[Senate Hearing 107-305]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 107-305
 
                               NOMINATION
=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

 GERALD A. REYNOLDS, OF MISSOURI, TO BE ASSISTANT SECRETARY FOR CIVIL 
                                 RIGHTS
                               __________

                            FEBRUARY 6, 2002
                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions



                     U.S. GOVERNMENT PRINTING OFFICE
77-980                       WASHINGTON : 2002
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
TOM HARKIN, Iowa                     BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             PAT ROBERTS, Kansas
JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio

           J. Michael Myers, Staff Director and Chief Counsel

             Townsend Lange McNitt, Minority Staff Director

                                  (ii)

  




                            C O N T E N T S

                               __________

                               STATEMENTS

                       Tuesday, February 26, 2002

                                                                   Page
Jeffords, Hon. James M., a U.S. Senator from the State of Vermont     1
Bond, Hon. Christopher S., a U.S. Senator from the State of 
  Missouri.......................................................     3
Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire.     4
Reynolds, Gerald A., nominated to be Assistant Secretary, Office 
  of Civil Rights, Washington, DC................................     5
    Prepared statement...........................................    27

                                 (iii)

  


                               NOMINATION

                              ----------                              


                       TUESDAY, FEBRUARY 26, 2002

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:45 p.m., in 
room SD-430, Dirksen Senate Office Building, Senator Jeffords 
presiding.
    Present: Senators Kennedy, Jeffords, Wellstone, Reed, 
Murray, Gregg, and Sessions.

                 Opening Statement of Senator Jeffords

    Senator Jeffords. [presiding]. The committee will come to 
order. I have been asked to start the hearing. Senator Kennedy 
will be here shortly, but I believe that it is appropriate that 
we move on.
    As everyone knows, this is the hearing on the committee's 
obligation to ensure that every person who comes into a 
position of importance has been examined, to the extent that we 
can fully understand the views of the individual and their 
appropriateness for accepting the position.
    We have, today, the hearing of Gerald A. Reynolds before 
this committee. Mr. Reynolds, we are pleased to have you with 
us. I know you have your family with you.
    Mr. Reynolds. Yes, I do.
    Senator Jeffords. Would you like to introduce them for 
everybody.
    Mr. Reynolds. Yes. First, I would like to point out my 
lovely wife, and the noise-maker is my son, Ellison. 
[Laughter.] Unfortunately, I think that he is going to be 
somewhat disruptive, so we will probably have to ship him out 
sooner or later, but this is my daughter, Emma Marie.
    Senator Jeffords. I am pleased to meet you.
    Senator Wellstone. And she is going to be perfect, I can 
tell. [Laughter.]
    Mr. Reynolds. Yes. She is 7 years old. This is my mother, 
Emma; my father, Arthur; my mother-in-law, Janet Marie. Who 
else do we have here? Oh, I almost forgot about you, my step-
son, Ghani; also, the Key family over here; Aunt Jane, Uncle 
Man, Ray, Larry.
    Senator Jeffords. Wow. OK. [Laughter.]
    Mr. Reynolds. You asked. We have the Ethridge family in the 
back on the wall there. I neglected to reserve a seat for them. 
I apologize, Bill. I am sure that I have forgotten some other 
people, and I will hear about it later. Oh, Tony John, Bruce 
Anderson, Angie. And since we are starting late, I will cut 
this off here. [Laughter.]
    Senator Jeffords. You certainly have shown your energy in 
your ability to get people together. [Laughter.]
    Before we begin I have a statement from Senator Kennedy.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    On behalf of the Committee, I welcome Gerald Reynolds and 
his family. Senator Gregg and I will make opening statements, 
and after hearing from the nominee we will proceed to 
questions.
    The Assistant Secretary for the Office of Civil Rights is 
one of the key leadership positions in the Department of 
Education. Many of the most complex and important legal and 
policy matters are handled within the Office of Civil Rights. 
Whether its assessing the validity of the testing required 
under the new education bill or enforcing an array of civil 
rights laws like Title VI, Title IX, Individuals with 
Disabilities in Education Act, and the Rehabilitation Act, the 
Office of Civil Rights is on the front lines.
    After reviewing Mr. Reynolds' record, I was struck by his 
lack of education policy experience and his longstanding 
hostility to basic civil rights laws @ which together raise 
legitimate questions about Mr. Reynolds' qualifications for the 
job and his commitment to enforcing and defending basic civil 
rights protections. These concerns are shared by a broad 
coalition of civil rights, womens', education, and disability 
groups who oppose his nomination.
    I also have concerns about whether Mr. Reynolds has the 
temperament for this important position. Many of his writings 
are filled with inflammatory rhetoric. And his testimony at 
Bill Lann Lee's confirmation hearing was deeply troubling. Here 
is what Mr. Reynolds said about Mr. Lee:
    ``If confirmed as assistant attorney general [for civil 
rights], Mr. Lee's background suggests that no democratic 
principle, controlling legal authority, nor legal standard will 
prevent him from furthering his particular ideological agenda . 
. . Mr. Lee's conduct over a twenty-year period suggests that 
he has adopted the late Malcolm X's phrase: By any means 
necessary''
    Ideological disagreements on issues are an important and 
necessary part of the confirmation process, but there is 
absolutely no place for the kind of merit less character 
assassination that Mr. Lee was subjected to by Mr. Reynolds.
    Although I recognize that we will not agree on every issue, 
we do expect the Assistant Secretary for the Office of Civil 
Rights to come to the position with a sense of fairness, a firm 
understanding of education policy issues, and a genuine 
commitment to continuing the progress on civil rights that has 
been one of the nation's greatest achievements in recent 
decades. Now is no time for on the job training or turn back 
the clock on the progress we've made on civil rights.
    Senator Jeffords. Senator, do you desire to have a 
statement?

  STATEMENT OF HON. CHRISTOPHER BOND, A U.S. SENATOR FROM THE 
                       STATE OF MISSOURI

    Senator Bond. Mr. Chairman, thank you very much. If it is 
appropriate, I would like to address Mr. Reynolds' 
qualifications to you and the members of the committee and join 
in welcoming the largest delegation of Missourians I have seen 
this month. Needless to say, we in Missouri were very pleased 
and honored when, on September 25th, the President formally 
nominated Gerald Reynolds to be the Assistant Secretary for 
Civil Rights at the Department of Education. It is my honor and 
privilege to welcome Jerry Reynolds to our committee today.
    I had the pleasure of meeting with him in October, and in 
that meeting he made it clear that he shares the President's 
commitment to closing the achievement gap and to providing 
every child in America access to a quality education. He is a 
skilled attorney who understands the fundamental role that the 
Office of Civil Rights plays in meeting those goals.
    Jerry is a resident of Kansas City, MO, a top attorney for 
Kansas City Power & Light, our large public utility. His family 
is quite involved in our community. His 7-year-old attends a 
charter school in Kansas City, and his wife is president of the 
Parents Association, in which Jerry is also an active 
participant.
    He has played a meaningful role in making Kansas City a 
better place in a number of ways. He's worked with KCP&L to 
strengthen the company's diversity efforts. He is a member of 
the Hyde Park Association, a neighborhood association dedicated 
to improving and preserving historic Hyde Park in Kansas City.
    I also think he has the experience and the qualifications 
necessary to be an effective Assistant Secretary for Civil 
Rights. He has practiced law in both the corporate setting for 
KCP&L, as well as in a private law firm as a litigator. He has 
worked on education and civil rights issues for two Washington 
public policy organizations. As president of the Center for New 
Black Leadership, the CNBL, he placed a heavy emphasis on 
education policy. In fact, while at CNBL he spent half of his 
time on education issues.
    He has a strong educational background as well, a graduate 
of Boston University School of Law. He served as an editor for 
the American Journal of Law and Medicine. His undergraduate 
degree is from the City University of New York, at York 
College. He grew up in South Bronx and Flushing, Queens, the 
son of a retired New York City police officer and attended 
public elementary and secondary schools there.
    As I said before, he is a qualified and skilled attorney, 
with a longstanding interest in education and commitment to 
improving opportunities for America's students. He shares the 
committee's commitment to disadvantaged and minority children 
and understands the role the Office of Civil Rights plays in 
addressing those goals. He will be a key player on the team, 
whose goal is ``No Child Left Behind.''
    While he was president of CNBL, he served as an advocate 
for community-based affirmative action programs that promote 
economic development of urban communities, provides students 
with improved test scores, and enhance employment skills when 
young people enter the workforce. He will seek to promote 
affirmative action programs that are consistent with the U.S. 
Constitution and achieve the critical goal of affirmative 
access for all Americans.
    Jerry told me supports Title IX. Several women in his 
family participate in athletics and therefore benefit from 
Title IX. His aunt, Theresa Wallace, was co-captain of a 
championship collegiate basketball team in 1982, the Georgia 
Southern Ladies Eagles, won the Southern Region.
    The Office of Civil Rights, one of the leading civil rights 
enforcement agencies in the Government and one of the largest 
offices within the Department of Education, has now been 
without an Assistant Secretary for a year. Because of the needs 
of the Department for leadership and because of Mr. Reynolds' 
demonstrated skills and commitment to serve in this important 
post, I strongly urge the committee to take swift and favorable 
action on his nomination.
    Senator Jeffords. Senator Gregg?

