROCESS


The first phenomenon diminishing OCR’s current effectiveness at race discrimination work is that the office is relatively unknown among many ordinary advocates of racial justice, while it is well known by advocates who work on other equity-related issues. In a book on the ironic legacy of Title VI, Halpern (1995) has argued generally that race-related civil rights activity has, since 1964, been eclipsed through the extension of Title VI’s basic civil rights logic to other communities (that is, women and the disabled). While I myself do not argue against such an extension of Title VI’s legal reach, Halpern’s basic claim—that race work has been eclipsed by other civil rights concerns—was most definitely borne out at OCR when I was there.


In particular, complaints from advocates representing disabled students now fill OCR employees’ desks. The disability advocacy community, particularly parents of learning disabled students in schools, uses OCR as an effective and regular lever for gaining access to needed services and programs. I myself sensed (at least in my region) that under Clinton, advocates for equal athletic opportunity for girls were often similarly well-served at OCR, though served far less often than the disabled (and observers, such as the National Women’s Law Center, have critiqued OCR for not being effective enough on enforcing Title IX in athletics and in many other realms, such as faculty diversity and sex segregation in vocational education. See footnote 10, and also Setty 1999). In some OCR regions, I also saw effective efforts to enforce requirements for educational services for language-minority students. Indeed, OCR’s work to secure civil rights for English language learners is among the OCR activities most lauded by some outside reviewers (U.S. Commission on Civil Rights 2004), even as this work is often constrained internally by fears of powerful outside critics who are hostile to services that are remotely “bilingual.”


But by far the most impressive push for OCR support comes from advocates for “disabled” children, particularly those labeled as having learning disabilities. In contrast to advocates for racial justice in education, advocates for special-needs children have massive, effective organizational structures that parents can plug into to obtain disability assessments for their children or to get their children services once they are determined to have learning or physical disabilities (see Fleischer and Zames 2001). Part of the effectiveness of this advocacy community is that members know how to complain to OCR, which can push districts to assist parents with both assessments and service provision. In contrast, few parents or advocates of students of color seem to know that the task of eradicating racial discrimination can still be shared in part with government lawyers and investigators at OCR—or even that people are still employed to combat racial discrimination by the government’s own mandate.


OCR complaint forms used to be exclusively paper forms, but now they are also available online. General questions about potential instances of discrimination or about filing complaints can be e-mailed or called in to OCR staff in regional offices or in the agency’s headquarters in Washington, D.C.7 While the disability community benefits from substantial advocacy networks helping parents and supporters to file OCR discrimination claims, other communities, particularly communities of color, seem far less informed about how to file such OCR claims or even that OCR handles educational civil rights claims at all. Furthermore, it seemed to me while I was working at OCR that while advocates for learning-disabled and physically disabled children regularly helped parents fill out complaint forms, the parents who had complaints related to racial discrimination tended to find out about OCR through word of mouth and call OCR themselves to request complaint forms. Some complainants who made it to OCR to file race cases admitted to me that they started with the Yellow Pages.


Similarly, most of the graduate students interested in addressing racial inequality in U.S. schools who take my classes at the Harvard Graduate School of Education have never heard of OCR. (Indeed, as a Ph.D. student studying race and education at Stanford, I too had never heard of OCR until a guest speaker from the agency captured my attention in a class in 1997.) And when students hear of this enforcement agency and its government-mandated purpose to “ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights,”8 they are often shocked to realize that a government agency expressly committed to racial antidiscrimination work actually still exists.


And yet OCR does still exist to investigate and eradicate racial discrimination against U.S. students in federally funded programs. OCR simply does not advertise itself regularly because to do so would invite a flood of complaints. In contrast to the Equal Employment Opportunity Commission (EEOC), for example, which has signs hanging throughout U.S. workplaces informing workers about what to do in case of workplace discrimination, OCR keeps astonishingly quiet about its own services, such that many players in schools and districts do not even know that they are governed by civil rights laws. Using OCR is thus a strategy de facto reserved for people in the know. Advertising OCR, in turn, typically depends upon people who know about it but who do not work there. Such advertising is one basic way to increase ordinary Americans’ access to OCR’s legal tools.


NEGATIVE ADMINISTRATIVE IMPACT


The second phenomenon diminishing OCR’s current effectiveness in remedying racial discrimination in education is that its own administration at times quietly or overtly hinders its work to protect students of color from discrimination. First, because OCR is an office within the U.S. Department of Education, its leadership changes and its politics on race shift with every administration. Thus, the president, presidential Department of Education term appointees, and even some career bureaucrats employed semipermanently at OCR to do each new administration’s bidding reshape the direction of OCR’s race work and often particularly reduce its scope for protecting children of color. As Orfield (2000) notes, The Civil Rights Act makes serious civil rights enforcement possible in American education, but it only works effectively when the executive branch is committed to full implementation and when this standard is supported by the courts. Unfortunately, since 1986 the enforcement process has been under severe political attack and during twenty of those years the White House has been occupied by some of the attackers. (128)


Ordinary Americans pursuing equal opportunities for students of color in the nation thus must stay aware of the administration’s current direction regarding OCR’s race activity, in order to publicly critique that direction when necessary. Americans should, for example, pay attention to the appointment and activity of OCR’s chief administrator, an assistant secretary for civil rights in the Department of Education who is appointed anew by each incoming administration and can have a particular impact on the agency’s analytic and policy trajectory. As an Education Week article on OCR assistant secretary appointments noted in September 2001 (after George W. Bush had become president), the assistant secretary’s politics often seem more important than his or her “civil rights” experience:


Since the creation of the Education Department in 1980, the two Democratic presidents to serve in that time have appointed lawyers with long experience in civil rights litigation or enforcement to fill the important position of assistant secretary for civil rights. The three Republican presidents, meanwhile, have tended to nominate lawyers with solid conservative political credentials, including a young Clarence Thomas, but without extensive experience in civil rights law. (Walsh 2001)


The assistant secretary nominees’ race politics often seem paramount in their selection. Clarence Thomas, with a background in corporate regulation, was Reagan’s assistant secretary of OCR for a brief 10 months before leaving to head the EEOC. Thomas instituted a “first come, first served” policy of casework at OCR that, according to Clinton’s Assistant Secretary Norma Cantu, particularly stalled large-scale race complaints behind the individual-level disability complaints beginning to flood the office (Norma Cantu, interview, March 24, 2005, Cambridge, MA). As Rabkin (1989) writes of the 1980s,


The complaint orientation forced OCR to address most of its resources to those constituencies which were most prolific with complaints, so the share of resources devoted to investigating discrimination against blacks dwindled to less than 10 percent, and the share devoted to non-English speaking minorities dwindled to barely 5 percent in the 1980s. Meanwhile, women claimed one-third of its enforcement efforts, and the handicapped more than half. (169)


According to Orfield (2000), OCR under the Reagan administration frequently opposed civil rights remedies for students of color outright (113, 126); under Reagan, OCR even actively stopped collecting much race-based data on schools. Thomas himself would go on to be a key voice against “race conscious” policies on the Supreme Court.


