Secretary of Education Terrel H. Bell has been urged by his top lawyer to lobby Attorney General William French Smith and the White House to use political, rather than legal grounds, as the basis for a rule change that would remove an estimated 1,000 colleges and technical schools from the reach of key civil rights laws.
In a Dec. 2 memo, Department of Education general counsel Daniel Oliver told Bell the Justice Department was refusing on legal grounds to go along with Education's proposed change in defining "federal financial assistance" to colleges.
The change would free schools whose only federal link is the aid their students receive from rules banning discrimination based on race, sex or handicap. An education spokesman said most of the nation's 10,000 institutions of higher education get other federal aid, such as reasearch money, and wouldn't be affected by the proposed change.
Grove City College in Pennsylvania has challenged the regulations in court because it receives only student aid money. Last week Justice lawyers told the U.S. Court of Appeals for the Third Circuit that Smith would make a decision within 10 days. Officials said yesterday no decision has been reached yet.
In the memo, Oliver argued the political advantage from the change would "outweigh the damage the administration might sustain by seeming to pull back on supporting the civil rights of minorities." Civil rights groups reacted angrily when read those views from the leaked memo, saying they represented another example of the Reagan administration's retreat on civil rights issues.
Oliver could not be reached for comment. In the memo, he told Bell that William Bradford Reynolds, head of Justice's civil rights division, thought it was unlikely the department could win in a court challenge of the proposed change. But Oliver added, "He Reynolds and I agree that . . . the issue is primarily a political one and the decision should be made on a strategic/political level."
Oliver, a former editor of National Review magazine, urged Bell to argue that "even if we ultimately lose in court, taking this stand . . . make s a political point concerning the reach of federal jurisdiction, namely that when we aid students, we do not thereby obtain jurisdiction over institutions." In addition, he said, a court defeat might spur Congress to clarify the law.
Oliver even predicted Smith's response. "The attorney general will say that he believes the political risk to be too great in this case and will suggest that we fight on another issue in another place. The question, it seems to me, is where and when.
"Given the tenor of the courts and the current laws and regulations, we will, I suspect, not easily find issues on which we can win, and win without taking a chance of political damage."
Margaret Kohn, an attorney for the National Women's Law Center, said the memo was "outrageous. We have argued all along that the change had no legal support . . . "