                   Opening Statement of Senator Gregg

    Senator Gregg. I thank Senator Bond for his introduction, 
Mr. Reynolds, and it is nice that you brought your family. I 
think that is excellent. They seem like quite a group here to 
support you.
    I appreciate Senator Kennedy scheduling this hearing, 
although I wish it had been more prompt. As I understand, it 
has been almost 7 months since the administration sent your 
nomination up and almost 5 months since this committee has had 
your papers. So I do hope, as Senator Bond has mentioned, that 
we move promptly to your confirmation.
    You bring to this position, the civil rights position, the 
type of background and strength which this position needs, 
which is a commitment, obviously, to fairness in our society, 
an understanding of the important role that things like 
affirmative action play and Title IX play, but more importantly 
the fact that we are in a transition as a society, constantly 
growing as a society and that we have to adjust to that 
transition and be sure that our laws today are applicable to 
our time today.
    You have been an innovative thinker in a variety of areas 
and an advocate, and that is something I think we need in this 
position in order to make sure that people get fair play when 
they deal with the Department of Education and programs the 
Department of Education has jurisdiction over.
    I know that you have got a lot of people who support you, 
and I wish to submit to the record a series of letters of 
endorsement on your behalf.
    Senator Jeffords. They will be made a part of the record.
    [The letters of endorsement were not received in time for 
printing, however they will be retained in the files of the 
committee.]
    Senator Gregg. Thank you, Mr. Chairman.
    We look forward to hearing your thoughts and ideas, and 
rather than listening to us, we would like to listen to you.
    Senator Jeffords. You are on. Please proceed.
    Senator Bond. If you will excuse me, I have gotten a call.
    Senator Jeffords. That is fine. Thank you.
    Senator Bond. Thank you, Mr. Chairman, Senator Gregg.
    Senator Jeffords. It is a pleasure to have you before the 
committee. I know we had an opportunity to meet together, and I 
therefore am pleased to have you here for an opportunity to be 
able to express yourself on what you intend to do and why you 
should be allowed to do what you want to do, so please proceed.