The first President Bush nominated Michael L. Williams, a former Justice Department lawyer “without substantial ties to traditional civil rights groups” who pursued a personal campaign against race-specific scholarships while in office (Walsh 2001). Norma Cantu, the assistant secretary appointed in the Clinton administration, no longer framed race-conscious activities as inherently “discriminatory,” and neither, thus, did the office. (In an interview with the National Education Association, Cantu explicitly critiqued her predecessor for “imagining that race-targeted scholarships were a major civil rights problem for white students”; National Education Association 1994). George W Bush appointed his nominee for assistant secretary of OCR, Gerald A. Reynolds, temporarily in 2001 during a Congressional recess, after Reynolds’s relatively short career as a utilities lawyer. Reynolds resigned in October 2003 after awaiting Senate confirmation that failed “amid Democratic concerns about his opposition to affirmative action” (Cavanagh 2004). After that, the Bush administration resisted appointing anyone to formally direct the agency. As a report from the U.S. Commission on Civil Rights (2004) noted with concern, the Bush administration actively left vacant, during Bush’s first term, the assistant secretary position and two other key positions within OCR: the deputy assistant secretary positions for enforcement and for policy (vacant respectively since December 2002 and November 2003). OCR’s substitute leader during Bush’s first term, Kenneth L. Marcus (Reynolds’s former assistant), received the title “Delegated the authority of the assistant secretary of education for civil rights.”9 Marcus helped staff OCR’s D.C. headquarters with new hires affiliated with the Center for Equal Opportunity, an anti-affirmative action think tank itself busy filing numerous OCR complaints nationwide against universities using racially conscious admissions policies (NAACP 2005).


OCR’s leader thus has a serious impact on the agency’s basic definitions of racial discrimination, a serious impact on complaint investigation, and by extension, a serious impact on the definition of discrimination pervasive in the nation’s schools and universities. Before his temporary appointment by George W Bush, Gerald A. Reynolds had argued openly that he opposed affirmative action and that he did not believe in certain core methods of fighting racial discrimination, particularly in using the long legacy of “disparate impact” analysis to open civil rights investigations based on statistics showing racially disproportionate student assignment or treatment. For example, Reynolds was not in favor of opening cases triggered by statistics showing that suspiciously high proportions of a district’s or school’s black students are placed in special education or suspended (see description of disparate impact analysis below).10 Worries about pursuing disparate impact analysis quickly percolated through OCR. As Losen (2004) described, after Reynolds’s appointment, some top OCR officials actually distributed internal memos to employees instructing them to avoid investigating cases in which complainants showed up primarily with troublingly racialized or gendered statistics.


Like many prior administrations, the George W Bush administration has obstructed some of OCR’s most basic internal efforts to protect students of color from discrimination. The Bush administration has done so both by refusing actively to move forward with proactive Title VI projects prepared under earlier administrations and by removing from circulation documents designed to inform educators and district officials on how to comply with Title VI.11 The administration has also forcefully directed the public’s attention to new framings of racial discrimination favored by the administration and to new discrimination issues altogether.


When I worked at OCR during the Clinton administration, for example, senior OCR lawyers produced two guides designed to assist OCR employees and K-12 educators and officials in addressing and preventing racial discrimination in education. One guide was a research-based manual for districts and universities that explained how to avoid the racially discriminatory pitfalls of many widespread testing practices: The Use of Tests as Part of High Stakes Decision Making for Students: A Resource Guide for Educators and Policymakers, which people within OCR informally called “The Testing Guide.” The other guide was a resource comparability manual designed to help OCR investigators examine whether educational and facility resources were racially equitably distributed within school districts. When the Bush administration came to power shortly before I left OCR, we were told that such proactive documents would be put on indefinite hold for administrative “review.” To my understanding, OCR employees were further discouraged from distributing many explanatory materials that OCR had been handing out to districts for years as “technical assistance” to simply explain civil rights laws like Title VI. According to the U.S. Commission on Civil Rights (2004, 23), the Testing Guide, released publicly in 2000, was “archived” under Bush; it is now available under Archived Documents on the OCR Web site with the caveat, “retained for historical purposes.”12 The resource comparability guide was released for internal office use only, with no proactive work on the subject continued. On OCR’s public Web site as of late 2004, a “Topics A to Z” information section contains an old link to Tests and Testing that no longer works. No link exists for resource comparability.13


While these Clinton-era documents are not being proactively used to guide schools and districts and OCR employees in Title VI compliance, some new documents offering a different take on Title VI have been created under Bush. OCR’s Web site now offers readers a 2004 downloadable report on “race-neutral” approaches to programming and admissions. “The Office for Civil Rights,” the site explains, “seeks to provide educational institutions with information about the ‘race-neutral’ options available to them.” While the Supreme Court actually ruled in Grutter v. Bollinger (2003) that race-conscious admissions for the purposes of achieving a diverse student body are constitutional, according to the NAACP Legal Defense and Education Fund (2005), OCR’s own “race neutral” guidance booklet, combined with affirmative action foes’ threats to file OCR cases against universities pursuing affirmative action strategies, has caused many admissions officers to fear that all forms of race-conscious admissions work might be challenged as illegal. An admissions officer at a large state university suggested to me in 2005 that the “race neutral” OCR guidance booklet was indeed having a chilling effect among many university admissions officers across the country, who feared that any consideration of student race in their admissions procedures would invite OCR complaint or court challenge.


OCR’s Web site’s A to Z list now also provides links for readers to access information and to file complaints with OCR regarding the new Boy Scouts of America Equal Access Act, which OCR is now mandated to enforce since the passage of Bush’s No Child Left Behind (NCLB) education bill.14 Although the Boy Scouts themselves exclude gay youth, the law basically states that schools receiving federal funds must allow the Boy Scouts and other patriotic groups to meet on their premises. Importantly, the Web site also points to additional, less-discussed administration priorities lodged in the NCLB Act, policies about which all Americans should stay informed. For example, NCLB prohibits districts or schools receiving the Act’s funding from offering contraceptives (SEC. 9526). NCLB also mandates that secondary schools receiving funding must allow military recruiters to access students’ names, addresses, and telephone listings (SEC. 9528).


