Every Student Succeeds Act

Hearing Puts Civil Rights, Special Education Nominees on Hot Seat

By Alyson Klein & Christina A. Samuels — December 12, 2017 4 min read
Kenneth Marcus, the pick to lead the U.S. Department of Education’s office for civil rights, appears at a Senate confirmation hearing.
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Democrats on the Senate education committee had some tough questions for President Donald Trump’s picks to head up civil rights and special education policy at the U.S. Department of Education as the members vetted them for confirmation.

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 Dec. 5 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 state, 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,” particularly 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.

Johnny Collett, the nominee to head up federal special education programs, appears at a Senate confirmation hearing.

“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 a $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 President George W. Bush’s 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 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.

But Marcus also did not distance himself from any of the president’s past statements about women’s rights 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 Trump administration, OCR has shifted 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, that could be grounds for a complaint. Marcus’ comments are particularly relevant now 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.

Special Education Questions

Murray asked Collett about disproportionality in identifying minorities for special education, placing them in restrictive settings, or disciplining them. The Education Department is considering delaying a new rule that would require states to take a stricter approach in evaluating whether their districts are disproportionate in those areas.

“Are you going to fight rolling that back?” Murray asked.

“I will uphold the protections in IDEA,” Collett said, adding that it would be inappropriate for him to comment on the Education Department’s actions if they’re related to Trump administration efforts to cut agency regulations. (The Education Department set off a mini-furor in October after rescinding older guidance.)

“I would find it appalling if after 15 years, we delay it,” said Murray.

She continued with another point: The Every Student Succeeds Act states that no more than 1 percent of students, equivalent to about 10 percent of students in special education, be allowed to use alternate assessments. These tests are intended for students with the “most significant” cognitive disabilities. The concern among some advocates is that loosening this rule means more students with disabilities will be shifted to less-rigorous coursework, even if they could tackle grade-level content with appropriate supports.

States are asking for waivers from this 1 percent rule, Murray noted. “Will you commit to standing up to the secretary and telling her that waiving this requirement will lower expectations and hurt the future of these children?” Murray asked.

Collett pivoted off that question. “I talk every day about having high expectations and ensuring appropriate supports for each child, and that includes children with significant cognitive disabilities,” he said.

A version of this article appeared in the December 13, 2017 edition of Education Week as Civil Rights, Spec. Ed. Picks on Hot Seat

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