  STATEMENT OF GERALD A. REYNOLDS, NOMINATED TO BE ASSISTANT 
       SECRETARY, OFFICE OF CIVIL RIGHTS, WASHINGTON, DC

    Mr. Reynolds. Thank you, Senator Jeffords.
    First of all, I would like to thank my home State Senator, 
Senator Bond, for that generous introduction. Senator Jeffords, 
Senator Gregg, and members of the committee, thank you for 
providing me with this opportunity to discuss my views on civil 
rights enforcement and educational issues. I am truly honored 
and humbled to be here.
    I would also like to thank President Bush for honoring me 
with his trust and his confidence. He has given me an 
extraordinary opportunity to serve my country as guardian for 
civil rights for students across the Nation.
    I would also like to thank my family. It is their guidance, 
support and love that has made all of my accomplishments 
possible.
    I have provided a brief introduction, but if you do not 
mind, I would like to stay on my family a bit because they 
inform my views on civil rights, the lives that they have led 
in the South and in the North. Their experiences have shaped my 
views.
    I have introduced my father and mother, Arthur Reynolds and 
Emma Reynolds Simon. They have been the greatest influences in 
my life. My father was raised in Jackson, SC, in the 1940s. 
Back then, blacks did not have much in the way of educational 
opportunities, but my father had a thirst for knowledge and a 
devotion to reading, a level of learning that he passed on to 
me. He made the most of what was available. I am proud to say 
that he eventually became a New York City police officer. He 
retired from Harlem's 28th precinct.
    My mother, too, has overcome large hurdles in her life. The 
manner in which she has conducted her life has taught me the 
value of fighting for my beliefs.
    My mother-in-law, Janet Marie Sloan, she was a retired 
nurse. Now she is a world-class grandmother.
    Now, after my parents left the South, they initially 
settled in the South Bronx near my Aunt Jane and Uncle Man. 
They are over there. Aunt Jane, and Uncle Man, and two of her 
sons, James and Larry Key, are here today. James now works for 
the U.S. Customs Service. Prior to September 11th, he was 
stationed in lower Manhattan. On September 11th, he risked his 
life to protect others. In fact, the Customs Service has 
recognized James as a hero for his actions at 6 World Trade 
Center on September 11th. It has been said that a man realizes 
his liberty by sacrificing his private interests for the wider 
community. James is living proof of that, and I am honored that 
he is here today to support me.
    Now, my wife. She is the most distinguished guest here. 
Without her, I would not be here today. She puts up with me, 
she keeps my life in order, and as I said, without her help and 
support, I would not be here. She is a former Defense analyst, 
but she is now the chief executive officer of the Reynolds 
household. As well, she is the president of the Parents 
Association for Academie Lafayette, my daughter's school.
    My children, you notice my noisy son, and I have introduced 
my daughter.
    Senator Jeffords, Senators, when I think about my family, 
when I look at my children, it reminds me of why I am eager to 
serve as Assistant Secretary in the Department of Education's 
Office for Civil Rights. Quite simply, the Office protects our 
Nation's students, whether they are in first grade or graduate 
school, against the evils of invidious discrimination. Students 
have these protections because of the great works of civil 
rights organizations and many members of Congress.
    These individuals and organizations played key roles in the 
enactment of civil rights legislation. Those laws marked a 
turning point in the life of the country and, more personally, 
a turning point in the lives of members of my family.
    Senator Jeffords, Senators, Senator Kennedy recently joined 
with President Bush and Secretary Paige in providing leadership 
and the vision that led to the No Child Left Behind Act. The No 
Child Left Behind Act is the most sweeping reform of grade 
school education in the last 30 years. As President Bush said 
at the signing ceremony, bipartisan leadership demonstrates 
that honorable people can disagree, yet compromise, and come 
together for the good of our Nation's children. With this 
body's advice and consent, it is in that spirit that I intend 
to take up the task that President Bush assigned to me.
    My passion for education comes not only from the influence 
of my family and my own life experiences, but also from my 
desire to see that others are afforded the same kinds of 
opportunities that I have enjoyed. To limit an individual's 
education is to limit his freedom. As president of the Center 
for New Black Leadership, I focus on the significant 
achievement gap between white students and black. I came to the 
conclusion that we need to expand the concept of civil rights 
so that it includes improving the quality of education for 
America's disadvantaged students.
    My work at the Center for New Black Leadership led me to 
conclude that education is the answer to many civil rights 
issues. Education gives poor children the skills that they need 
to succeed in the marketplace. A sound education is the 
fastest, and sometimes the only, way out of poverty.
    At the Center, I spent most of my time reviewing research 
literature, meeting with individuals who run schools and 
promoting education reform. I also learned a great deal from a 
broad range of experienced education reformers, from Republican 
Congressman J.C. Watts to Democratic former mayor of Baltimore, 
Kurt Schmoke, and former Congressman Floyd Flake.
    After leaving the Center, I transitioned from being a 
public policy advocate to being a regulatory attorney. I 
understand quite clearly that those are two quite different 
roles. If I have the privilege of being confirmed, I am sure 
that the experience that I have had in these two distinct 
areas, as a public policy advocate and as an attorney advising 
a client, will make me a more effective law-enforcement 
official in the Office for Civil Rights.
    If confirmed, my primary mission as the head of the Office 
for Civil Rights will be to uphold the Constitution and enforce 
Federal civil rights laws. One of the most significant and, in 
my mind, successful civil rights laws has been Title IX, which 
prohibits schools that receive Federal funds from 
discriminating on the basis of sex.
    Before Title IX, schools and universities could, and did, 
treat men better than women. Many high schools routinely 
shepherded girls into courses such as home economics and 
typing, while preparing boys for college and professional 
schools. This is inherently unfair. A system that distributes 
benefits and burdens on the basis of an individual's sex is a 
system that curtails freedom of choice.
    If confirmed, another one of my important duties will be to 
ensure that students with disabilities receive appropriate 
services so that they can achieve academic excellence. If we 
fail to help students with disabilities achieve their potential 
in our schools, we will be responsible for limiting their 
opportunities in life. I, for one, do not want that 
responsibility.
    Recently, I was horrified to learn how Freddy Ramirez was 
treated by a DC. public school. Freddy was a 9-year-old boy who 
was confined to a wheelchair. Because his elementary school had 
no accessible bathrooms, this young boy had to park his 
wheelchair at the door of the bathroom and then crawl across 
the filthy floor to reach a stall. This went on for 18 months 
until the school finally took action. These things must never 
be allowed. It is humiliating, and degrading and unworthy of a 
nation committed to civic equality. And more simply, how is 
this young boy supposed to learn effectively in this type of 
environment?
    Congress enacted two landmark statutes, section 504 of the 
Rehabilitation Act and Title II of the Americans with 
Disabilities Act. I am strongly committed to these laws and to 
the President's New Freedom Initiative. In implementing the 
initiative, President Bush has instructed his administration to 
fully enforce civil rights laws protecting people with 
disabilities.
    There is much work to do. Over 60 percent of all complaints 
filed with OCR concern disability-based discrimination. If 
confirmed, I will obey the President's directive and enforce 
these statutes to the letter so that kids like Freddy need face 
only the challenges of teachers and tests, not of getting to a 
bathroom stall.
    If confirmed, I will vigorously enforce Title VI of the 
Civil Rights Act of 1964, which made the promise of the 
Fourteenth Amendment a reality, prohibiting discrimination 
based on race, color and national origin. The backlash against 
innocent Muslim and Arab students demonstrates the continued 
need for vigorous enforcement of our Nation's civil rights 
laws.
    I join President Bush, Secretary Paige, and members of the 
Senate in their concern that the horrors of September 11th do 
not lead to mistreatment of Arab Americans. Racial 
discrimination and harassment have no place in our schools.
    While president of the Center for New Black Leadership, I 
supported affirmative action programs that promoted economic 
development in communities, that provided quality education for 
disadvantaged students and that enhance employment skills for 
young people entering the workforce.
    Along with President Bush and Secretary Paige, I support 
``affirmative access'' for all Americans. If confirmed, I will 
seek to promote affirmative action programs that are consistent 
with the Constitution and that achieve the critical goal of 
leaving no child behind.
    Senators, I want to thank you for providing me with this 
opportunity to speak with you today. I am honored that 
President Bush has nominated me to serve as Assistant Secretary 
for Civil Rights. If confirmed, I will uphold the Constitution 
and vigorously enforce the Nation's civil rights laws. I am 
eager to begin that work, with the Senate's consent, but for 
now, I look forward to your questions.
    Thank you.
    Senator Jeffords. Thank you for an excellent statement.
    I would now like to ask some questions of you and start off 
with this one: What are your thoughts on discrimination issues 
facing students with disabilities? I know you went over this, 
but I would like you to concentrate on it again, in particular, 
with regard to section 504 of the Rehabilitation Act, the 
Americans with Disabilities Act, in other words IDEA, and how 
will you enforce both public and private schools' compliance 
with 504 of the Rehabilitation Act, the Americans with 
Disabilities Act and, most importantly, IDEA?
    Mr. Reynolds. Thank you, Senator.
    That question is extremely important. As I mentioned in my 
statement, 60 percent of the cases at OCR involve disability-
based discrimination. It is unacceptable. Because you have the 
misfortune of being disabled does not mean that you should be 
treated as a second-class citizen. We have a situation where 70 
percent of disabled people are unemployed. I think that the 
reason that we have this high unemployment rate is that we have 
done a poor job of educating many of our disabled students. A 
sound education is the gateway to employment, and unless we do 
a better job, this horrendous unemployment rate is going to 
stay where it is today.
    I think that there are many things that we can do at the 
Office for Civil Rights. We have the two statutes that you 
referenced, in addition to that, the Freedom Initiative that 
President Bush has promulgated.
    It is important that schools across the country realize 
that they have a statutory obligation, and in my opinion, an 
ethical and a moral obligation to ensure that students with 
disabilities receive a free and appropriate education. And if I 
am confirmed, I will do everything within my power to ensure 
that the civil rights statutes are fully enforced so that they 
protect disabled students.
    Senator Jeffords. I would like to pursue this area.
    What are some of the civil rights problems students in this 
Nation are facing today, and how do you intend to eradicate 
these problems to ensure equal access to education of all 
students, and are there any proactive measures the Office of 
Civil Rights should take to ensure equal access?
    Mr. Reynolds. Senator, there are many problems that we will 
have to confront, that we are confronting today. Unfortunately, 
racism and discrimination are still with us, discrimination 
based on age, based on sex, based on disability, that is still 
with us.
    Some people may say that I have a dark view of man, but I 
think that these prejudices will stay with us, and that is why 
I believe that it is important that we realize that these 
enforcement actions, they are with us for the long haul. We 
must vigorously enforce all laws to ensure that we protect our 
students. I think that we all agree that this should not 
happen, at least most of us, but there are a handful of people 
who feel otherwise. And I think that it is the Government's 
responsibility, when people discriminate based on invidious 
grounds, it is the Government's responsibility to go in there 
and ensure that it does not happen.
    Senator Jeffords. The Office of Civil Rights has the 
authority to withhold funding from institutions that violate 
Title IX. What remedial and affirmative actions would you deem 
appropriate to remedy discrimination on the basis of sex?
    Mr. Reynolds. As I said in my opening statement, to 
distribute benefits and burdens on the basis of sex, that is 
the antithesis of freedom of choice. I think that women/girls 