Broader legal analytic shifts in the courts also affect the race work of OCR, and complainants should stay aware of these as well. As Nowak (1995) argues more broadly, an analytic backlash restricting the analyses used in racial discrimination investigation has restricted the work of courtroom lawyers: since the late 1980s, he argues, “the Supreme Court seems to have turned against racial minorities, as it has narrowed earlier rulings concerning the Equal Protection Clause and restricted the efforts of legislatures to help racial minorities” (349). Most recently, the 2001 Supreme Court case Alexander v. Sandoval, which held that individuals can only use Title VI to sue in courts for clearly “intentional” acts of discrimination, has, according to the Leadership Conference on Civil Rights Education Fund (2004), made it “easier for publicly-funded service programs to discriminate” against students of color through less direct practices. But in the case of Sandoval, which restricts individuals’ abilities to file lawsuits alleging racial discrimination unless they can amass evidence of “intentional” racial harm, OCR actually becomes a much more important avenue for pursuing race discrimination claims; OCR, unlike the courts, can still investigate alleged discriminatory practices and patterns in schools through investigations that use evidence of race-group harm, not just of actors’ presumed “intentions.”15 Complainants should know, then, that while they would have to arrive in court with (often impossible) proof of educators’ or policy makers’ intent to harm, they can arrive at OCR equipped instead with strong comparative evidence of how harm to children patterns out racially, and with evidence identifying some concrete practice, policy, or process that is causing the harm.16


Given this combination of federal appointments, administrative actions, and legal developments, however, even those Americans who know of OCR might justifiably be reluctant to request an investigation of a race discrimination case when a particular president is in office. 17Still, because OCR activity relies upon the investigatory work of many individual employees, the agency is not completely handcuffed in its required efforts to protect students of color from discrimination, under even the administrations most resistant to such protections. That is, OCR’s district-by-district, case-by-case resolution process results in many ordinary conversations and negotiations that can result in important changes in school policies and practices, which can help equalize opportunities for students of color despite swings in presidential ideology. Once Title VI cases are opened and troubling evidence of unequal opportunity or treatment is brought to bear, significant remedies can be negotiated with district and school educators if OCR employees do their work thoughtfully (Pollock forthcoming). For instance, I know of remedies negotiated with districts that included clarified discipline policies, new plans for dealing with racial harassment, the expungement of records for students of color found to have been disciplined unfairly, professional development for faculty serving diverse student bodies, the hiring of additional teachers, and even compensatory hours of instruction. Even individual investigators’ and attorneys’ conversations with districts often (if done well) achieve the important goal of informing administrators and educators about racial civil rights law and about necessary steps for ensuring compliance with that law; such information often helps administrators and educators avoid future problems with their constituents.


Thus, despite the influence of presidential obstruction and despite increasing restrictions on individuals’ abilities to pursue racial discrimination claims in state or federal courts, it is still a citizen’s right to demand that the investigatory apparatus of OCR examine alleged racial discrimination in federally funded schools and districts. By law, OCR is required to take and investigate any “viable” complaint it receives. Of course, how viability is perceived and defined by OCR under different administrations may vary, and thus citizens need to be aware of how to produce complaints that can make it through the process, even when the process seems onerous.


RACIAL DISCRIMINATION SEEMS HARDER TO LABEL THAN OTHER DISCRIMINATION FORMS


It is crucial that complainants be ready to navigate the third issue sometimes hampering OCR’s race work: Racial discrimination complaints often seem far less easily investigated and remedied than the other complaints of discrimination now covered at OCR. This is in part because, as stated earlier, American political shifts have disproportionately disputed the process of protecting children from discrimination based on race. Today, far fewer Americans protest the protection of disabled students; more protest the protection of girls and language minorities, but race cases seem to raise the most controversy over how to define and act on children’s rights (Pollock, forthcoming). I suggest that to navigate this controversy successfully, complainants must come equipped with especially detailed evidence of harm to children.


A large part of race work’s murkiness has to do with the law itself. The more detailed the rules on what constitutes discrimination, the easier it is to find and remedy obvious violations of those rules. Thus, the openness and vagueness of the legal definition of racial discrimination compared with the more detailed rules about disability discrimination, for example, mean that race work will be more contentious. In 1964, Congress put into text with Title VI just a basic prohibition against racial “discrimination” in federally funded programs; the department’s implementing regulations did not get much more specific. In 1996, the U.S. Commission on Civil Rights found that while the public seemed to understand the federal regulations for implementing Section 504 (disability rights) in education, “OCR staff and officials” themselves had noted “that the general public has little understanding of Title VI in comparison with Section 504” (U.S. Commission on Civil Rights 2004, 17).


The law and implementing regulations on disability discrimination focus clearly on rules for evaluating students, rules for contesting such evaluations, and rules for getting disabled students the services that their Individualized Education Plans (IEPs) say they should be getting. In contrast, the bare bones antidiscrimination wording of Title VI, which simply prohibits “denying benefits” to students or “excluding” students because of race, color, or national origin, was fleshed out comparatively little in subsequent federal regulations. Civil rights laws, federal regulations developed by the department to “implement” civil rights laws, and internal policy guidance became more specific and detailed as they developed, having first offered basic protection to students from discrimination on the basis of race and gradually developing more specific provisions to protect language minorities from academic discrimination, girls from sexual harassment and inequity in athletic resources or academic opportunities, and finally, “the disabled” from inattention to their conditions or academic needs. Paradoxically, pursuing race cases at OCR can be complicated by the fact that the original simplicity of racial civil rights law sometimes makes analyzing today’s racial discrimination incidents a particularly murky process.


Accordingly, I want to spend the rest of this article discussing disputes over analyzing discrimination that complainants bringing race cases to OCR must be ready to weather and navigate.18 As I discuss elsewhere, complainants must be socially savvy about what kinds of arguments for racially equal opportunity now best prompt educators to analyze their own behaviors (Pollock forthcoming). What I want to discuss here is how complainants must make their complaints to OCR analytically sound. First, the complaint itself must be well framed.


CLAIMING DISCRIMINATION: INITIAL ANALYTIC DEBATES


“Complainants,” or the ordinary individuals bringing allegations of discrimination to OCR, are typically adults, the majority of whom are acting on behalf of their own children or children they serve in schools and programs. Complainants typically explain that they have resorted to OCR because they have not been able to remedy the problem within their local school systems. Parents come to OCR convinced that principals, middle-level administrators, and district superintendents have ignored their requests to help their children. Teachers come to OCR feeling rebuffed by principals and personnel directors. College students come to OCR feeling trivialized by university staff and administrators. Community outreach workers come to OCR saying that they feel impotent in the face of districts’ internal politics. Resolving OCR complaints typically relies upon reopening lines of communication between complainants and the school systems that they have challenged. For the duration of a complaint, OCR acts as the go-between between “complainant” and “recipient.”


OCR investigates complaints of discrimination filed by anyone who can frame an introductory complaint in which facts are presented in such a way that the allegations appear to investigators and lawyers to fall within the jurisdiction of the agency’s core laws and regulations. The complaint itself must make the alleged incidents sound like a potential violation of OCR-enforced civil rights laws. Citing civil rights law verbatim in the complaint is not necessary; the successful complainants approaching OCR typically just use the popular basic civil rights definition of discrimination, claiming that children—or they themselves in the case of parents or adult students—have experienced unequal treatment or opportunity in an educational institution on the basis of a subset of protected group identifications (race/national origin, sex, disability, or language minority status).


