    [Senate Hearing 115-698]
    [From the U.S. Government Publishing Office]

                                                        S. Hrg. 115-698

                          DEPARTMENT OF EDUCATION AND
                        DEPARTMENT OF LABOR NOMINATIONS

    =======================================================================

                                    HEARING

                                     OF THE

                        COMMITTEE ON HEALTH, EDUCATION,
                              LABOR, AND PENSIONS

                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                       ON

      EXAMINING THE NOMINATIONS OF KENNETH L. MARCUS, OF VIRGINIA, TO BE
    ASSISTANT SECRETARY FOR CIVIL RIGHTS, AND JOHNNY COLLETT, OF KENTUCKY,
      TO BE ASSISTANT SECRETARY FOR SPECIAL EDUCATION AND REHABILITATIVE
     SERVICES, BOTH OF THE DEPARTMENT OF EDUCATION, AND SCOTT A. MUGNO, OF
       PENNSYLVANIA, TO BE AN ASSISTANT SECRETARY, AND WILLIAM BEACH, OF
    KANSAS, TO BE COMMISSIONER OF LABOR STATISTICS, BOTH OF THE DEPARTMENT
                                    OF LABOR

                                   __________

                                DECEMBER 5, 2017

                                   __________

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

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    27-829 PDF                  WASHINGTON : 2019

    --------------------------------------------------------------------------------------

              COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                      LAMAR ALEXANDER, Tennessee, Chairman
    MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington, Ranking Member
    RICHARD BURR, North Carolina		BERNARD SANDERS (I), Vermont
    JOHNNY ISAKSON, Georgia			ROBERT P. CASEY, JR., Pennsylvania
    RAND PAUL, Kentucky			AL FRANKEN, Minnesota
    SUSAN M. COLLINS, Maine			MICHAEL F. BENNET, Colorado
    BILL CASSIDY, M.D., Louisiana		SHELDON WHITEHOUSE, Rhode Island
    TODD YOUNG, Indiana			TAMMY BALDWIN, Wisconsin
    ORRIN G. HATCH, Utah			CHRISTOPHER S. MURPHY, Connecticut
    PAT ROBERTS, Kansas			ELIZABETH WARREN, Massachusetts
    LISA MURKOWSKI, Alaska			TIM KAINE, Virginia
    TIM SCOTT, South Carolina		MARGARET WOOD HASSAN,
                                             New Hampshire

                   David P. Cleary, Republican Staff Director
             Lindsey Ward Seidman, Republican Deputy Staff Director
                     Evan Schatz, Democratic Staff Director
                 John Righter, Democratic Deputy Staff Director

                                C O N T E N T S

                                  ----------

                                   STATEMENTS

                           TUESDAY, DECEMBER 5, 2017

                                                                       Page

                               Committee Members

    Alexander, Hon. Lamar, Chairman, Committee on Health, Education,
      Labor, and Pensions, opening statement.........................     1
    Murray, Hon. Patty, a U.S. Senator from the State of Washington,
      opening statement..............................................     4
    Murphy, Hon. Christopher, a U.S. Senator from the State of
      Connecticut....................................................    20
    Collins, Hon. Susan M., a U.S. Senator from the State of Maine...    22
    Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    26
    Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    28
    Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana...    30
    Hassan, Hon. Margaret Wood, a U.S. Senator from the State of New
      Hampshire......................................................    32
    Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
      Pennsylvania...................................................    34
    Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
      Island.........................................................    36
    Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin..    37
    Kaine, Hon. Tim, a U.S. Senator from the State of Virginia.......    39
    Warren, Hon. Elizabeth, a U.S. Senator from the State of
      Massachusetts..................................................    41

                                   Witnesses

    Statement of Kenneth Marcus, nominated to be Assistant Secretary
      for Civil Rights, Department of Education, Leesburg, VA........     7
        Prepared statement...........................................     9
    Statement of Johnny Collett, nominated to be Assistant Secretary
      for Special Education and Rehabilitative Services, Department
      of Education, Georgetown, KY...................................    10
        Prepared statement...........................................    12
    Statement of Scott Mugno, nominated to be Assistant Secretary of
      Labor for the Occupational Safety and Health Administration,
      Department of Labor, Moon Township, PA.........................    13
        Prepared statement...........................................    14
    Statement of William Beach, Ph.D., nominated to be Commissioner
      of Labor Statistics, Department of Labor, Alexandria, VA.......    15
        Prepared statement...........................................    17

                              Additional Material

    Statements, articles, publications, letters, etc.
        Burned--A Journal Sentinel Watchdog Report...................    52
        Letters of Support for Kenneth Marcus........................   134
        Letters of Support for Johnny Collett........................   151
        Letters of Support for Scott Mugno...........................   158
        Letters of Support for William Beach.........................   168