should have the same opportunities as men and boys. I think 
that it is important that we have vigorous enforcement, and 
that includes taking affirmative steps to remedy any type of 
discriminatory conduct, that includes when there has been a 
finding of discrimination, that includes the use of racial 
classifications.
    And those events where there has not been a finding of 
discrimination, I think that schools are free to take 
affirmative steps to improve access, to provide more 
opportunities to women and men.
    Senator Jeffords. There has been some discussion regarding 
your views on the disparate impact theory of the civil rights 
laws. Could you please clarify your views on this subject. It 
is a little complicated one, I know, but go ahead.
    Mr. Reynolds. Thank you, Senator. This is a wonderful 
opportunity. I have been cooped up for quite some time, unable 
to address these issues. So thank you for providing me with 
this opportunity.
    The disparate impact theory, it is a very powerful tool for 
smoking out discrimination. It permits you to use statistical 
analysis to draw an inference of discrimination. OCR's 
regulations permit it, and if I am confirmed, we will continue 
to use that powerful tool, as well as all of the other tools 
that we have in our tool kit at the Office of Civil Rights.
    Senator Jeffords. How would you enforce compliance with 
Department regulations which prohibit recipients of Federal 
funds from using criteria which have the effect of subjecting 
individuals to discrimination on the basis of race, sex or 
disability?
    Mr. Reynolds. I will enforce all regulations vigorously. If 
we have a situation where a school has discriminated against a 
study, we are duty bound to use all of the tools in the tool 
kit to ensure that not only do these discriminatory actions 
stop, but that the effects from this discriminatory conduct is 
remedied.
    Senator Jeffords. You have talked about ending racial 
preference programs. How will you enforce antidiscrimination 
laws and regulations in instances where there is a past history 
of discrimination?
    Mr. Reynolds. The U.S. Supreme Court is clear on this 
issue. Where there has been a finding of discrimination, the 
use of racial classifications may be permitted. The standard is 
clear. It is the strict scrutiny standard that was articulated 
in Croson and the Adarand decisions. With that standard, if the 
State can show a compelling interest and also demonstrate that 
the means are narrowly tailored, then the use of a racial 
classification is permitted. That is the law, and that is what 
I will enforce.
    Senator Jeffords. Senator Gregg?
    Senator Gregg. Thank you, Mr. Chairman. I think those 
questions, first, they were an excellent series of questions, 
Mr. Chairman. I believe they addressed a number of issues which 
have been raised, and I thought the responses were even better.
    I also note that I believe that Secretary Paige has sent us 
a response to a letter which you received from Senator Kennedy, 
which outlined a response to a letter which was sent out by the 
Leadership Conference on Civil Rights, which is a very good, 
in-depth explanation of your views in a number of areas, and 
especially the fact that you feel the Conference letter 
regrettably misrepresented your positions and inaccurately 
represented your positions in a variety of ways. So I would ask 
that that response be included in the record.
    Senator Jeffords. Without objection.
    [The letter of Secretary Paige was not received in time for 
printing, however it will be retained in the files of the 
committee.]
    Senator Gregg. We have touched on a number of areas that 
you obviously feel strongly about. I did notice that, and I 
found the statement to be, on its face, a little hard to 
accept, but the letter from the Conference said, ``In addition 
to Mr. Reynolds' all-out opposition to affirmative action, he 
put in direct conflict with carefully crafted policies that the 
Office of Civil Rights is charged with implementing.
    In fact, that is not your position at all, is it?
    Mr. Reynolds. No, it is not. Senator, I found the letter 
curious because my support for affirmative action, it is in my 
writings. Going back as far as, well, when I entered the public 
policy world, when I have discussed affirmative action, I have 
discussed it in various aspects, but it is clear from my 
writings that I support affirmative action policies.
    Now I have made a distinction between affirmative action 
policies that use a racial classification. Even those are 
permitted under a limited set of circumstances; the standard 
that I articulated earlier, the U.S. Supreme Court strict 
scrutiny standard. But I support affirmative action, it is in 
my record, and I am somewhat surprised that someone would make 
the statement that I am an all-out opponent of affirmative 
action.
    Senator Gregg. I noticed that they also said in this 
letter, and I found this to be even more surprising, that ``He 
expressly denied that racism is a barrier to preventing African 
Americans from making progress.'' That is obviously not your 
position. I mean, you have already alluded to that in your 
opening statement, but you might expand on your thoughts in 
that area because, clearly, somebody has misunderstood your 
views.
    Mr. Reynolds. Yes. I wish I had an opportunity to sit down 
with the authors of the letter because my view is clear from my 
writings, it is clear from my debates. I have a view of the 
world that some may view as somewhat dark. I believe that 
people will discriminate. I believe that they will always 
discriminate, and that is why I believe that we will always 
need vigorous enforcement of our civil rights laws.
    Now I have mentioned barriers. In one article, well, 
actually several articles, I talked about the different types 
of barriers that blacks have confronted since we were brought 
here. Up until, gees, 30 years ago, we had a racial caste 
system in large parts of this country. It really did not matter 
how smart you were. It did not matter how industrious you were. 
Your skin color, my son's skin color, would determine his fate.
    Now things have changed. That is not to say, though, that 
discrimination is no longer with us. In that article, I went on 
to talk about some of the current barriers that we are 
confronting. I talked about the poor quality of education in 
many urban centers. I talked about some regulatory barriers 
that make it difficult for black entrepreneurs to open up 
businesses. Here, in Washington, DC., I worked with a gentleman 
by the name of Taliq Gupta, who runs a place where he braids 
hair. They shut him down, and it was not justified. His 
business is thriving now, but that is an example of some of the 
new types of barriers that we must contend with.
    That article in no way states that racism and 
discrimination is no longer with us. As I said earlier, it will 
always be with us. It is just, unfortunately, men will find 
reasons to hate each other.
    Senator Gregg. You raised a really interesting issue which 
is, as we move into this century, what are the barriers which 
are really affecting people as they try to get ahead, and I 
think you are sort of pointing at education as being one of the 
key issues, one of the key areas in your going into the 
Education Department.
    Maybe you could talk a little bit more about that, 
especially our urban school systems, and what is wrong, where 
is the problem. As you see it, how should we address those 
things?
    Mr. Reynolds. Well, I do not believe in magic, but the 
closest thing that we have to magic is education. We could look 
at it from a number of angles. We could look at that unmanned 
drone that we are firing Hellcat missiles into Afghanistan. The 
basis of that is our educational system. But for the human 
capital that we have in this country that is augmented, that is 
nurtured in our educational institutions, we cannot do that.
    Another area, we worry about Social Security. Now I have 
spoken to a number of economists, and the modeling that has 
been done does not assume that the residents of urban 
communities are going to earn high incomes. If we straighten 
out our school systems in urban and rural communities, that 
assumption then becomes inaccurate, and then that worry that we 
have over what to do with Social Security, that problem is 
pushed back a number of years, because the assumption is that 
many minorities in urban communities are not going to earn a 
lot of money.
    We can do something about that because what you earn is 
highly correlated to your education. The more education you 
have, the higher the quality of the education you receive, the 
more, well, the greater the opportunity that you will have to 
earn a high income.
    So, I guess, a part of my approach, I was taught by a 
professor, Professor Rickman at Boston University.
    Senator Gregg. A good school, by the way.
    Mr. Reynolds. Yes, thank you.
    Senator Gregg. A fine institution in a wonderful State. 
[Laughter.]
    Mr. Reynolds. Yes, I have warm feelings for the State of 
Massachusetts.
    He looked at the world, he viewed the world as this 
connected web, and I approach life that way myself. These 
problems are all connected. If we can solve the problems in our 
educational institutions, especially in our urban communities, 
there are so many positive things that will flow.
    Right now we have a very disruptive debate over the 
propriety of racial preferences and higher education. If we 
straighten out our educational system and urban communities, 
that problem goes away. If we can increase the pool of highly 
qualified black applicants, the problem goes away.
    While at the Center for New Black Leadership, one of the 
things I did, I just called around across the country and had 
Stanford 9 test scores sent to me from Detroit, Los Angeles, 
parts of New York, the South Bronx, Bed-Stuy, Washington, DC., 
and it is clear from these tests that we are doing a lousy job. 
We are failing black students across the country.
    So, when I say that we have some additional barriers, some 
new barriers, I am not discounting discrimination. We need to 
vigorously enforce our antidiscrimination laws, but we also 
need to expand the problem because the problem is not merely 
discrimination now. I think that education is a problem in many 
urban communities. I think that we have some regulations that 
prevent black entrepreneurs from opening up businesses. That is 
a problem. So we need to step out of the box. We need to look 
at these problems in a fresh way.
    Thank you for providing me with an opportunity to address 
that issue.
    Senator Gregg. I think that was an excellent answer. I 
think my time is up. I do want to thank you for your 
presentation. I also want to thank your father for his years of 
service in the Police Department in New York City. I had the 
chance to be under his protection when I was in college. That 
was the 28th Harlem District.
    Mr. Reynolds. Yes.
    Senator Jeffords. Well, that is a real credit to him.
    Senator Gregg. He got me through.
    Senator Jeffords. Thank you.
    Senator Wellstone?
    Senator Wellstone. Thank you. First of all, let me thank 
you, Mr. Reynolds for being here.
    When you talked about the whole question of disparate 
impact statement, you cited a law. I wonder what your own view 
is about disparate impact, in terms of how we evaluate laws and 
whether or not they are civil rights violations. Do you, 
yourself, philosophically support this standard?
    Mr. Reynolds. Yes. Senator, I understand why some people 
have some questions. The disparate impact standard, again, it 
is a powerful tool for smoking out discrimination, and I think 
that we should use all of the tools in the toolbox. I think the 
misunderstanding occurred because in an article I discussed the 
misuse of statistical analyses. That is a different kettle of 
fish. There are standards for using statistics. There is a 
standard for properly using the disparate impact standard, and 
again there is no philosophical disagreement. I have no 
philosophical disagreement with using a disparate impact 
standard or any other tool that we have in the tool kit.
    Senator Wellstone. Let me go through maybe an example of 
this whole question of the testing requirements in the 
education bill. If confirmed, what steps will you take to 
ensure that the new testing requirements--and we tried to make 
it as high a quality of testing as possible, in the education 
bill. Remember, we are going to now require that every school 
district test every child Grades 3, 4, 5, 6, 7 and 8--do not 
have a disparate impact on minority students?
    Mr. Reynolds. Well, I congratulate Senator Kennedy and the 
President for coming together and putting political differences 
aside and enacting this historic piece of legislation.
    I think that the testing component of the legislation is 
extremely important. It is a diagnostic tool that will help us 
identify problems. It is important that we catch our problems 
as early as possible and provide students with the help they 
need so that they can excel academically.
    Now, once we fully implement the No Child Left Behind Act, 
and especially the testing component, I suspect that there are 
going to be disparities, statistical disparities on race. I do 
not think I am going out on a limb here. I think that we are 
going to see blacks and Hispanics not doing as well as whites 
and Asians.
    Now I think that if the tests are properly constructed so 
that they measure what is taught in class, then under those 
circumstances, discrimination is probably not implicated. Now I 