If claims fail to produce an analysis comprehensible to OCR officials trained in civil rights law, they do not make it past this initial point in the process. Some claims, for example, allege forms of discrimination not covered under OCR’s laws and regulations. An example of such a complaint is one claiming discrimination against a student in a private preschool program that is not at all federally funded,19 or a complaint of discrimination based on income. Other claims are found by lawyers to provide “insufficient information” (or, as OCR’s complaint investigation manual puts it, an “insufficient factual basis”) justifying an investigation. An example of such a claim is if a graduate student argued that he felt disliked by his female professor on the basis of gender, but he could offer no concrete examples of how or why this assumed dislike made itself evident in gendered treatment.


OCR investigation of a complaint thus begins only if the complainant can “state a claim” of discrimination that falls within the logic of the core civil rights laws enforced by OCR. Still, if OCR begins to pursue an investigation, this pursuit involves no presumption of the truth of the allegations. Investigation simply indicates that the alleged actions, if they occurred, potentially present a civil rights problem. Thus, “stating a claim” of racial discrimination successfully requires just a bit of familiarity with the basic ideas of Title VI.


After the 1954 Brown opinion held that segregating children racially in schools was an inherently unequal provision of educational opportunity, Title VI decreed in 1964 that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” In OCR’s subsequent federal regulations, Title VI a bit more specifically prohibited “a recipient [meaning a school, district, university, or educational program receiving federal dollars], on the basis of race, color, or national origin,” from denying an individual any “service” or “benefit” provided under the recipient’s program; providing any service or benefit that is “different” from that provided to others under the program; or subjecting an individual to “separate” treatment in any matter related to his or her receipt of any service or benefit.20


In considering investigating race complaints, OCR employees have no choice but to use this basic Title VI logic of equal opportunity, for they are working within this legal framework defining the basic parameters of racial “discrimination.” They will thus typically need to see a complaint comparing the treatment of and opportunities given to students “of color” in schools and districts against the treatment of and opportunities given to students of other race groups, typically “Whites.” Using the same logic in gender, language, and disability cases, which developed using Title VI’s basic comparative tactics, they will compare the treatment of, and opportunities given to, girls, English language learners, and the disabled against the opportunities given kids presumed to be standard—respectively, boys, English speakers, and the implicitly “abled.” (In disability and language minority cases, comparisons are also made to ideal or adequate treatment, since treating “disabled” and language minority students the same as “regular” students is often discriminatory.)


Direct comparison of the treatment of specific students of color as compared with specific students of other race groups is called disparate treatment analysis; analysis of more systemic ways in which opportunities are afforded or denied students of color in the aggregate as (typically compared with Whites) is called systemic disparate treatment analysis. Analysis of the possibly disparate impact on students of color of ostensibly neutral practices, rules, or policies is called disparate impact analysis. The last kind of investigation, disparate impact investigation, can uncover cumulative practices in schools and districts that have harmed students of color disproportionately without any conscious intent to discriminate on the part of policy makers or educators.


An example of an allegation of disparate treatment would be if the complainant says that Juan, Latino, was suspended for fighting yet John, White, was not suspended for fighting, while the educators doing the suspending can provide no substantial reason for the difference. An example of an allegation of systemic disparate treatment would be if the complainant says that misbehaving Latino students are repeatedly framed as defiant and disproportionately suspended under the defiance rule, while misbehaving White students are repeatedly framed as annoying and disproportionately overlooked; the defiance rule itself is not judged to be discriminatory, but rather, the rule is discriminatorily applied. Finally, an example of an allegation of disparate impact would be a complainant’s argument that some aspect of the ostensibly neutral special education evaluation process, in cumulative use, has adults placing a disproportionately large number of Black male children in behaviorally oriented classes for the emotionally disturbed, and White children in classes designed to assist with learning disabilities, even while educators frame these placements as objective moves in the students’ interests. In this case, the placement practice itself is alleged to produce harmful racial outcomes despite educators’ intentions.


In each kind of analysis, given the language and logic of Title VI, an investigator’s basic task when a race complaint reaches OCR is always to determine whether the complaint successfully alleges that district employees’ individual or cumulative actions have disadvantaged students “on the ground of” students’ race—and some complaints make the claim for race’s relevance far more successfully than others. The Title VI disparate treatment logic of denial of services, different service provision, and separate treatment itself has clearly become fundamental to much everyday inequality analysis in the United States (Minow 1990), such that many basic “disparate treatment” complaints alleging overt racial discrimination arrive at OCR already neatly structured around (1) some specific claim of denial, different treatment, or separation, (2) the literal phrase “because he’s/she’s (race),” and (3) a comparison typically to white students, such as:


Mother: The principal keeps saying they didn’t call the doctor when my daughter got hurt [denial of services/benefit] because she wasn’t really hurt that badly, but I know it was because she was Mexican [because of race]. If she was White, they would have called right away—when Julie got hurt (she’s White), the doctor was there within minutes. [comparison to others under the program].


When such a complainant provides such detailed comparative description explaining why the specific alleged incidents of different treatment seemed race based—for example, an actual example of a White student being assisted immediately—the complaint is fairly easy to open. A comparison to standard policy—evidence from the school handbook on what is supposed to happen when students at the school get injured—also assists in supporting a claim that the student in question may have been denied normal procedures “because of race.” A hunch that negative treatment of children is race based is not sufficient. Complainants must show up with as much direct evidence as possible of the racial nature of the different treatment that they allege. That is, complainants must be clear in describing how people have been unfairly treated as race group members, typically through comparison with standard policy or in comparison with people of other races. OCR’s basic investigatory task is then to compare whether students experienced unjustifiably different treatment as race group members; complainants who bring direct evidence of similarly situated students experiencing better treatment do best (Pollock forthcoming).21


Still other complainants show up with aggregated statistics that are themselves racially disparate and, to the complainant, suggest unequal treatment of students of color in comparison with Whites.22 A complaint might state, for example, that a district’s high-track classes are full of White students, while all the students in low-track classes are Black and Latino, and suggest that this pattern itself indicates discrimination against Black and Latino students. These complainants would do best to arrive similarly equipped with evidence of specific practices creating these racial patterns—with an argument about why these practices are unfair to students of color.


