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Thursday, June 23, 2005 http://chronicle.com/daily/2005/06/2005062304n.htm Education Department's Actions Contradict Supreme Court's Rulings on Affirmative Action, Report Says By PETER SCHMIDT The Education Department's Office for Civil Rights has actively discouraged colleges from using race-conscious policies that are both legally permissible and necessary to close the achievement gap between black and white Americans, according to a report set for release today by the NAACP Legal Defense and Educational Fund. The report is being issued on the second anniversary of two landmark decisions by the U.S. Supreme Court on race-conscious admissions policies at the University of Michigan at Ann Arbor. In those rulings, the Supreme Court held that public colleges could give some consideration to applicants' race or ethnicity for the sake of promoting diversity, as long as the colleges treated applicants as individuals. The NAACP fund, a civil-rights group, argues in its report that the Supreme Court's decisions endorsed the use of race in admissions and did not deal with any other aspect of higher-education policy. But, the group says, the rulings are being interpreted by critics of affirmative action and by the Office for Civil Rights as severely restricting the use of race in admissions, outreach, recruitment, financial aid, and other areas. The report notes that organizations opposed to affirmative action have been asking the office, known as OCR, to investigate colleges over their consideration of applicants' race and their operation of programs reserved for minority students. Such groups, the report says, "are trying to achieve through threats and intimidation what they could not achieve through the courts." "Because by law OCR must investigate each and every complaint it receives, the threat to file an OCR complaint can have a chilling effect on an educational institution, even if there is no merit to the complaint," the report says. It adds: "In many instances where OCR has publicly announced an investigation, colleges and universities have decided not to engage in the time-consuming process of responding to an OCR investigation, regardless of the legal merits of their programs." The report alleges that "anti-affirmative-action groups have an inside track at OCR," which has hired staff members from those outside organizations. The report also criticizes the office for focusing its energies on encouraging educational institutions to pursue race-neutral alternatives to affirmative action, even though such policies, in themselves, cannot close the gaps between black and white students in enrollment and graduation rates. Officials at the Office for Civil Rights had not been given copies of the report as of Wednesday and could not be reached for comment. The chief organization that has been filing complaints against colleges with the office, the Center for Equal Opportunity, has argued that many colleges' admissions policies, and all race-exclusive college programs, give more weight to race than the Supreme Court's rulings allow. The Legal Defense Fund plans to post the report on its Web site today.