hesitate because this type of determination requires all of the 
facts, and you provided me with a hypothetical, but at the end 
of the day, it is going to require a thorough examination of 
all of the facts surrounding a particular instance.
    So I hope I have answered your question.
    Senator Wellstone. Look, I appreciate your frankness. 
Actually, the Office of Civil Rights, under the Clinton 
administration, they issued a guidance, which is exactly what 
is called, for schools on the use of high-stakes testing. I 
guess my understanding is the guidance has been ``archived'' by 
the Department right now.
    So I guess what I want to ask you is what you think about 
the guidance and whether or not you plan on using it to give 
school districts some direction. If done the wrong way, it will 
have a disparate impact. I mean, there is no question about it. 
So my question for you is, number one, why is the guidance 
archived, although that is not your decision; number two, are 
you familiar with it? Do you plan on using it? Do you plan on 
getting it out to school districts so they have some 
information as to how to make sure that we do not have testing 
that has this discriminatory impact?
    Mr. Reynolds. Well, as I mentioned before, I have been 
somewhat, well, I have been holed up in a cocoon, unable to not 
only speak, but also consult with the career staff over at OCR. 
The reasons why it was archived, unfortunately, I do not know. 
Senator, I will look into that. I believe that a guidance will 
probably be issued. That guidance was probably prepared prior 
to the No Child Left Behind Act, and I think that it is 
important that we go over it carefully, that we examine it, and 
that we eventually issue some guidance so schools have a road 
map for testing students, for using diagnostic tools to 
measure, but doing so in a way that does not discriminate.
    Senator Wellstone. Let me just ask you a last question. I 
appreciate your response.
    So what you are saying is you have no familiarity with the 
guidance. You have not seen it; is that what you are saying?
    Mr. Reynolds. Oh, no, I have seen the guidance.
    Senator Wellstone. OK. Well, if that is the case, but then 
what you were saying is I have seen it, but I do not really 
know why it has been archived.
    Mr. Reynolds. That is correct.
    Senator Wellstone. But since you have seen it, my question 
then for you--I am not a lawyer. So I am doing cross-
examination, and I would not know how to--but since you have 
seen it, do you intend to issue it and get it out to schools, 
school districts?
    Mr. Reynolds. As I said before, I cannot make that 
determination without consulting with career staff. I need to 
sit down with them, and we need to go over the guidance 
together. We also need to go over the guidance with the No 
Child Left Behind Act in mind. And until that is done, I cannot 
say whether it will be issued in its current form, but I do 
suspect that some type of testing guidance will be issued by 
the Office of Civil Rights.
    Senator Wellstone. My last question. Well, if the No Child 
Left Behind legislation is in contradiction to the guidance, we 
have got problems. Because the guidance is all about how to 
make sure that the testing is done in such a way that it does 
not have a disparate impact on ``students of color'' or on 
girls or you name it. So we have got something to work out 
here.
    Let me ask you this: Do you believe that the testing 
systems on the State and local level should comply with the 
civil rights laws, such as Title VI of the Civil Rights Act of 
1964, section 204 of the Rehabilitation Act, and Title IX of 
the education amendments of 1972?
    Mr. Reynolds. I think any institution receiving Federal 
funds must comply with those civil rights statutes.
    Senator Wellstone. And your position on Title IX, again? 
You said it earlier in testimony. I know you mentioned it. I 
come from a State which has a strong wrestling community. I am 
a strong supporter of Title IX, but I also think the wrestling 
community and others have raised questions about, ``My God, all 
of these minor men's sports have been eliminated, and they are 
trying to figure out something that can be done, I believe, in 
Title IX, but I am still looking for something that can be 
done--''
    What is your position in relation to what some of these 
communities, like the wrestling community, have had to say on 
Title IX?
    Mr. Reynolds. My position on Title IX, I am an enthusiastic 
supporter. I picked up the newspaper 1 day and discovered that 
I opposed it. That was news to me. I felt that maybe I had 
developed amnesia, so I went and reviewed all of my writings. I 
discovered nothing, and I recall never making a critical 
comment of Title IX.
    Title IX, because of it, my aunt Terry, who is here 
somewhere, she received an athletic scholarship. She was a co-
captain of the Lady Eagles. They won a championship in 1982, 
the Southern Regional championship, and I am glad to say I was 
there at that game. So I am an enthusiastic supporter of Title 
IX.
    Now you mentioned the controversy involving, well, 
allegations. Some people feel that Title IX or the policy 
guidance is, it is enforced in a way that discriminates against 
certain male sports. Now I have heard allegations on both 
sides. I think that it is incumbent upon whoever sits in that 
job as Assistant Secretary to investigate these allegations, to 
see if it is true.
    I have not had an opportunity to speak with career staff or 
to consult with athletic directors around the country and other 
involved parties so that I can collect the necessary data to 
arrive at an informed decision, but I assure you that if I am 
privileged to be confirmed, I will look into it.
    Senator Wellstone. Thank you.
    Senator Jeffords. Senator Murray?
    Senator Murray. Thank you very much, Mr. Chairman. I really 
appreciate your holding this hearing today and giving us the 
opportunity to talk about some of the essential intersections 
of civil rights and education. I believe, like many committee 
members, that education is the cornerstone of our democracy, 
and a child's education is their chance to succeed in life. And 
I believe that guaranteeing every child, regardless of gender, 
race, religion, sexual orientation or disability, receives a 
high-quality education is really one of our most sacred 
responsibilities and privileges.
    Our civil rights laws, although they are not perfect, 
represent our attempt to build a nation of equal opportunity, 
guaranteeing that every child has the chance to reach those 
dreams.
    Mr. Reynolds, I really appreciate your appearing before the 
committee today and hope that, with this hearing, we can 
explore some of your essential understandings of this position 
and assess your ability to do the job.
    First, I want to talk about your understanding of our civil 
rights laws, especially as they relate to education, not just 
the knowledge of the relevant statutes or court decisions or 
regulations and guidances, which I think is very impressive, 
but I think also your understanding of the history of these 
principles and the role they play in our society; and, second, 
how you plan to interpret and enforce those laws and 
regulations as they stand.
    The reason those questions are critical is because those 
laws are more than words on paper or issues for debate here in 
the Senate. They really initiate real change and create real 
opportunities for Americans in all walks of life.
    I remember, when I went to college, money was very tight. I 
do not know if I was a good enough athlete to ever win an 
athletic scholarship because I never had a chance to try. I 
played intramural sports in college because that was, as a 
woman, the only option I had, and there was not any others. I 
was pretty proud to watch the Olympic athletes this last few 
weeks and see us win 34 medals, with one-third of them being 
women.
    And I think it is pretty clear that Title IX has increased 
women's access to scholarships, and coaching, and other 
opportunities to succeed. So I appreciate your answer to 
Senator Wellstone's question, but I think it is important to 
note that Title IX has really contributed to a dramatic 
increase in number of women competing in athletics, but there 
are a lot of side benefits to that too: better grades, women 
completing college, decreasing use of drugs, health care, a lot 
of things.
    Some people have attacked the Title IX standard saying that 
it creates a quota and forces cuts in men's athletic programs 
and scholarships, and I am glad that Senator Wellstone did not 
go that far, but, Mr. Reynolds, I wanted to ask you today can 
you tell me what your understanding is of the three-part test 
under Title IX and its application under current law?
    Mr. Reynolds. Senator, thank you for providing me with a 
second opportunity to address this issue. As I suggested in my 
testimony, freedom is important to me. I do not think anybody's 
freedom should be curtailed by invidious discrimination. It 
seems to me that the fact that you are a woman, the fact that 
you have a brown skin should be of no consequence. I know that 
that is a goal, and I know that some of us will fall far short 
of that goal, and that is why we need vigorous enforcement of 
our civil rights statutes, including Title IX.
    I mentioned my aunt. She was the first college graduate in 
my family. Could the family have afforded to send her to 
college without that athletic scholarship? I doubt it. I think 
that a female athlete should be given the same privileges as 
male athletes. It is only fair. So----
    Senator Murray. Do you know the three-part test, in terms 
of Title IX?
    Mr. Reynolds. Yes, the first prong--well, the first safe 
harbor is the proportionality test. Basically, it requires that 
participation opportunities between male and females be 
proportionate to enrollment.
    The second one, and these are safe harbors. A university, a 
school, any school would have an opportunity to demonstrate 
that it is not in violation of Title IX in other ways. These 
are merely safe harbors.
    Senator Murray. So you do not see the three-part test as 
ever requiring a quota?
    Mr. Reynolds. No. The way it is drafted, on its face, it 
does not require a quota.
    The second test, you can demonstrate that you have not 
violated Title IX by showing a continuing history of program 
expansion, and the third prong is by showing that the athletic, 
well, the interests of the underrepresented sect is fully 
accommodated.
    Senator Murray. So I am hearing you that you do not see 
Title IX as requiring a quota. You do see it as providing safe 
harbor provisions and that you do not agree with some people 
who say it has created quotas or created opportunities more for 
female than male athletes?
    Mr. Reynolds. On its face, Title IX and the--well, the 1996 
clarification that contains the three safe harbors is 
clarifying the 1979 regulation. Those two documents provide 
several ways for a school to comply with Title IX. I think it 
is important that we judge each allegation on its own merits. I 
should not make, and I will not make, any broad statements. I 
think that it is possible for a school to use a quota. In that 
instance, I think that that would implicate some legal 
problems, but the 1979 regulation and the 1996 clarification, 
on its face, does not require that schools set aside a set 
number of athletic spots or scholarships.
    Senator Murray. I appreciate that response. Let me ask you 
one other question quickly. It is my understanding that 
following a 1990 court decision, Davis versus Monroe County 
Board of Education, clarifying that student-on-student 
harassment is illegal, OCR decided to update its 1997 sexual 
harassment policy guidance, and after extensive meetings with 
representatives from a wide range of organizations, 
comprehensive legal review by the Departments of Justice and 
Education, and appropriate public comment, the final guidance 
was announced in the Federal Register on January 19th of 2001.
    Are there any parts of that guidance that you oppose or 
disagree with? And, if so, which parts?
    Mr. Reynolds. At this point, I would have to say, gees, I 
have read it. It has been a while. Nothing jumps out at me, but 
again, just like the testing guidance, I think that I am going 
to have to sit down with career staff, consult with the 
relevant parties, including members of the Senate and see if 
that particular guidance will be issued in its current form.
    It is possible that, after a review, that we may modify it, 
but at this point, I just do not know.
    Senator Murray. Are there any modifications, in particular, 
that you are looking at?
    Mr. Reynolds. No.
    Senator Murray. Mr. Chairman, my time has run out. Thank 
you.
    Senator Jeffords. Senator Reed?
    Senator Reed. Thank you very much, Mr. Chairman. Thank you, 
Mr. Reynolds, for your testimony today.
    In response to a question from Senator Wellstone, you said 
that you do support the disparate impact standard when it comes 
to Title VI enforcement; is that correct?
    Mr. Reynolds. Yes.
    Senator Reed. What would be the position of the Center for 
New Black Leadership with respect to the disparate impact 
standard?
    Mr. Reynolds. Well, I served as president for the Center 
for New Black Leadership, and I also served on its board. I am 
no longer affiliated with the Center for New Black Leadership, 
so I cannot speak for the Center.
    Senator Reed. What was the position while you were 
president or on board there?
    Mr. Reynolds. While I was president, the Center for New 
Black Leadership did no work involving that issue.
    Senator Reed. So there has been no position, either 