Today, amassing evidence of the specific practices playing a role in producing racial disparities in achievement, discipline, or class placement is especially important. While in the one-time medical care case above, the alleged discrimination may have taken shape as fairly overt different treatment—the injured student of color languished in the office while injured White students typically got whisked away to nurses—the practices longitudinally producing racial patterns take far more effort to analyze. Pinpointing specific practices that treat students differently is, however, still possible: in the tracking case, for example, the troublingly racial pattern might have taken shape through institutionally widespread practices such as specific course admissions policies and counseling practices, many of which might seem on the surface to be neutral but in use may have cumulative discriminatory effects without intent on the part of any policy maker or individual adult. For example, Mickelson (2005) has argued that in Charlotte, North Carolina, racially harmful tracking takes shape in part through the publication of inaccurate enrollment requirements suggesting that a student must be tested as “gifted” before he or she can enroll in advanced placement (AP). Such information, neutral on its face, has a racially disparate impact on Black students who, in another racially unfair practice, are less likely to be tested as “gifted” in the first place.


Complaints about aggregated patterns (no Black students in AP) thus do best in the current civil rights climate if they include concrete evidence like this of specific practices that may have contributed to forming the larger racial pattern being critiqued. Because OCR’s current complaint resolution manual (revised under George W Bush) specifically cautions investigators from opening cases based on statistics alone, it is particularly helpful to arrive with evidence of how specific students were treated or with concrete evidence of any deviations from standard procedure that raise a red flag.23 For example, if there is evidence that some students of color who meet a school’s eligibility criteria for high-track classes have been tracked into low-track classes, or specific examples of guidance counselors tracking individual White student X into a high-track class while tracking individual Black student Y, who has similar eligibility, into a low-track class, such evidence will greatly assist a complaint about racially disparate tracking patterns.


Regardless, while filing the disparate treatment claims that are easier to open and investigate, citizens rightfully concerned about racially disparate patterns in discipline, special education placement, tracking, and so on, should continue to bring disparate impact claims to OCR. They should just come equipped with evidence (such as Mickelson’s above) of how specific policies and practices in place seem to be disproportionately harming students of color. Such complainants should also provide evidence demonstrating specific children of color who have been unjustifiably (and even unintentionally) harmed by school or district practices.


If it is determined that the complainant has “stated a claim” that can be investigated under OCR’s laws and regulations, the investigation begins and “the facts” are gathered. In any investigation’s quest to determine whether the discriminatory acts alleged by the complainant have in fact occurred within a school or university system, multiple players—OCR employees, district/university administrators, the complainants themselves, and many other actors who are revealed to know something about or be implicated in the alleged acts—will embark upon a lengthy journey of joint and highly disputed discrimination analysis. While this dispute can be heated and thus socially unpleasant, successful multiple-player analysis and dispute is essential to the real civil rights work of OCR (Pollock forthcoming).


Like educational equality itself, which, Kirp (1982) notes, “does not assume a single, simple, unitary, and invariant form” (9), alleged unequal educational treatment looks different in different circumstances. Each must be analyzed uniquely by lawyers, parents, and the actual educators involved in order to determine both whether what happened in the past was racially unfair and what treating students fairly in the future actually would look like. Using OCR as a lever to help investigate and address contemporary instances of racial discrimination—and achieving, through OCR, long-term remedies that actually work in schools and districts—will particularly require that school and district people learn to analyze discrimination themselves. Using OCR to help jump start and model this analytic process over the course of an investigation requires being ready to navigate a minefield of conflicts over what contemporary racial discrimination can now even be said to be. Involving a legalistic agency like OCR in a local dispute over fairness both provides some essential analytic tools for analyzing fair treatment, and prompts particular sorts of resistance from educators who inevitably feel accused unfairly of “discrimination.” Accordingly, complainants must be ready to negotiate conflict with aplomb.


When embarking upon an investigation of a complaint, OCR sends a letter to the recipient, usually a district superintendent or university chancellor held responsible in legal terms as a district or university’s head chief, articulating the complainant’s allegations, citing the specific law underlying the agency’s right to investigate, and requesting basic information necessary to begin the investigation. Many district and university administrators quite understandably react nervously or even angrily to OCR’s first contact, for OCR’s very presence on school district grounds or university campuses de facto both amplifies the complainant’s critique and signals to the larger community that a discrimination investigation is under way. When the very presence of OCR inspires in some administrators the spirit of battle and immediate denial, as happens particularly with those administrators who have already had acrimonious relationships with complainants, this reaction itself can further strain social relations between complainants and recipients (retaliation against complainants is, however, illegal). Administrator resistance can also result in delays in getting information, which can immediately slow the investigation and resolution of the complaint. Other administrators, however, express an immediate desire to move forward to discuss and even resolve the allegations raised, either for the sake of the district’s children or in the interests of preserving community relations. Those willing to embark upon self-inquiry typically end up with quicker outcomes that best serve students. In any case, federal regulation itself requires recipients—district, university, and school personnel—to gather whatever relevant data OCR requests; the complainant too must provide additional evidence supporting his or her allegations. Such gathering of evidence itself instructs both sets of players in analyzing discrimination, but complainants should be prepared throughout for disputes over what racial discrimination is.


EARLY INVESTIGATION: BASIC DISPUTES OVER EVIDENCE AND ANALYSIS


As investigations begin, complainants to OCR must be ready to discuss and verify in detail, multiple times, how each alleged incident of unequal treatment played out. From the start of any Title VI complaint, various players within schools, communities, and districts are often in disagreement not just over what occurred; they may also disagree over defining what racially inequitable treatment actually looks like. While some parents see racial discrimination in unreturned phone calls or a teacher’s angry request that a student of color leave his classroom, many teachers and administrators only consider as racially discriminatory blatant acts that seem purposefully designed to harm children because of race. Complainants must always be ready to describe, once again, how the treatment they call “discriminatory” was comparatively unfair and harmful.


Mediating between players who disagree over the definition of racial discrimination is routine in OCR’s race-related work and is a crucial part of both investigation and remedy. In investigating and resolving the race cases I was assigned at OCR, it quickly became clear that although most educators and school officials knew that blatant inequitable treatment of students based on race was not allowed, different people measured racially inequitable treatment and opportunity with very different rulers. Indeed, analytic disputes over racial harm, racial fairness, and even the relevance of race at all was the reason that most school and district officials had resisted complainants’ early attempts to complain internally, and thus, why complainants had approached OCR in frustration in the first place.


Because racialized events in schools now typically play out without players ever articulating that their acts were due to race (see Pollock 2004a on “colormuteness,” or active resistance to race talk), it is rare that any complainant can show up with proof of the recipients’ intent to discriminate “because” of race; indeed, complainant accusations of intent typically make recipients more defensive rather than ready to negotiate (Pollock forthcoming).24 Complainants are, I contend, most successful when they show up instead with comparative evidence that students have been harmed as race group members.


However, while OCR does not require direct stated proof of alleged discriminators’ intentions either to open a case or to come to a determination of whether discrimination occurred, an indirect search for intent undergirds most legal analysis of discrimination, such that when OCR shows up for any investigation, conflicting narratives of players’ intentions will always make the investigation process even more contentious. This is, thus, a key set of disputes that complainants must be ready to engage—or perhaps avoid. I argue elsewhere (Pollock forthcoming) that the most successful complainants to OCR show up with proof of racial harm, not insinuations about educators’ racist intentions. The real task of antidiscrimination work in education, after all, is to analyze and remedy harm to children in racial terms. But disputes over intentions and even “the facts” will inevitably arise in an OCR investigation, and complainants should be prepared.


