Democrats on the Senate education committee had some tough questions Tuesday for President Donald Trump’s picks to head up civil rights and special education policy at the U.S. Department of Education.
Kenneth Marcus, who is currently the head of a Jewish civil rights organization and has been tapped to lead the department’s office for civil rights, and Johnny Collett, the program director for special education at the Council of Chief State School Officers, are likely to be confirmed. But Democrats used the confirmation hearing to air deep concerns about the Trump administration’s record on both civil rights and disabilities issues.
“One of the most appalling ways that President Trump has damaged our country is when it comes to civil rights—and undermining the rights and safety of women, people of color, and people with disabilities,” said Sen. Patty Murray of Washington, the top Democrat on the panel.
Murray said Marcus appears to “share the goal of halting discrimination on the basis of race ethnicity or religion” particularily on college campuses. But she worries about his ability to stand up to Trump and to U.S. Secretary of Education Betsy DeVos.
And she expressed qualms about Collett’s record as head of special education in Kentucky. She noted that the state was criticized for allowing frequent use of seclusion and restraint in schools, which are used to a disproportionate degree on students with disabilities.
“Only after public outcry and work from the [state’s] protection and advocacy agency did Kentucky take steps to address this,” Murray said. “Additionally—you told my staff you support Secretary DeVos’ privatization agenda, which includes $20 billion school voucher proposal. Voucher programs do not support all of the needs of students with disabilities.”
But Sen. Lamar Alexander, R-Tenn., the chairman of the committee, defended both nominees. He said Marcus “has a deep understanding of civil rights issues having founded the Louis D. Brandeis Center for Human Rights and having served as staff director of the U.S. Commission on Civil Rights for four years.” He said he had letters from 10 individuals and organizations supporting Marcus’ nomination. And he said that Collett is “widely supported by the special education community.”
Civil Rights Protections
Marcus served as the acting assistant secretary at the office for civil rights during the George W. Bush administration. During his testimony, he played up his record of looking out for disadvantaged groups of students.
For instance, he noted that during his tenure, OCR issued policy guidance clarifying that Jewish, Sikh, and Muslim students could not be discriminated against on the basis of religion. And he worked to make sure that racial and ethnic minorities and English-language learners were not placed in special education programs that didn’t meet their needs.
Marcus also did not distance himself from any of the president’s past statements about women’s and civil rights when questioned about them.
If confirmed, Marcus said he would, “work to strengthen OCR, to preserve civil rights, to seek equal justice for all; to respect the rule of law; and to promote public confidence.”
Under the Obama administration, OCR opened record numbers of investigations, and issued guidance on everything from resource equity to discipline disparity. But the Trump administration has contemplated rolling back some of those directives, in light of criticism from school officials who say they are well-intentioned, but unworkable. And, under the Trump administration, OCR has shifted from away from examining each civil rights complaint for evidence of systemic discrimination.
Sen. Maggie Hassan, D-N.H., asked Marcus about that change. He said that there is a role for both systemic and individual investigations, and that the decision on which way to go needs to be made on a case-by-case basis.
In response to a question from Sen. Chris Murphy, D-Conn., Marcus said that if a school disciplines African-American students more harshly than their white peers, it could be grounds for a complaint. Marcus’ comments are particularly key here because the Trump administration is considering scaling back or reworking Obama-era guidance aimed at ending discipline disparities.
“If even one child is punished because of their race, or punished worse because of their race” that would be “a significant concern,” Marcus said. But he said that each complaint needs to be investigated individually and fairly to make sure there is really discrimination going on, as opposed to say, paperwork problems. (More on the discipline issue from Evie Blad here.)
“All of the cases before OCR should be treated the same way,” Marcus said.
Murphy also asked Marcus if he intended to continue with the Civil Rights Data Collection as it functions now. Marcus said he doesn’t have any plans to change the CRDC, but that he would be open to suggestion for improving it.
And Marcus told Sen. Al Franken, D-Minn., he thinks cases of discrimination against LGBT students should be considered on a case-by-case basis.
The Trump administration has moved to dial back guidance put forth by the Education Department on Title IX, as it relates to campus sexual assault. The Obama administration called for colleges to use a “more likely than not” standard when considering sexual assault complaints, rather than the tougher, criminal standard of innocent until proven guilty, beyond a reasonable doubt. In temporary guidance, the Trump administration has said colleges could also use a “convincing evidence” standard in trying to determine whether a sexual assault had taken place.
Murray asked Marcus if he thought the changes to that guidance were appropriate. He said they were. Murray made it clear that she was disappointed to hear that. In her view, the guidance has helped encourage survivors of campus sexual assault to come forward.
Special Education Concerns
Franken noted that students with disabilities who use vouchers to attend private school waive individual protections under the Individuals with Disabilities Education Act. He said parents don’t necessarily always realize that’s the case, and asked Collett how he would make sure parents are informed.
Collett said that, if confirmed, he would work with DeVos and her team to address the issue. That answer didn’t appear to satisfy Franken, who wanted Collett to pledge to do everything he can to make sure every parent is aware of their rights.
Murray asked Collett whether he would stand up to DeVos if she offered states waivers from a requirement in the Every Student Succeeds Act that no more than 1 percent of students, or 10 percent of students in special education, be allowed to use alternative assessments for students in special education. Collett said only that he would push for high expectations for students in special education.
And Hassan asked a very in-the-weeds ESSA question: Should states be allowed to use so-called “super-subgroups” which combine students in special education with racial minorities, English-language learners, and other groups of students?
Collett said that DeVos is committed to approving ESSA plans that comply with the law. Some states, including Tennessee, have had their ESSA plans approved even if they use super-subgroups—but some Democrats argue that isn’t allowed under ESSA.
Sen. Susan Collins, R-Maine, asked Collett if he thought that the federal government should cover the share of special education costs. Collett said he is grateful to teachers and administrators who are doing the best they can with the resources they have. He was cut off before he could give a more complete answer.
The confirmation hearing isn’t the only action that Congress will take this week on nominations. On Thursday, the committee will vote on two other nominations: Mick Zais, to be deputy secretary of education, and Jim Blew, to be the assistant secretary for planning, evaluation, and policy analysis.
Kenneth Marcus, left, nominated to be the Assistant Secretary for Civil Rights at the Department of Education, is joined by Johnny Collett, center, nominated to be the Assistant Secretary for Special Education and Rehabilitative Services at the Department of Education, and Scott Mugno, right, nominated to head OSHA, during confirmation hearings on Dec. 5 before the U.S. Senate’s committee on Health, Education, Labor and Pensions. --Tasos Katopodis for Education Week