formally or informally, adopted by the Center for New Black 
Leadership with respect to the standard, no discussions you are 
aware of? It was a nonissue while you were president?
    Mr. Reynolds. You are referring to Title IX?
    Senator Reed. I am referring to Title VI.
    Mr. Reynolds. Oh, I am sorry, disparate impact. No, there 
was no--discussions, yes; policy, no. Again, the disparate 
impact standard, it is a powerful tool. It is used in 
employment cases. It is accepted by courts. It permits you to 
draw--sometimes it is difficult to get direct evidence of 
discrimination. This tool permits you, if used properly, to 
draw an inference, and I support it.
    Senator Reed. One of the reasons why it is so critical is 
that, as you well know, under the Sandoval decision, that there 
is no private right of action in this Title VI litigation, so 
that it would be incumbent upon you, as the Director of this 
office, to initiate suits to vindicate the rights of thousands 
of Americans who do not have that right.
    Mr. Reynolds. That is correct.
    Senator Reed. So this is not merely a technical sort of 
issue. Because as I think you pointed out, very seldom will you 
find a situation where someone says, I did not promote Jane or 
Johnny because of their race or because of their disability. It 
is not that clear cut.
    Most of what you said in your testimony is that you will 
vigorously enforce the law, once there is a finding of 
discrimination. So the issue becomes how do you find 
discrimination, and that is where the disparate impact 
statement I think comes in. You seem to imply that your 
criticism of this standard previously has been misinterpreted. 
You were simply criticizing the statistical methods used to 
arrive at that; is that your position?
    Mr. Reynolds. Senator Reed, when I mentioned the notion 
that we need a finding of discrimination, I did not use that 
phrase in the context of Title VI, it was used in the context 
of the use of a racial classification. The U.S. Supreme Court 
requires a finding of discrimination or has strongly suggested 
that a finding of discrimination is required before a State 
actor can use a racial classification. It was not in this 
context.
    Senator Reed. But going back to the context of Title VI, 
and thank you, the point is that you would have to, as the, in 
your proposed job, use the disparate impact standard. And the 
suggestion of your previous testimony is that you do not have 
any criticism with the standard, it is just the statistical 
manipulation to come up with the numbers. I do not want to put 
words in your mouth, but can you explicate that a bit?
    Mr. Reynolds. Well, I support--well, as a lawyer, I think 
that we should use all of the tools in the toolbox, and, where 
appropriate, using disparate impact analysis is the only way to 
go or the best way to go. So there is no conflict between my 
views of Title IX, there is no philosophical objection to it. 
It is, as I said before, it is a powerful tool.
    Senator Reed. Have you criticized it in the past?
    Mr. Reynolds. No.
    Senator Reed. I seem to have heard you, in your dialogue 
with Senator Wellstone, you said you criticized at least its 
application.
    Mr. Reynolds. No, I--okay. Here is an example. If there is, 
say, in New York City, tugboat operators, over 90 percent of 
the tugboat operators in New York City's harbor are of 
Scandinavian descent. That is a statistic. Now, based on that, 
some people have concluded that discrimination has occurred. I 
think that that statistic may be grounds for an investigation, 
but standing by itself, I do not think that that necessarily 
means that discrimination has occurred.
    There are statistical disparities all around us that may or 
may not mean that discrimination has occurred. When I 
criticized the use of statistics, that was the context.
    Senator Reed. It seems to me you say you are going to 
support the standard of disparate impact or look at disparate 
impacts in policies, and then you suggest that it becomes a 
statistical sort of device or at least statistical problems, 
not legal problems, but I thank you for your answers.
    Senator Jeffords. Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Reynolds, on this question of affirmative action, and 
quotas, and outreach, and all of those different phrases we 
use, each one of them have a different meaning, and I think 
leads us to confusion.
    Would you share with us where you stand on the question of 
quotas, as opposed to affirmative action, as opposed to 
affirmative outreach and how you see those terms, what you 
believe in and what you do not believe in.
    Mr. Reynolds. Senator, you bring up a very important point. 
I think a lot of the disputes that take place occur because we 
fail to take the time to define our terms. The phrase 
``affirmative action'' means anything to anybody. It is an 
empty vessel. You can pour into it what you will.
    Quotas, that could be an affirmative action program. The 
U.S. Supreme Court has declared that to be illegal, and no one 
will admit to supporting quotas. You can have----
    Senator Sessions. I think that is right. I do not think any 
people in the Senate will say they favor quotas. I do not think 
there is a single one that says they favor quotas, all right? 
And the U.S. Supreme Court, I believe, agrees with that, does 
it not?
    Mr. Reynolds. Yes.
    Senator Sessions. Then where do we go from there? What is 
the next step down in affirmative action?
    Mr. Reynolds. OK. I want to start off by talking about my 
view. I think that it must include the vigorous enforcement of 
our antidiscrimination laws. The Government, in the main, 
should not be in the business of distributing benefits and 
burdens on the basis of race. I do not think employers should 
be in the business of distributing benefits and burdens on the 
basis of race or anyone who receives Federal dollars.
    Now that is the foundation, but I think it is important 
that we start to build on top of that foundation, and we have 
already started. Because of Senator Kennedy's efforts, along 
with President Bush's, we have enacted historical educational 
reform legislation. Again, your ability to get a high-paying 
job is highly correlated with the amount of education you have 
received and the quality of education that you have received.
    Now, in many urban communities, the students may get 12 
years of education, courtesy of the Government, but we have to 
look at the quality of the education that these students 
receive. I am not satisfied with the quality of education. 
While I was at the Center for New Black Leadership, the Center 
was involved in raising money, scholarship money, for 
underprivileged kids to go to private schools. Now this 
information got out in the community, and I was inundated with 
mothers, grandmothers, aunts and fathers who were desperate to 
get their children out of failing schools.
    Now I think that we need to expand our definition of 
affirmative action so that it includes improving the quality of 
education received by our students. I think that we also need 
to take a look at, again, regulatory--regulations. There is no 
reason why Taliq Gupta should have been, his establishment 
should have been closed down. He braided hair for a living. The 
State Cosmetology Board said that he could not do it. He is not 
using chemicals. If a woman does not like the product, she does 
not pay him. She takes it out, no harm, no foul. Yet, because 
of regulations that were enacted in a different area, these 
regulations were adopted to protect us from barbers who use 
chemicals, who used a scissors and other implements.
    So I think that we need to revisit some of our regulatory 
laws to ensure that economic development in urban communities 
is not smothered. So that is a part of my vision of affirmative 
action.
    Another example of affirmative action would be the use of 
racial classifications. As a general proposition, it is not 
permitted. It is permitted, under limited circumstances. The 
U.S. Supreme Court has declared that whenever the State uses a 
racial classification, that the State has to come up, has to 
demonstrate that there is a compelling State interest, and in 
addition to that, the State has to demonstrate that its plan is 
narrowly tailored.
    Now I think that it is proper to use racial classification 
in a limited set of circumstances. It has to comply with 
constitutional requirements. So that is my thumbnail sketch of 
affirmative action.
    Senator Sessions. Well, I thank you. I know my time has 
expired, and I just would say it is a delicate and important 
issue. How can we encourage and open doors for people who have 
had difficulty getting a fair chance in life, at the same time 
without violating the great principles of who is most qualified 
gets to be able to do the job or get on the baseball team or 
get the promotion at business. It is extremely complex. I think 
sometimes that someone may oppose one kind of quotas and be 
correct and be interpreted as opposing a lot of affirmative 
programs that are good.
    Mr. Reynolds. That is correct.
    Mr. Chairman, thank you.
    Senator Jeffords. Senator Kennedy?
    The Chairman. Thank you very much, Mr. Chairman. I 
apologize for being late for the hearing and will read over the 
testimony and the exchanges with our colleagues.
    I want to congratulate you, Mr. Reynolds, for getting the 
nomination of the President for this position and for your 
impressive background. I have read through the resume, and it 
is an impressive one, and I think you are to be commended for 
that progress that you have made over the years.
    The real question I think, for us on this committee, is how 
that background that has been very tied into economic 
development is really related to a central challenge that we 
are facing in this Nation, and that is improving the quality of 
education of children and ensuring that children are not going 
to be left out and left behind. That is the question about the 
qualifications that you have, which are ample and robust.
    In a number of different areas, we have to ask ourselves 
whether you are the man for this particular job, and what in 
your background, what in your background makes you qualified 
for that, brings you with qualifications to this particular 
job, which is highly technical. It is not, generally, a broad-
based kind of political judgment or a political decision, it is 
really a highly technical question that is very, very 
significant in importance to millions of children in this 
country, and not just to children of not only people of color, 
but to those with disability and also what you bring to this 
office in terms of understanding what we have tried to do with 
the President and the robust support of the members of this 
committee, in terms of the education reform. That is what I am 
very much concerned about in terms of your particular 
nomination. That is my primary concern.
    If you are confirmed, as has been mentioned over the course 
of this hearing, you will be enforcing the Title VI, Title IX, 
Rehabilitation Act, Americans with Disabilities, all of which 
have been central, core issues this committee has been dealing 
with over the period of the time.
    You will be responsible, as well, for--you were talking 
about the tugboats. I was remembering back the Wards Cove 
decision, which was directly related to some of the things that 
you were talking about, but that ``ain't'' it. This is 
education, which you are up for, and that is what we are 
interested in finding out about, what in your background, other 
than getting briefed up, which I do not dismiss, on Title VI, 
IX, Rehabilitation, Americans with Disabilities Act, what is 
going to bring you to make sure that these testing provisions, 
which are complex and difficult, in understanding this, 
evaluating, measuring annual yearly progress, disaggregation of 
numbers based upon race and about progress that is going to be 
made, understanding about the tests, where they are related to 
State standards, how they are related to the kinds of quality 
issues that my good friend, Paul Wellstone, made to try and 
raise them so we are not getting off-the-shelf tests, what is 
the role of inadequate teachers in there, what is going to be 
the judgment made in terms of graduation rates, drop-out rates, 
school tests go up, drop-outs go up, what have we got in the 
school, and to know whether we are really going to give life to 
these questions.
    The hate crimes prevention programs that are included in 
this, very important in terms of the after-school programs, 
single-sex provisions, that disabled students receive 
reasonable accommodations under the SEI. In looking at your 
resume, it does not appear that this education policy has been 
in these areas, and what work have you done over the period of 
the recent years in any of these areas, any of these areas?
    Mr. Reynolds. Senator Kennedy, I will direct you, if you 
have my resume in front of you, I would direct you to the 
section Center for New Black Leadership.
    While I was at the Center for New Black Leadership, I spent 
50 percent of my time on educational policy. What I did there, 
I looked at research literature, I met with individuals who 
operate schools, I went to----
    The Chairman. This is, just in fairness, this is New Black 
Leadership, this is from March of 1997 to August of 1998; is 
that correct?
    Mr. Reynolds. Yes.
    The Chairman. I am looking at the last 4 years, 1999, 2000, 
2001, 2002, we have just passed, in the last 4 or 5 years. You 
are giving me now a reference. Your answer to my question about 
what, in your background, has been related to Title VI, IX, 