THE DIFFICULTY OF PROVING RACIAL DISCRIMINATION: THE PROBLEM OF CONFLICTING NARRATIVES


District or school officials who are angry or anxious about allegations of racial discrimination typically make statements such as this: “Of course we didn’t single him out for the suspension because he’s Black—we suspended him because he was defiant.”25 While complaints of racial discrimination always allege that school or district people have taken unfair or harmful actions against students because of race, recipient responses to this allegation typically assert exactly the opposite. In any racial discrimination investigation, thus, complainants must expect continued contestation with school officials and educators over whether acts have taken place because of race. Again, the most successful complainants provide evidence of how students have been harmed in racially patterned ways. The following vignette, from an actual case that I worked on at OCR, demonstrates how analytically and socially complicated the “because of race” issue can be in the context of a complaint.26


In the first case I investigated while at OCR, a White school district administrator was assigned by her superintendent to gather information relating to a Black grandmother’s OCR complaint of racially discriminatory discipline, neglect, and harassment against her grandson in his elementary school. In our first phone conversation, this administrator emphasized to me that her own investigation into the incidents in question had convinced her that each allegation outlined by the complainant was not a racial issue at all. The grandmother “has a lens colored by race,” she told me, adding, “She can’t sort out normal children’s squabble things—she thinks it’s all race.” She added that a small conflict between kids was “all racist” in the grandmother’s eyes. “She hasn’t learned to work with us. She comes with a two-by-four ready to fight,” the administrator said.


The grandmother’s local allegations of intentional “racism,” as well as racial harm to her grandson, clearly were raising district defenses. Still, in considering concrete evidence of harm to the child, this administrator admitted that the school’s principal and vice principal had made mistakes. For instance, the child’s doctor was indeed not called when he was injured in a fight; the grandmother had alleged correctly. But this was not because of race, according to the administrator, but because the vice principal was inexperienced. She also told me that she regretted that the principal had told the grandmother that some racial slurs students had directed at her grandson were as routine as the “four-eyes” teasing of a glasses wearer. Still, she said, the principal’s intent was not racial. An incident in which the grandson’s teacher put her arm on the boy’s shoulder was not a choking incident, as the grandmother had alleged; it was simply a teacher trying to get a student to pay attention, and it was certainly not because of race, in any case.


According to this school administrator, the grandmother was simply “a high-maintenance grandma” who was always calling the school, who was disorganized in how she presented her concerns, and who kept urging the boy’s third-grade sister to report school-day incidents as if they were racially discriminatory when they were not. The administrator said that she had responded promptly to each of the grandmother’s calls and had called the grandmother on her own, attended meetings about the child, moved the children to another school at the grandmother’s request, urged the grandmother to gather dated information to support her claims, and explained to the grandmother that these incidents were “normal children things, not racially motivated.”


Her own goal, the administrator confessed, was to have the district listen to the grandmother and respond to her. She said, “But she must understand that the things that happened were not based on race—they were with children—with human beings.”


The response of this administrator was typical; school officials usually insist that their actions are not “motivated” by the racial group memberships of students, and analytically, this claim must be entertained because it might be true (see Pollock 2004b). Given that ascertaining an administrator’s true, inner racial “intentions” is an analytic and social dead end, however (Krieger 1995, Pollock forthcoming), to proceed, discrimination analysis typically now importantly begins to compare the experience of harm—to compare the treatment or opportunities afforded the individual in question with those afforded the “norm.” In this case, the tasks were (1) to compare the treatment of the Black grandson with the treatment of White students his age, and (2) to compare adults’ treatment of him with their “typical” behavior with students. OCR investigators also analyze patterns involving all school or district members of the group to which the individual says he belongs. In this case, we checked to see if there were any patterns involving other Black students at the school being physically approached by teachers or called names by students. But to do any such comparative analysis, of course, lawyers and investigators need evidence. Too often, a lack of legally adequate evidence regarding racial discrimination cases makes it impossible for OCR to proceed, and complainants thus need to arrive with as much such comparative evidence of harm as possible.


To make the comparisons necessary for legal analysis, OCR will request and examine existing documentation of the incidents in question. Investigators will also examine other existing data, like suspension referrals, class schedules, or attendance logs. OCR investigators will also most likely request that district officials gather new incident reports from the players involved in the incidents and that they compile necessary statistics (on numbers of disciplinary incidents by race in a given year, for example). Via interviews in person and over the phone, OCR investigators will also gather their own accounts of the events and practices involved.


This legal analysis will, importantly, typically require comparing concrete examples of the treatment of the students in question with standard practice or with specific instances of treatment of students from other groups, typically “the norm” (e.g., White students, boys, the “abled,” English-fluent students). To make such comparisons, lawyers and OCR investigators will also need to know what normal procedures are for the acts in question so as to have standards against which to measure the alleged unequal experience of those considered different. For instance, to investigate a claim that a Latino father whom school administrators deemed a problem is prohibited from picking up his child from school through the imposition of abnormal parking restrictions, lawyers need evidence of what normal parking procedures are—and eventually, evidence showing that parents of other groups are allowed to pick up their children more easily.


Lawyers thus need many literal descriptions of standard practice, often on paper (e.g., policy statements, procedures lists, rules, and handbooks). However, many of the everyday “standard” operating rules of schools or districts are often not codified on paper or even in conscious knowledge. As many investigators proceed, in fact, they find that much of the evidence necessary for legal comparisons is actually not kept by schools or districts, which is why it is helpful when complainants document standard practices themselves.


While schools often keep surprisingly detailed records on conflicts with “problem” students and parents via disciplinary referrals or administrators’ logs, further, they rarely keep records on the standard treatment of students or parents who are not deemed to cause problems. For instance, to investigate whether a Black student was unfairly given a detention for shouting obscenities in the midst of a playground of White students who were also shouting obscenities, lawyers need to prove first that the White students were also shouting obscenities, and second that these White students were not given detention. While it is likely that records abound on the Black student who was given detention, however, it is rare for an educator to keep records on White students who were not given detention. In the everyday world of school record keeping, that is, absent data on “normal” practice—often, as scholarship on whiteness would predict, data on the treatment of Whites (see, e.g., Fine et al. 1997) and, more generally, on the treatment of English speakers, the abled, or boys—means that the comparisons essential for civil rights analysis must often be reconstructed post facto. It is thus essential that those attempting to document racial discrimination in their schools or districts keep careful records of the norms and specific, concrete deviations from them.