                             Questions and Answers

    Response by William Beach to questions of:
        Senator Alexander............................................   173
        Senator Scott................................................   173
        Senator Young................................................   173
        Senator Murkowski............................................   174
        Senator Murray...............................................   175
        Senator Whitehouse...........................................   178
        Senator Warren...............................................   179
        Senator Kaine................................................   180
    Response by Johnny Collett to questions of:
        Senator Murray...............................................   181
        Senator Sanders..............................................   191
        Senator Casey................................................   192
        Senator Bennet...............................................   193
        Senator Whitehouse...........................................   194
        Senator Murphy...............................................   195
        Senator Kaine................................................   195
        Senator Hassan...............................................   197
        Senator Hatch................................................   197
        Senator Collins..............................................   198
    Response by Kenneth Marcus to questions of:
        Senator Murray...............................................   198
        Senator Sanders..............................................   207
        Senator Casey................................................   208
        Senator Bennet...............................................   210
        Senator Whitehouse...........................................   211
        Senator Baldwin..............................................   212
        Senator Murphy...............................................   213
        Senator Warren...............................................   213
        Senator Kaine................................................   218
        Senator Hassan...............................................   220
        Senator Murkowski............................................   220
        Senator Hatch................................................   221
    Response by Scott Mugno to questions of:
        Senator Murray...............................................   222
        Senator Whitehouse...........................................   230
        Senator Baldwin..............................................   230
        Senator Warren...............................................   231
        Senator Hatch................................................   235

                          DEPARTMENT OF EDUCATION AND.
                        DEPARTMENT OF LABOR NOMINATIONS

                                  ----------

                           Tuesday, December 5, 2017

                                           U.S. Senate,
           Committee on Health, Education, Labor, and Pensions,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10 a.m. in room
    SD-430, Dirksen Senate Office Building, Hon. Lamar Alexander,
    Chairman of the Committee, presiding.
        Present: Senators Alexander [presiding], Isakson, Collins,
    Cassidy, Young, Murray, Casey, Franken, Bennet, Whitehouse,
    Baldwin, Murphy, Warren, Kaine, and Hassan.

                     Opening Statement of Senator Alexander

        The Chairman. The Senate Committee on Health, Education,
    Labor, and Pensions will please come to order.
        This morning, we are holding a confirmation hearing on Ken
    Marcus, nominated to serve as Assistant Secretary for Civil
    Rights at the Department of Education; Johnny Collett,
    nominated to serve as Assistant Secretary for Special Education
    and Rehabilitative Services at the Department of Education;
    Scott Mugno, nominated to serve as Assistant Secretary of Labor
    for Occupational Safety and Health at the Department of Labor;
    Dr. William Beach, nominated to serve as Commissioner of Labor
    Statistics at the Department of Labor.
        Senator Murray and I will each have an opening statement,
    and then we will introduce the nominees. After their testimony,
    Senators will each have an opportunity to ask the nominees 5
    minutes of questions.
        We have a competing hearing today with the Appropriations
    Committee on these same issues. We are both Members of the
    Subcommittee and Senator Murray is the Ranking Member, so for
    some of this time, we will be going back and forth.
        In a hearing in 2014, I had this exchange with the former
    Assistant Secretary for Civil Rights at the Department of
    Education, Catherine Lhamon.

            ``Alexander: Ms. Lhamon, you talk about something
            called guidance, and I have here about 66 pages of
            guidance under Title IX. Do you expect institutions to
            comply with your Title IX guidance documents?''
            ``Lhamon: We do.''
            ``Alexander: You do? What authority do you have to do
            that? Why do you not go through the same process of
            public comment that the [Department of Education] is
            going through under the Clery Act?''
            ``Lhamon: Well, we would if there were regulatory
            changes.''
            ``Alexander: Why are there not regulatory changes? You
            require 6,000 institutions to comply with this,
            correct?''
            ``Lhamon: We do.''