Rehabilitation, Americans with Disabilities, testing, hate 
crimes, after school, and now you are referring me to your 
resume and pointing out what you did in the New Black 
Leadership in 1997 and 1998.
    Mr. Reynolds. That is where I would like to start.
    The Chairman. All right.
    Mr. Reynolds. While at the Center for New Black Leadership, 
I met with the pastor of Pilgrim Baptist in Brooklyn, I met 
with the pastor of the Christian Life Center in Brooklyn, I met 
with Congressman Floyd Flake, who is a pastor of Allen AME. All 
of these churches run schools.
    There is a lot to be learned from going in and looking at 
these schools. I did that. I reviewed research literature. I 
sat down with experts in the field. I met with Nobel Laureate 
Gary Becker to discuss some of these issues.
    Now what is not in my resume, Senator Kennedy, is the fact 
that once upon a time I was an education major in college. I 
was a student teacher. I had the privilege of going back to my 
alma mater, Jamaica High School, to work as a student teacher. 
I have been in the classroom.
    Yes, you are right, these are technical issues. I am a 
regulatory attorney for Kansas City Power & Light Company. We 
do not go to court here. OCR, all of the enforcement actions 
occur in the regulatory environment. What I do for a living, I 
am senior regulatory counsel for Kansas City Power & Light 
Company. That is what I do, dealing with technical, difficult 
issues.
    The Chairman. I do not question that you are an able, 
gifted, talented regulatory lawyer and that you do an 
outstanding job for the Power & Light Company. I do not just 
question. What I am interested in is what is in your background 
in terms of these pieces of civil rights legislation, which are 
at the heart of the challenges of discrimination in our 
schools. And your response, which you said would be just the 
beginning, talks about visiting with--I know Congressman Flake. 
I know the schools there, and the talking with a nobel 
laureate, you talked of that, and that you worked as a student 
teacher, I have got. That is your response as to what you have 
been doing in the last 4 years on the matters that I have just 
mentioned here that are really the heart of the enforcement of 
the program.
    OK. Let me ask you this: What is your sense of the civil 
rights protection provisions in the newly enacted education 
bill? Does the civil rights provisions in the newly enacted 
education prohibit a religious organization receiving Federal 
funds from admitting students to an after-school program based 
upon their race, gender, religion or disability?
    Mr. Reynolds. Senator, I would have to see all of the 
facts, but if a religious organization is receiving Federal 
funds, then without having all of the facts, my inclination is 
to say that that would be prohibited.
    The Chairman. The civil rights protections, have you read 
these protections?
    Mr. Reynolds. Yes.
    The Chairman. Well, your assessment of them, the ones that 
have been read, that you read, that we passed in the law that 
are dealing with--you would obviously read them, in terms of 
the preparation for today, you would obviously read them and be 
familiar with them, and do you have any hesitancy about whether 
they would permit, in after-school programs based upon race, 
gender, religion or disability, whether they prohibit a 
religious organization receiving those funds from admitting 
students based upon the race, gender or religion?
    Mr. Reynolds. If an institution is receiving, if any 
individual organization is receiving Federal funds, and again 
this is without having any facts of a particular case, this is 
a stripped-down hypothetical, and that is----
    The Chairman. This is what we are trying to do, and I want 
to make it very clear, that is exactly what the purpose is. 
There should be no permission or use of Federal funds where you 
could get around that. If we did not draft it right, I would 
welcome the fact that you would say, ``Well, it is not drafted 
because it has got loopholes in it,'' but we drafted it so it 
would not permit that.
    And so I guess your answer is that is what the language 
says, that is the way I would read it. I do not want to put 
words in your mouth, but I want to give you the third 
opportunity to respond to it. This language is clear. We spent 
a lot of time on it. If you read the debates and the 
explanation by the managers of the bill, it is one of the most 
important parts of that whole legislation, one of the most 
important parts, and there should not be any question in your 
mind what we intended.
    I agree there may be facts or other situations, but we are 
talking about reading language and understanding what we were 
attempting to do.
    Let me say does the civil rights protection provisions 
prohibit discrimination in hiring for after-school programs 
based on race, gender, religion or disability?
    Mr. Reynolds. My answer is the same.
    The Chairman. I did not get it the first two times.
    Mr. Reynolds. Senator, I believe that the answer is yes. 
Again, I hesitate because I do not feel comfortable, I do not 
feel that I can provide you with an informed decision unless I 
have all of the facts.
    The Chairman. What would you want to do, what would be your 
own instruction to us, as somebody--would you come and say to 
us now, if you are going to pass a bill and you are going to 
provide Federal funds, that you should not permit them to be 
used to be able to discriminate?
    Mr. Reynolds. Senator, if I am a Senator, that would be my 
position. That is what I would fight for.
    The Chairman. Well, that is what we have tried to do with 
the language. There was not any dispute, there is no difference 
in all of the members and their explanation of this provision. 
I want you to understand, as a lawyer reading it, whether you 
agree that it does or not, and I am troubled by your hesitancy 
in saying that that is the way I read it, Senator. That is the 
way we have explained it, the managers of it. That is the way 
we have explained it, the way the President has signed it, and 
we have got to be able to know that the person who is going to 
enforce it believes it too.
    Mr. Reynolds. Again, Senator, I am not sure that we are in 
disagreement here. I am telling you that I believe that if you 
receive Federal funds, that racial discrimination is 
prohibited. I hesitate because, unlike the other civil rights 
statutes, that one has not been around a long time, and I have 
not had an opportunity to absorb it. Yes, I reviewed it, but I 
would feel far more comfortable if I had it in front of me, and 
I do not.
    But I am telling you that I believe, without having it in 
front of me and without having any facts, that I believe that 
if you receive Federal funds, it is modeled like all of the 
other civil rights statutes that OCR has jurisdiction over, 
if----
    The Chairman. Let me ask you, just as the Assistant 
Secretary for Civil Rights, would you vigorously enforce the 
statutes, case law, and policy guidance protecting the rights 
of LEP students, even if that means that some will receive the 
native language instruction?
    Mr. Reynolds. I am duty bound to enforce all of the laws, 
all of the regulations and all of the policy guidance.
    The Chairman. What is your--duty bound? I mean, yes, that 
is my----
    Mr. Reynolds. I will enforce not only that provision, all 
of----
    The Chairman. All I am saying is, if the statute says that 
the, as Assistant, would you enforce statutes, laws, policies 
protecting the rights of LEP students, even if it means that 
some receive native language instruction? I would think the 
answer is, yes, if that is what the statute says, then I would 
enforce it. If it does not say that, then we have a different 
issue.
    Mr. Reynolds. If you would like, I will just answer with a 
yes.
    The Chairman. Do not try and please me. Do not do this just 
to please me. I have been around here a while, and you do not 
have to do this just to please me. I want frank and candid 
answers. If you want to give them, you can give them, but do 
not pander to me.
    Now the organization that you work for, the Center for 
Equal Opportunity, has opposed the use of native language in 
the instruction of LEP children. Do you share the 
organization's view on bilingual education?
    Mr. Reynolds. No.
    The Chairman. And have you ever discussed the Equal 
Opportunities Act of 1974 related guidance addressing the 
education of Limited English Proficient children with Linda 
Chavez?
    Mr. Reynolds. It was probably Jorge Ansell, if I had a 
conversation about this issue. I had a limited role at the 
Center for Equal Opportunity, and it did not include bilingual 
education.
    The Chairman. Just, finally, in your testimony before the 
committee, on Bill Lann Lee, this is what you said: ``If 
confirmed as an Assistant Attorney General for Civil Rights, 
Mr. Lee's background suggests that no democratic principle, 
controlling legal authority, nor legal standard will prevent 
him from furthering his particular ideological agenda. Mr. 
Lee's conduct over a 20-year period suggests he has adopted the 
late Malcolm X phrase, `by any means necessary.'''
    What was the basis for that?
    Mr. Reynolds. The basis of that was the Adarand decision. 
That was the trigger. Shortly before that hearing, the U.S. 
Supreme Court issued a new standard. It applied the strict 
scrutiny standard to the Federal Government. And during 
Assistant Attorney----
    The Chairman. He indicated his support for it, that he 
would follow it.
    Mr. Reynolds. During that hearing, Senator Hatch asked 
several times for Assistant Attorney General Lee to State the 
standard of Adarand case. His response was that racial 
preferences are permissible if conducted in a limited and 
measured manner.
    Now I would submit that that is not the holding, that is 
not the standard in the Adarand decision. We have three 
standards for reviewing the constitutionality of statutes, and 
if not----
    The Chairman. Let me just--okay, I will let, but this is 
one part. Is your answer based upon just the response to 
Senator Hatch about his lifetime of involvement and commitment 
in terms of advancing the cause of civil rights? You are 
telling us here today that your judgment and decision, where 
you said Mr. Lee's conduct over a 20-year period suggests he 
has adopted the late Malcolm X, this statement says 20-year 
period, ``by any means possible.''
    Mr. Reynolds. In my testimony, I started out by saying that 
he was a fine man, that he was a fine litigator, that he was a 
very, very good advocate. What he did in courtrooms for 20 
years, that is fine, in his capacity as an advocate.
    However, in the capacity as Assistant Attorney General for 
Civil Rights, that is a different role, and the only thing that 
concerned me, well, the primary thing that concerned me was his 
willingness to apply the constitutional standard that was 
articulated by the U.S. Supreme Court in the Adarand decision, 
he was asked on several occasions, ``What was the standard?'' 
And his response was, ``Racial preferences are permissible if 
conducted in a limited and measured manner.''
    Now this is no small fact here. This is extremely 
important. In the VMI case, the VMI case you had a State 
institution that discriminated against women.
    The Chairman. There is, of course, a different standard on 
gender, is there not?
    Mr. Reynolds. Yes, there is. And the point that I am making 
is, if I were before you and if I were asked, what is the 
standard in cases where a classification is used based on sex, 
and I replied to you that discrimination against women is 
permissible if it is conducted in a limited and a measured 
manner, then you would be justified in being a little upset 
with me. Not only is that going to affect women, more 
importantly, that is not the standard articulated in the VMI 
case.
    The Chairman. Mr. Chairman, my time has expired. As I 
understand it, the vote is----
    Senator Jeffords. They are waiting for us.
    Senator Sessions. Do you plan to return, Mr. Chairman?
    Senator Jeffords. I am sorry?
    Senator Sessions. Do you intend to return or not after 
this?
    Senator Jeffords. The record will be kept open until 
Monday, but we will cease the hearing process at this time 
here.
    Senator Sessions. If I could have 1 minute, do we have that 
much time or not?
    The Chairman. I will hold it for you.
    Senator Sessions. I trust you.
    Senator Jeffords. OK. Go ahead, yes, please.
    Senator Sessions. You know the Bill Lann Lee matter, it 
involved a pivotal issue. You are exactly correct. We had a 
lady here whose daughter, she was Chinese American, and worked 
to get in the school, and she was surprised when she made a 
good test score and did not get in. They told her too many 
Chinese. That is why her daughter did not get in, and she did 
not think that was right.
    Mrs. Adarand testified in the committee, and I do agree 
with you that, as fine a person as Bill Lann Lee was, he was so 
determined in his view of how quotas or affirmative action 
should be interpreted that he did not recognize what the U.S. 
Supreme Court had said in Adarand and did not commit to 
adhering to it, at least according to the plain interpretation 
that should have been given to it. So I think that is why he 
was not confirmed and did not get a majority.
    You were asked earlier about this question of disparate 
impact analysis, that a statistical finding, that a statistical 
finding, of a difference between the races in an analysis does 
not automatically mean the difference is due to discrimination; 
is that your view?