Increasingly, however, more schools and districts across the country contain almost no White students at all (see Orfield and Eaton 1996). While some race cases pit groups of color against one another, in many race cases there are few “norm” students for direct comparison, and civil rights analysts can find themselves potentially unable to make the comparisons legally necessary for claiming discrimination. Though it seems crude, OCR lawyers and investigators must often seek White students against which they measure the harmful treatment of children of color as racial; such is the logic of the law. Given the demographics of many of today’s urban districts, all the students in any given off-color school or school district may be treated equally poorly.27 In such cases, calling the inadequate treatment racial discrimination using OCR’s regulations seemingly becomes nearly impossible. This is why attorneys working on resource comparability analysis within OCR during the Clinton administration had been urging that racial comparisons, particularly of available academic opportunities, also become metropolitan (i.e., including suburbs) rather than simply intradistrict. It is also why some advocates, particularly those working on issues of academic opportunity, have chosen to push states to employ their state-constitution-based logics of adequacy, which compare the opportunities available to students of color with the standard opportunities deemed adequate for succeeding at schooling tasks (Schrag 2004). Both strategies are also analytically essential in the current era.


In short, in the current demographic, political, and legal context, proving that acts against students are discriminatory on the basis of race often seems to require greater amounts of evidence than proving discrimination against girls, language minorities, or the disabled. Today’s advocate for racially equal opportunity, then, has to be particularly good at showing exactly how educational opportunity is currently racially unequal (Pollock forthcoming). As I want to conclude by showing, complaints about race-based academic discrimination—that is, complaints about racially unequal opportunities to learn—must be framed and documented particularly well. Specifying just how concrete academic opportunities to learn are inequitably provided along racial lines is one of the core contemporary civil rights tasks 50 years after Brown. In an era when general statements about racially unequal opportunity seem to be unconvincing to skeptics (Pollock forthcoming), complainants must approach OCR with cases that show just how students of color are denied specific, concrete opportunities to learn in comparison with Whites or in comparison with common standards. Ironically, OCR’s work on behalf of disabled students is a particularly important civil rights model, for disability regulations offer particularly concrete tools for analyzing equal educational opportunity.


THE ESSENTIAL BATTLE TO FRAME RACIALLY PATTERNED ACADEMIC INADEQUACY AS RACIAL DISCRIMINATION 50 YEARS AFTER BROWN


As stated earlier, OCR investigations of academic discrimination against disabled students can be strikingly detailed. The disability regulations stipulate that in schools, districts, and universities, recipients must provide “handicapped” students with educational opportunities both “equal” and “effective” in comparison with those provided the non-”handicapped” student: the “educational needs of handicapped persons” must be met “as adequately as the needs of nonhandicapped persons are met” (104.33 34 CFR Ch. 1, 7-1-98 edition, 344). Accordingly, law and regulation for protecting disabled students require schools to assess disabled students, hold meetings on their needs and educational goals, plan individualized programs for their education, and follow these programs to the letter. If a parent thinks that her child is disabled, for example, she has a civil right to have a professional assessment of him; if this assessment determines the child is not disabled, she has a civil right to challenge this assessment with an outside moderator.28 If assessors determine that a child is disabled, the child then has a civil right to have an individualized plan designed to assist him in his school work and the right to have that plan followed. Disabled students, thus, are actually entitled by civil rights law to have attention paid to the details of their academic development. Disabled students’ Individual Education Plans (IEPs), the cornerstone of disabled student rights, hold educators accountable for providing the specific academic assistance professionally deemed necessary to meet each student’s needs.


Civil rights law has also gradually given language-minority students an entitlement to detailed academic attention. According to federal law and subsequent OCR policy guidance, schools cannot throw English language learners (ELLs) into English-only classrooms without making specific provisions for their language development needs. Although this legal standard has been challenged in those states in which ballot initiatives have gutted bilingual services, and although prescribed attention is still routinely denied ELLs in schools and districts (civil rights workers spend a good deal of time enforcing attention to ELLs’ academic needs because they are often left to “sink or swim” in English-only classrooms despite the law; Olsen 1995), the very legal prescription of a right to attention to ELLs’ academic needs prompts lawyers to seek concrete academic opportunities for students learning English.


In contrast, to the skeptical eye, other students of color are protected only in very general terms from benefit denial, exclusion, and separate and different treatment by Title VI law and regulation; to some, this means advocates must argue that students deserve detailed academic attention under law at all.29 Wielding civil rights law to ensure the availability of concrete, academically adequate opportunities to students of color, however, is a growing area of civil rights activism and one that advocates that students of color should start pressing OCR on in an era of national attention to standards, accountability, and racial achievement gaps. I end this article with a very brief example meant to demonstrate the potential power of OCR’s apparatus to ensure that students of color are equally adequately prepared academically—and the need for people outside government to enlist that power by amassing detailed evidence of opportunities denied.


In February 2000, OCR convened an Early Learning Symposium that I organized for education researchers, elementary school practitioners, and OCR lawyers and investigators entitled Isolating Key Spheres of Elementary Equity: Defining Equal Access to Early Learning Opportunities. At the symposium, OCR lawyers, investigators, and bureaucrats came into contact with educational researchers, advocates, principals, teachers, and superintendents. All the invitees presented empirical evidence on the unequal quality of specific schooling opportunities available to K-3 students of color in the United States. The concrete evidence on these students’ unequal opportunities to learn included low teacher certification and retention rates, unavailable and outdated curricula, and a lack of necessary facilities for learning science or music. These data demonstrated empirically that students of color are routinely denied sufficient academic materials and attention, and that this early denial likely sets them up for later failure. As I describe elsewhere (Pollock forthcoming), trying to urge OCR to call this denial of adequate academic preparation to K-3 students of color discriminatory involved negotiation with lawyers and government bureaucrats over whether the enforcement branch of OCR should be involved in a territory that most school people take for granted as where the rubber hits the road: teaching and learning.30 While the lawyers in attendance routinely perused the minute details of disabled students’ special education plans, many worried that monitoring the academic opportunities available in classrooms serving students of color was not only a task that required excessive educational expertise, but also a task for which there was no legal warrant. Yet many of the OCR lawyers in attendance were already prepared to compare facilities, numbers of computers and books, and the credentials of teachers in their analysis of K-3 educational opportunity; most educators were ready to have them make these measurements of what one OCR colleague called the “basic skeleton” of academic opportunity. And over the course of the symposium, it became more apparent to many attendees that it would be necessary to enlist lawyers in ensuring that the full details of K-3 academic opportunity were equitable for students of color. Ensuring the actual availability of adequate opportunities for K-3 learning required infusing a civil rights logic into the educator project: using district, state, and federal standards as blueprints for defining and enforcing equal access to concrete early opportunities to learn.31


If states, districts, and the federal government are increasingly articulating what students are supposed to know and be able to do in the early grades, and if they are penalizing or advancing students based on the high-stakes demonstration of such knowledge and skills on tests, these standards, we realized, were a concrete benchmark against which both educators and lawyers could measure whether young students of color actually received fair opportunities to learn the fundamental skills, content, and concepts for which they were being held accountable. OCR needed concrete data from schools and districts to measure whether specific opportunities to learn specific skills, content, or concepts were present or lacking; ordinary advocates needed the enforcement power of Title VI to make providing such equal opportunity required.