        The problem with that exchange is that guidance documents
    are not law.
        Laws are created by this Congress, or in some cases, the
    Department of Education may issue regulations within the
    authority that Congress has granted, and an agency must follow
    proper procedures that include public comment when it issues
    regulations.
        Public comment is especially important when issues are
    complex and have a great deal of difference of opinions. This
    certainly is true on the issue of the standard of proof
    colleges must use when investigating allegations of sexual
    misconduct.
        In April 2011, the Education Department had issued guidance
    under Title IX that told colleges for the first time the
    standard of proof that must be used when investigating these
    allegations.
        I was glad to see Secretary DeVos end this overreach and
    recognize the difference between the law and guidance, and
    announce that the Department will conduct the proper public
    rulemaking process to hear from students, college
    administrators, and others to help schools protect the safety
    and rights of all students.
        The Office for Civil Rights has the important
    responsibility of ensuring that Title IX and other civil rights
    laws, and the protections they provide to all students, are
    fully enforced.
        If confirmed, Mr. Marcus, I hope you will also recognize
    the difference between the law, which is binding, and guidance,
    which is not.
        Mr. Marcus, you have a deep understanding of civil rights
    issues, having founded the Louis D. Brandeis Center for Human
    Rights Under Law and having served as Staff Director of the
    United States Commission on Civil Rights for 4 years. You also
    led the Office for Civil Rights at the Department of Education
    under President George W. Bush for a period of time when it did
    not have a confirmed official in that office.
        I have letters from 13 individuals and organizations who
    support your nomination to lead the Office for Civil Rights,
    including the Hillel organization, the largest Jewish campus
    organization in the world. That organization said to us, ``Mr.
    Marcus has been a longtime champion for civil rights and for
    college students. We have worked personally with him on several
    campuses across the country in response to specific issues of
    bigotry and discrimination, and we have found him to be
    extremely skilled and knowledgeable in civil rights laws. Mr.
    Marcus has been a true leader in fighting discrimination.''
        I ask unanimous consent to insert the letters into the
    record, which they will be.
        The Chairman. You were nominated on October 30. On November
    8, the Committee received your Office of Government Ethics
    paperwork, including your public financial disclosure and
    ethics agreement. On November 28, we received your Committee
    paperwork.
        Now, Mr. Collett, five organizations support your
    nomination as a result of your long history in special
    education.
        I ask consent to insert those statements and letters into
    the record, which they will be.
        The Chairman. Mr. Collett, you have been a high school
    special education teacher. You have served as Director of the
    Division of Learning Services at the Kentucky Department of
    Education. Your current role is Director of Special Education
    Outcomes at the Council of Chief State School Officers.
        You also previously served on the Board of Directors of the
    National Association of State Directors of Special Education.
    The Association applauded you for having, ``Worked with
    stakeholders in the disability community at the local, state,
    and national levels.''
        You were nominated on November 16. On November 28, the
    Committee received your paperwork. On November 29, we received
    your Office of Government Ethics paperwork, including your
    public financial disclosure and ethics agreement.
        Today, we also are considering two nominees for the
    Department of Labor.
        The first is Scott Mugno, to serve as Assistant Secretary
    of Labor for Occupational Safety and Health at the Department
    of Labor.
        The position is especially interesting to me because in the
    early 1970's, my father received a call from Tennessee Governor
    Winfield Dunn, who asked him to be a Commissioner on the first
    Tennessee Occupational Safety and Health Review Commission. At
    the time, my dad was the safety director at the smelting plant
    in Alcoa, Tennessee.
        I grew up seeing my father's pride when the plant went a
    long number of days without an accident, which instilled in me
    the importance of workplace safety.
        You can imagine, therefore, I have a lot of respect for
    your experience at FedEx, where you currently serve as the Vice
    President for Safety, Sustainability, and Vehicle Maintenance
    for FedEx Ground in Pittsburgh.
        You have held legal positions at FedEx Express,
    Westinghouse, and the U.S. Army JAG Corps.
        Of special note, you have had the good judgment to live in
    Memphis for 18 years----
        [Laughter.]
        The Chairman ----where you and your wife raised your two
    daughters.
        You were nominated on November 1. On November 13, the
    Committee received your paperwork; on November 14, your
    Government Ethics paperwork, including your public financial
    disclosure and ethics agreement.
        Mr. Mugno, I have two letters and statements from five
    organizations in support of your nomination that I would like
    to have included in the record, and I ask consent that they be
    included.
        The Chairman. Finally, as Commissioner of Labor Statistics,
    Dr. Beach, you will oversee the Bureau that is responsible for
    collecting and publishing the data that tells us how our
    economy is doing, including the unemployment rate and changes
    in consumer prices.
        As fewer people have landlines, and more use cell phones
    and social media to communicate, it is getting harder to reach
    people in order to obtain these figures.
        There is also the challenge of how do you engage with the
    public on these important figures without seeming like we are
    cherry picking the best results?
        Data itself is nonpartisan, and at the Bureau, you will be
    leading an agency that collects data and does not make policy.
        I hope you will have an opportunity at this hearing to tell
    us how you plan to adapt to these challenges when you release
    the data gathered through the Household and Community Surveys.
        Dr. Beach, you are well equipped to lead this organization
    and meet these challenges. You have been Chief Economist for
    the Senate Budget Committee from 2013 to January 2016. You were
    Director at the Center for Data Analysis at the Heritage
    Foundation prior to that. Currently, you are Vice President for
    Policy Research at the Mercatus Center at George Mason
    University.
        You were nominated on October 24. On October 28, we
    received your Ethics paperwork. On November 21, we received
    your Committee paperwork.
        Dr. Beach, I have received three letters of support for
    your nomination that I would like to have included in the
    record, and they will be.
        The Chairman. Thanks to all of you for your willingness to
    serve. I look forward to hearing from our nominees.
        Senator Murray.

