August 16, 2012

Dear Secretary Duncan:

We took seriously your March 2010 statement that the United States Department of Education under your leadership was “going to reinvigorate civil rights enforcement.” But, as my enclosed Huffington Post column points out, your department’s Office for Civil Rights has never found a minority-centric program that is federally-funded and that stereotypes and oftentimes segregates non-whites, and discriminates against whites, it’s disapproved of. Indeed, OCR’s Title VI and Title IX enforcement, over at least the past decade, has been riddled with paternalism and exceptions for such initiatives as a single-sex public school in East Harlem which opened in 1996 (before the changes in Title IX regulations); the City University of New York’s “Black Male Initiative;” and the City of New York’s recent “Young Men’s Initiative” for black and Hispanic males only.

The City University of New York’s Black Male Initiative is one of many similar race and sex-specific (allegedly interventionist) programs underway nationwide at federally-supported colleges and universities, intended to provide black males qua black males with special assistance and separate programming. Not one of these race and gender-specific collegiate efforts—to our knowledge—has been challenged much less KO’d by OCR, even though not one of these programs has met the specific criteria and exacting requirements as either a remedial or affirmative action program, aimed at offsetting and overcoming purposeful or pervasive discrimination based on race and/or gender by the particular institutions of higher education.

When the first all-girls public school in New York City if not the nation since the enactment of Title IX—the Young Women’s Leadership Academy—opened in 1996 (the school was placed in East Harlem), we, along with the National Organization for Women—New York City chapter, and the New York Civil Liberties Union, lodged a timely complaint with the Department of Education’s OCR. The law in 1996 clearly disallowed a singular single-sex public school—but that did not matter to the school’s founders and supporters. Indeed, in 1997, the Office for Civil Rights informed us, and also informed the New York City Board of Education, that the all-girls public school appeared to violate the law. Rather than order the school to be opened to boys, and renamed, as complainants urged (What boy, we argued, would seek to attend a public school which would give him a diploma as evidence that he had graduated from the “Young Women’s Leadership Academy”?) OCR told the Board of Education “that a remedy was possible.” (See The New York Times, September 18, 1997).

OCR’s idea of a “remedy” did not entail opening the school to boys, boys who live in the same distressed community as the girls. Its “remedy” was not to come to any conclusion, not to make a final determination. In fact, OCR stalled, fretted, and delayed enforcement of the law.

OCR then set out to allow (as opposed to approve) the first single-sex public school in New York City since the enactment of Title IX to remain intact, and to remain discriminatory by not taking any action. This inaction on OCR’s part was in the context of every public official in New York City supporting the school—and when officials in the highest echelons of the federal government—declared their open support for single-sex public schools. Former United States Assistant Secretary for Civil Rights Michael Williams went so far as to announce his support for all-male, African American public schools, notwithstanding his responsibilities to enforce Title VI and Title IX.

OCR never decided our 1996 complaint. Instead, under the leadership of Assistant Secretary for Civil Rights Gerald Reynolds the Department of Education sought and got amendments to Title IX, amendments that in its opinion allow in some circumstances single-sex public schools and single-sex programming at federally-supported educational institutions. As your records will indicate, we filed our objections to those proposed amendments to Title IX, by my letter of July 3, 2002 co-signed by (following my signature) Matthea Marquart, the then president of NOW-NYC; Donna Lieberman and Arthur Eisenberg of the NYCLU; Anne Conners, the former president of NOW-NYC; and Norman Siegel, the former executive director of the NYCLU. In our letter we cautioned about educational harms to children of single-sex public elementary and secondary schools and classes:

“When the government blocks a child’s enrollment at a public school solely on the basis of gender, such state action is injurious to the children of both sexes, because it communicates to the children and to the society at large that the state believes that there are intrinsic differences between boys and girls requiring separate and unequal treatment. Stated simply, such separation and disparate treatment reinforces offensive and debilitating stereotypes about boys and girls.”

Recent studies have underscored and confirmed our warnings about the educational harms of government schools ratifying sex stereotypes—especially in the context of race, when governmental educational officials place such schools in inner-city (minority) neighborhoods.