    Mr. Reynolds. Yes, although I will say that a statistical 
disparity could be the basis for an investigation to determine 
if discrimination has occurred.
    Senator Sessions. Well said. But just in itself, is that 
not what the courts say too?
    Mr. Reynolds. Yes, this is not Jerry Reynolds' standard.
    Senator Sessions. Right, this is what the law is today.
    Mr. Reynolds. Yes.
    Senator Sessions. So it is incumbent then, if the 
statistics do reveal some sort of discrimination or an analysis 
of these statistics uncovers a discrimination, it would be your 
duty in Civil Rights there to focus on that and determine 
whether any discrimination took place and to remedy that, would 
it not?
    Mr. Reynolds. That is correct, Senator.
    Senator Sessions. And would you be willing to do that and 
take action to remedy discriminations that are properly found, 
based on the facts in the law?
    Mr. Reynolds. Senator, if I am privileged enough to be the 
next Assistant Secretary for the Office of Civil Rights, I 
assure you that I am going to use all of the tools in the tool 
kit. I mean, I----
    Senator Sessions. I think you are right. I just wanted to 
bring that out because, look, we know, and you know, and I 
know, and most people that have been around here know there are 
some complex, big-time issues with regard to how these matters 
are decided, and we have to be very careful.
    And there is a strong lobby for pushing the law beyond what 
it is today. And that means following Adarand, and following 
the disparate impact analysis and those kind of facts, and I 
think we want a lawyer in this position to be supervising many 
lawyers who have been there for a career in this Department. 
You will be hearing the briefings, and discussing the issues, 
and wrestling with them, doing your own research and analyzing 
and respecting the staff that is already there, but you will 
have the final decision because you have the confidence of the 
Secretary of Education and the confidence of the President of 
to United States; is that not correct?
    Mr. Reynolds. Yes, I am----
    Senator Sessions. That is the way I see it.
    Mr. Reynolds. The Office of Civil Rights has some fine 
attorneys. I have only met with a handful of them. 
Unfortunately, I have not been able to get into the substance 
with them out of my respect for the Senate's advice and consent 
rule.
    Senator Sessions. Having been in the Department of Justice 
and seeing how these matters go, it is usually 20 dozen 
memorandums written before it ever gets to you. The issues 
would be crystallized, and you will have the--you will be doing 
that, but you are not going to be trying cases all over America 
involving these issues.
    Mr. Reynolds. That is correct.
    Senator Sessions. Mr. Chairman, I guess our vote is about 
done. Thank you for staying. I am sure they would no call that 
vote if you are not there, and maybe you can----
    Senator Jeffords. Thank you, Senator. You have been very 
helpful with your interrogation.
    I want to thank the witness for your patience and your 
statements. I think you have given us all a much better idea on 
how to make up our minds and judgment. I just thank you.
    [The prepared statement of Mr. Reynolds follows:]
                Prepared Statement of Gerald A. Reynolds
    First I'd like to thank my home state senator, Senator Bond, for 
that generous introduction. Mr. Chairman, Senator Gregg, and members of 
the committee, thank you for providing me with this opportunity to 
discuss my views on civil rights enforcement, and educational issues. I 
am truly honored and humbled to be here. I would also like to thank 
President Bush for honoring me with his trust and confidence. He has 
given me an extraordinary opportunity to serve my country as a guardian 
for the civil rights of students across America. I'd also thank my 
family. Their guidance, support and love have made all of my 
accomplishments possible. Mr. Chairman, let me introduce some of my 
family.
    My parents, Arthur Reynolds and Emma Reynolds Simon have been the 
greatest influences in my life. My father was raised in Jackson, South 
Carolina during the 1940s. Back then, blacks didn't have much in the 
way of educational opportunities, but my father had a thirst for 
knowledge, and a devotion to reading--a love of learning that he passed 
on to me. He made the most of what was available and I'm proud to say 
that he eventually became a New York City police officer. He retired 
from Harlem's 28th precinct. My mother too has overcome large hurdles 
in her life. The manner in which she has conducted her life has taught 
me the value of fighting for my beliefs.
    Janet Marie Sloan, my mother-in-law and second mother, has joined 
us today. She was a registered nurse and is now a full-time 
grandmother.
    After my parents left the South, they initially settled in the 
South Bronx near my Aunt Jane and Uncle Man. Aunt Jane, as well as two 
of her sons, James and Larry Key, are here today. James now works for 
the U.S. Customs Service. Prior to September 11th, he was stationed in 
lower Manhattan. On September 11th, he risked his life to protect 
others. In fact, Customs Service has recognized James as a hero for his 
actions at 6 World Trade Center on September 11th. It has been said 
that a man realizes his liberty by sacrificing his private interests 
for the wider community. James is living proof of that, and I am 
honored that he is here today.
    The most distinguished guest here today is my wife, Renee. Without 
her I would not be here today. Renee is a former defense analyst. She 
is now the Chief Executive Officer for the Reynolds household. She also 
serves our community in Kansas City, Missouri as the President of the 
Parents Association for my daughter's school. Finally I'd like to 
introduce my children. My stepson Ghani is a high school history 
teacher in Baltimore, Maryland. His fiancee, Sarah McKitrick, also 
teaches in Baltimore. My daughter, Emma Marie, is a first grader at 
Academie Lafayette, a public charter school located in Kansas City, 
Missouri. The troublemaker on my wife's lap is my son Ellison.
    Mr. Chairman, when I think about my family, and when I look at my 
children, it reminds me of why I am eager to serve as the Assistant 
Secretary in the Department of Education's Office for Civil Rights. 
Quite simply, the Office protects our nation's students--whether 
they're in first grade or in graduate school--against the evils of 
invidious discrimination. Students have these protections because of 
the great work of civil rights organizations, and many members of 
Congress--including some on this committee, including you Mr. 
Chairman--who played key roles in the enactment of civil rights 
legislation. Those laws marked a turning point in the life of the 
country, and, more personally, a turning point in the lives of members 
of my family.
    Mr. Chairman, you recently joined with President Bush and Secretary 
Paige in providing the leadership and vision that led to the No Child 
Left Behind Act--the most sweeping reform of grade-school education in 
30 years. As President Bush said at the signing ceremony, bipartisan 
leadership demonstrates that honorable people can disagree, yet 
compromise, and come together for the good of our nation's children. 
With this body's advice and consent, it is in that spirit that I intend 
to take up the task that President Bush has assigned me.
    My passion for education comes not only from the influence of my 
family and my own life experiences, but also from my desire to see that 
others are afforded the same kinds of opportunities that I have 
enjoyed. To limit an individual's education is to limit his freedom. As 
President of the Center for New Black Leadership, I focused on the 
significant achievement gap between white and black students. I came to 
the conclusion that we need to expand the concept of civil rights so 
that it includes improving the quality of education for America's 
disadvantaged children.
    My work at the Center for New Black Leadership led me to conclude 
that education is the answer to many civil rights issues. Education 
gives poor children the skills they need to succeed in the marketplace. 
A sound education is the fastest, and sometimes the only, way out of 
poverty. At the Center for New Black Leadership, I spent most of my 
time reviewing research literature, meeting with individuals who run 
schools, and promoting education reform. I also learned a great deal 
from a broad range of experienced education reformers, from Republican 
Congressman J.C. Watts to Democratic former mayor of Baltimore, Kurt 
Schmoke, and former Congressman Floyd Flake.
    After leaving the Center for New Black Leadership, I transitioned 
from being a public policy advocate to being a regulatory attorney. I 
understand quite clearly that those two roles are very different. If I 
have the privilege of being confirmed, I am. sure the experiences I 
have had in these distinct arenas--as a public policy advocate and as 
an attorney advising a client--will make me a more effective law 
enforcement official in the Office for Civil Rights.
    If confirmed, my primary mission, as the head of the Office for 
Civil Rights will be to uphold the Constitution and enforce federal 
civil rights laws. One of the most significant, and in my mind 
successful, civil rights laws has been Title IX, which prohibits 
schools that receive federal funds from discriminating on the basis of 
sex.
                                title ix
    Before Title IX, schools and universities could, and did, treat men 
better than women. Many high schools routinely shepherded girls into 
courses such as home economics and typing, while boys were prepared for 
college and professional schools. This is inherently unfair. A system 
that distributes benefits and burdens on the basis of an individual's 
sex is a system that curtails freedom of choice.
                             disability law
    If confirmed, another of my duties will be to ensure that students 
with disabilities receive appropriate services so that they can achieve 
excellence in education. If we fail to help students with disabilities 
achieve their potential in our schools, we will be responsible for 
limiting their opportunities in life.
    Recently, I was horrified to learn how Freddy Ramirez was treated 
by a DC public school. Freddy was 9 year-old boy who was confined to a 
wheelchair. Because his elementary school had no accessible bathrooms, 
this young boy had to park his wheelchair at the door of the bathroom 
and then crawl across the filthy floor to reach a stall. This went on 
18 months until the school took action. These things must never be 
allowed. It is humiliating and degrading and unworthy of a nation 
committed to civic equality. And more simply, how is that young boy 
supposed to learn effectively in an environment like that?
    Congress enacted two landmark statutes, Section 504 of the 
Rehabilitation Act and Title II of the Americans with Disabilities Act. 
I am strongly committed to these laws, and to the President's New 
Freedom Initiative. In implementing that Initiative, President Bush has 
instructed his Administration to fully enforce the civil rights laws 
protecting people with disabilities.
    There is much work to do. Over 60 percent of all complaints filed 
with OCR concern disability-based discrimination. If confirmed, I will 
obey President Bush's directive, and enforce these statutes to the 
letter, so that kids like Freddy need face only the challenges of 
teachers and of tests, not of getting to a bathroom stall.
                                title vi
    If confirmed, I will vigorously enforce Title VI of the Civil 
Rights Act of 1964, which made the promise of the Fourteenth Amendment 
a reality, prohibiting discrimination based on race, color or national 
origin. The backlash against innocent Muslim and Arab students 
demonstrates the continued need for vigorous enforcement of our 
nation's civil rights laws. I join President Bush, Secretary Paige, and 
members of the Senate in their concern that the horrors of September 
11th do not lead to mistreatment of Arab-Americans. Racial 
discrimination and harassment have no place in our schools.
    While President of the Center for New Black Leadership, I supported 
affirmative action programs that promoted economic development of urban 
communities, improved the quality of education for disadvantaged 
students, and enhanced employment skills for young people entering the 
workforce. Along with President Bush and Secretary Paige, I support 
``affirmative access'' for all Americans. If confirmed, I will seek to 
promote affirmative action programs that are consistent with the 
Constitution and achieve the critical goal of leaving no child behind.
                               conclusion
    Mr. Chairman, I want to thank you and the members of this Committee 
for the opportunity you have given me to speak with you today. I am 
honored that President Bush has nominated me to serve as Assistant 
Secretary for Civil Rights. If confirmed, I will uphold Constitution 
and vigorously enforce this nation's civil rights laws. I am eager to 
begin that work with the Senate's consent; but for now, I look forward 
to your questions. Thank you.
    Senator Jeffords. The hearing will be held open for the purposes of 
record until Monday at midnight. That does not mean anything to you, it 
means something for us. That means we can throw a bunch of paper at 
somebody, so do not worry about it.
    Senator Sessions. Thank you, Mr. Chairman, and thank you, 
Mr. Reynolds.
    Senator Jeffords. The hearing is recessed.
    [Whereupon, at 5:16 p.m., the committee was adjourned.]