In settling a longstanding desegregation suit against North Carolina state colleges, Reagan administration officials bypassed the attorneys handling the case and accepted a proposal labeled "significantly worse" than plans repeatedly rejected by the Carter administration.
David S. Tatel, who headed the Office of Civil Rights at the then-Department of Health, Education, and Welfare under Carter, said yesterday the three-week-old settlement is worse than proposals he rejected because it lowers the minority enrollment goals for predominantly white schools and eliminates previous promises for priorities at traditionally black colleges.
"This is the first really major action the new administration has taken in the civil rights field, and it shows they're not interested in enforcing the civil rights laws that prohibit segregation in education," Tatel said. "This settlement doesn't read like a desegregation plan. It reads like a joint U.S.-North Carolina defense of everything the system did."
Deputy Attorney General Edward C. Schmults said yesterday he is confident the plan is legal. "This settlement does represent a somewhat different policy direction in the elements of the remedial action," he said. "I don't think it is unexpected someone [Tatel] with different views would criticize it."
Tatel is not alone in his misgivings. The settlement is viewed by several government attorneys as a threat to the government's position in pending higher education suits against Louisiana and Mississippi. And Tatel said it undercut the position of five other southern states who have cooperated with the Department of Education in developing higher education desegregation plans.
Reagan administration lawyers from the Justice and Education departments are to go to court in Raleigh Monday to ask a federal judge to approve the settlement as a consent decree, a form strenuously objected to by past negotiators as taking enforcement powers away from the executive branch agency and handing them to a court. This is what North Carolina officials have sought throughout the negotiations.
Another past objection was North Carolina's failure to eliminate duplicate courses. The intent was to move some courses from white to black colleges, thereby shifting enrollment patterns. The settlement still does not address this issue.
Justice Department civil rights attorneys who were the counsel of record in the Raleigh case were not consulted about the settlement, and thus declined to sign the court papers, sources said. A Civil Division attorney will present the proposal instead.
Schmults said a civil division attorney was selected because he is handling a related case brought by the NAACP. "Our role in the case was to act as lawyers reviewing the agreement for our clients, the Department of Education," he said. "The policy shots were called there."
Another Justice department official said a Civil Division attorney was picked to go to Raleigh to keep the case away from the Civil Rights Division, which some Reagan officials consider wildly liberal. But another attorney familiar with the case disagreed, saying the change wasn't made "because we thought there were subversives in the Civil Rights Division."
Secretary of Education Terrel H. Bell announced the settlement June 20 after a lengthy private negotiations between attorneys for the state and a consultant for the department. The Education lawyers who handled the administrative hearing against the state also were bypassed in the talks."
In announcing the agreement, Bell said he hoped it would offer "incentives rather than coercion" to other states facing administrative sanctions. The state promised in the agreement to begin 29 new, high-demand programns such as computer science, accounting and chemical engineering at its five traditionally black colleges over the next five years.
Some disappointed officials say there is little new in the agreement, however, noting that 27 of the programs were contained in proposals rejected two years ago.
In a letter two years ago to Joseph J. Levin Jr., an attorney for the state, Civil Rights Division attorneys rejected a proposed settlement as "fundamentally unacceptable" because it was a retreat from previous plans.
The letter said that HEW's enforcement of the civil rights laws "would be irreparably undermined if a recipient of funds could routinely bypass statutorily mandated administrative compliance procedures by the expedient of filing a lawsuit and then obtaining a substantive consent decree which would be monitored and enforced by a court.
"We believe that this matter can be settled only by the submission of an acceptable desegregation plan, to be monitored and enforced administratively, with the lawsuit dismissed by consent," the letter said.
Levin responded that his client insisted on a consent decree because "our experience with the administrative process has not been positive. It appeared to us our fortune depended on which policy maker was floating around at the time.
"This sets out in District Court what our obligations are, and shouldn't be the subject of administrative whims," he said. A Justice official noted that the consent decree also would protect the settlement from attacks such as that mounted by the NAACP in federal courts here.
Levin added that the state offered substantial evidence at the administrative hearing to show that the elimination of duplicate programs wasn't feasible. Douglas Bennett, the Education Department's consultant in the case, added, "I personally think that approach is foolish. We took a different tack, creating new programs."
The NAACP Legal Defense Fund will challenge the consent decree's filing, attorney Elliott C. Lichtman said yesterday, by contending that it amounts to "a triple end run" around federal courts in Washington, civil rights laws and the Constitution.