Now, at the direction of President Obama—with your open support and endorsement—the United States Department of Education is establishing a black section at DOE. It is doing so in the guise of implementing a White House Initiative to promote “educational excellence for African American” students. This initiative, according to the President’s Executive Order, is to “complement” his previous directive to enhance historically black colleges and universities rather than transforming the HBCUs into non-racially-identifiable institutions of higher learning. To say the least, and the obvious, we saw coming this separatist approach to the education of minority group children.

When this ethnic separatism is reinforced or done at the behest and with the blessing of governmental officials—we are witnessing the functional repeal of the Brown v. Board of Education mandate for the desegregation of our public schools. The President and you are moving in tandem, it seems to us, toward fostering racial identity, reinforcing racial separatism, and pursuing a separate and unequal enforcement of our civil rights laws. Having separate desks or separate doors at the United States Department of Education for Blacks—and for Asians—and for Hispanics—is a deliberate course toward ethnic polarization and for making insupportable and toxic racial and ethnic distinctions and classifications in educational policy and programming.

In stark and plain language, let me say that we do not consider your track record in terms of either supporting or blazing a disreputable separatist track at Education as at all consonant with your promise to “reinvigorate civil rights enforcement.”

It is next to impossible to understand much less accept OCR’s lax and differential enforcement of the civil rights laws especially when OCR violates its own guidelines for making timely decisions, for starting and completing investigations of recipients of federal funding alleged to be making race-based decisions in their programs. OCR should be alert enough to investigate on its own programs that brag they are making racial classifications and stereotyping and excluding from equal participation persons on the basis of skin color and/or gender. But when citizens and prominent civil rights organizations file with OCR complaints of discrimination based on race and/or sex it is unconscionable that OCR would intentionally or unintentionally, wittingly or unwittingly sidestep and delay action on the complaints.

We are frustrated when OCR rather than deciding complaints on the basis of legal standards it initiates efforts to change the standards and the regulations so as to favor and appease politically-wired entities and powerful and wealthy individuals, such as those who insisted on an all-girls school in East Harlem and the politicians and elected officials who brought pressure on OCR not to find the school in violation of federal civil rights laws. It is not possible for there to be confidence in the rule of law among the citizenry in the circumstances when government plays favorites, based on race or political correctness or when it acts paternalistically and under the conditions of forever shifting, unprincipled administrative decision making at OCR.

In summary:

· * We brought our complaint against the Young Women’s Leadership Academy of East Harlem in 1996; that complaint, after some 16 years, was never decided by OCR.

· * On July 27, 2006, OCR acknowledged and gave a Complaint Number (02-06-2123) to our allegations that the City University of New York and several of its colleges were operating its “Black Male Initiative” in ways that stereotyped, separated and provided to black males only (including running a separate class for black men at Medgar Evers College, taught by the black male president of Medgar Evers College) and also discriminated against whites and other non-blacks, and discriminated against all female (although similarly qualified and at risk) students at CUNY who could not enroll or participate and benefit from the special services, academic and financial, provided black male students. OCR did not take any action on that urgent complaint. It continues to assert that it is investigating. Some six years later, OCR has still not decided that complaint of discrimination.

* Earlier this year, we asked OCR to probe Mayor Bloomberg’s and the City of New York’s “Young Men’s Initiative” (YMI). YMI, according to Mayor Bloomberg and the literature and public information about the City’s “Young Men’s Initiative” is for black and Hispanic young males only—providing black and Hispanic males—but no women, and no whites or Asians—with financial and educational and scholarship support and career counseling and other ancillary educational and compensatory special services. Despite this discriminatory purpose—and resolve of the City of New York (a recipient of federal funding) to specially and differentially treat black and Hispanic males—labeling them as “at risk” because of their race and sex—neither the United States Justice Department nor the Office for Civil Rights of the United States Department of Education is at all interested in probing this race-based and gender-specific discrimination.

I invite your response.

Given your past assurances and promise of vigorous civil rights enforcement, I am baffled by this stultifying record of inaction on OCR’s part, and puzzled as well by your own unflagging support of governmental efforts that stereotype, stigmatize and separate our citizenry and students on the flimsy basis of their skin color and/or gender, policies and practices which effectively polarize our society and create separate doors and offices at Education, the very department that is supposed to stand for equal opportunity, equal access, and equal law enforcement.

I look forward to receiving your response.

With best wishes, I am

Sincerely yours,

Michael Meyers

Michael Meyers
Executive Director

Cc: Assistant Secretary Russlynn Ali