This proactive, high-profile work on what we referred to as the “early learning project” was discontinued after George W. Bush was inaugurated. As the early learning project ground to a halt, I left OCR for the free-speech world of an academic job.


CONCLUSION


The early learning project clarified the contemporary need for concrete analysis of the racially unequal distribution of opportunities to learn, a civil rights logic that is percolating nationwide. Equipped with such empirical, solid evidence of academic and social harms to students of color, ordinary citizens can and should approach OCR with racial discrimination complaints, and in doing so push the enforcement branch to fulfill its federal mandate to protect the nation’s children from the various forms of racial discrimination that still haunt our schools 50 years after Brown. While some Americans can take their racial discrimination claims directly to court, model local efforts on the adequacy cases bubbling in various states, or pursue altogether no legal roads of opportunity advocacy, I suggest that others begin with well-documented, well-argued OCR complaints about the opportunities to learn and thrive given to students of color in comparison with the White students with whom they share schools, districts, and even metropolitan areas.


Halpern (1995) argues that too much public reliance on the law and legal apparatuses as key levers for achieving racial justice has diminished the possibility for change in the nation’s racial fabric since Brown and Title VI were passed. Lawyers and others using a legal framework, he points out, are forced always to “frame their analysis in terms of contrived concepts, issues, questions, and remedies that the legal system recognizes and deems legitimate” (ix). Critical race theorists (Crenshaw et al. 1995) have argued similarly that the law’s own analytic constrictions have stunted the nation’s efforts at racial justice. The truth of such arguments about the law’s strictures does not mean, however, that Americans should avoid using legal structures like OCR in a continuing quest for racial equality of opportunity in education. Rather, it means that getting as much racial equality work out of OCR as possible requires showing up with good evidence and arguments about the racial discrimination that one believes is still occurring in schools.


I contend that 50 years after Brown, ensuring racially equitable educational opportunity still demands enlisting the resources of government. Achieving racial equality will still require, in part, getting civil rights lawyers to investigate and deem impermissible concrete ways in which children of different races are still being treated unequally in education. In turn, it will also require that parents, students, educators, and administrators across the country keep investigating the distribution of opportunities to learn and the fairness of schooling practices in their own schools and districts. Providing equitable opportunity will, in the end, likely require collaboration as much as confrontation (Pollock forthcoming). While complainants must serve as watchdogs holding schools and districts accountable for providing equal opportunity, working with school and district people is, in the end, probably the best strategy for dismantling any racially discriminatory practices, regardless of whether one enlists the help of OCR to do so.


At its best, OCR’s greatest achievement in today’s school systems is fostering among educators and administrators a permanent consciousness about the continuing civil rights requirement to work locally to prevent racially inequitable and harmful acts against children. Indeed, regardless of the outcome of any case, a well-done OCR investigation puts local educators and administrators on guard for instances of racial harm or racially inequitable opportunity in their own schools and districts. Committing school and district officials and educators—those who will be left in charge once OCR is finished—to monitoring and analyzing their own systems for equal access and opportunity is essential. Thus, making discrimination analysis itself a local priority, and habituating school and district people to investigating and even debating the fairness of local practices more successfully, is an implicit goal of most OCR remedies, which often require districts to commit to collecting, analyzing, and responding to race, gender, or disability data themselves.


Still, convincing educators to self-monitor rather than bristle in self-defense against discrimination allegations is one of OCR’s biggest challenges. While OCR is, by regulation and design, a federal “hammer,” and while it must continue to be enlisted as such when necessary, the most successful enlistments of OCR 50 years after Brown actually mix government force (informing schools and districts that they must address discrimination) with the subtler process of convincing school and district employees that addressing discrimination is an important aspect of their own work. A hammer approach on its own can simply leave school and district people resenting complainants and students, while a negotiate-with-recipients approach on its own can allow complacency vis-a-vis civil rights. At its best, the combination helps educators to commit to keeping their own institutions equitable for students. Just as early enforcements of Brown, and later, Title VI, involved both forging a convincing logic and wielding the hammer of government (Tushnet 1994; Kluger 1975), doing good civil rights work on race in education today will require convincing educators themselves to undertake in-depth, local analysis of opportunity and harm.


Thus, while complainants bringing racial discrimination charges must be realistic, expect to navigate controversy, and understand how well prepared they must be, they should continue to press OCR to focus on the rights of students of color at the same time that its investigators and lawyers are working so hard to protect the rights of the disabled and others. But to keep OCR in the business of doing work to root out racial discrimination in education, more Americans must enlist the agency’s analytic and enforcement resources. Indeed, keeping Brown’s equality of opportunity vision alive requires that regular citizens continue to exercise the right to complain.


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Cite This Article as: Teachers College Record Volume 107 Number 9, 2005, p. 2106-2140
https://www.tcrecord.org ID Number: 12155, Date Accessed: 1/16/2022 4:52:10 PM

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About the Author
  • Mica Pollock
    Harvard Graduate School of Education
    E-mail Author
    MICA POLLOCK, assistant professor at the Harvard Graduate School of Education, studies youth and adults struggling to talk about, think about, and address fundamental questions of racialized inequality and diversity in their daily lives. An anthropologist of education, she examines ongoing (and intergenerational) disputes over difference, discrimination, and inequality in both school and community settings. Her early work has tackled everyday struggles over race and education in the United States. Her first book, Colormute: Race Talk Dilemmas in an American School (Princeton University Press, 2004), winner of the 2005 AERA Outstanding Book Award, explores one of the most confounding questions of U.S. educational practice: when it helps to talk in racial terms about people, practices, and policies in schools. As a fellow at the Radcliffe Institute for Advanced Study in 20042005, Pollock is writing a second book, Everyday Justice: Disputing Educational Discrimination in the New Civil Rights Era, an analysis of her own postdoctoral experience investigating and addressing claims of educational discrimination in the U.S. Department of Education's Office for Civil Rights. This book explores contemporary rhetorical controversies over how, whether, and when to make opportunity in U.S. schools racially equal. Pollock is also editing the forthcoming Everyday Antiracism: Concrete Ways to Successfully Navigate the Relevance of Race in School, a volume of concrete antiracist strategies for educators written by 100 experts in race and education studies. Finally, Pollock is spearheading an international ethnographic research project, "Global Youth/Global Justice," examining young activists who analyze and address social problems transnationally and across racialized boundaries. Before receiving her M.A. in anthropology and her Ph.D. in anthropology of education from Stanford, Pollock taught high school in California.
 
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