                      Opening Statement of Senator Murray

        Senator Murray. Well, thank you very much, Chairman
    Alexander.
        Thank you to all of our nominees for being here and for
    your willingness to serve in these important roles at the
    Department of Education and Labor.
        You all will be responsible for fighting for our students,
    our workers, and our families even as we have watched this
    President actively working to undermine the middle class'
    access to opportunity and their financial security.
        For me, one of the most appalling ways President Trump has
    damaged our country is when it comes to civil rights and
    undermining the rights and safety of women, people of color,
    and people with disabilities.
        First of all, this should not be a surprise. There are some
    areas where President Trump has broken his promises. I will
    talk about those in a bit. But this is one where he has
    actually kept them.
        This is a President who kicked off his campaign by calling
    Mexicans criminals, who called for a ban on all Muslims coming
    to America, who openly ridiculed a journalist with a
    disability, who has openly demeaned women, who defended white
    supremacists rallying in Charlottesville by saying they were,
    quote, ``Many fine people among them,'' and sadly more.
        This is an Administration that has worked every day to
    implement the vision of their leader, especially in education,
    rolling back protections for transgender students, revoking
    Title IX guidance that protects women and helps bring
    perpetrators of sexual assault to justice, halting
    investigations into systemic discrimination, and again, the
    list goes on.
        Two of the nominees here today to lead the Office for Civil
    Rights and the Special Education and Rehabilitation Services
    will be in a position to continue those appalling policies,
    make them worse, or work with us to begin to reverse the
    damage. I am looking forward to hearing more today about which
    direction they plan to go.
        Now, those are some of the promises that President Trump
    kept, but now, let us talk about some of the promises he has
    broken.
        After more than a year on the campaign trail of telling
    workers he would put them first, the Trump administration has
    done the exact opposite and prioritized corporations' profits
    over their employees.
        He has refused to defend an Obama administration overtime
    rule that would have ensured four million people, who work more
    than 40 hours a week, are paid what they deserve.
        He allowed companies to continue to receive Federal
    contracts paid with taxpayer money regardless of a company's
    record on wage and safety violations.
        He has weakened health and safety protections for our
    workers, opening the door for companies to put their employees'
    lives and livelihoods at risk to maximize profits.
        Instead of using empirical data to make decisions about the
    economy, he has denied facts and, at times, lied about our
    Nation's job numbers.
        These positions within the Department of Labor, the
    Occupational Safety and Health Administration, and the Bureau
    of Labor Statistics Commissioner cannot continue this harmful
    pattern and must, instead, rely on data for accurate
    information to prioritize workers and our middle class.
        There is a lot at stake here and I would like to go through
    what I would like to hear from each of you today.
        First, Mr. Marcus, you have been nominated to lead the
    Department of Education's Office for Civil Rights. OCR
    describes their mission as to, quote, ``Ensure equal access to
    education and to promote educational excellence throughout the
    Nation through vigorous enforcement of civil rights.''
        Unfortunately, this Administration has been moving in the
    opposite direction, and I have made it very clear, I believe
    the current Acting Assistant Secretary, Candice Jackson, should
    be removed from her position.
        Not just because of the callous, and insensitive, and
    egregious comments she made regarding sexual assault on college
    campuses. But also because of the way she has worked to narrow
    the role of that office, back away from progress made to
    protect transgender students, take away tools and resources it
    has to protect students, and move it away from that core
    mission I just stated.
        I am very glad Secretary DeVos decided to nominate someone
    else to replace Ms. Jackson. However, the Department has
    refused to answer our inquiries on a number of troubling civil
    rights decisions including the decision to guidance that
    clarifies transgender students' rights.
        Mr. Marcus, you and I both share the goal of halting
    discrimination on the basis of race, ethnicity, or religion on
    college campuses, which is certainly an issue OCR will face in
    light of increased incidents of hateful rhetoric and violence
    occurring on campuses and in schools.
        However, I do have concerns about your ability to stand up
    to President Trump and DeVos, and do the right thing for our
    students, which is something I plan to ask you about today.
        Second, Mr. Collett, during her confirmation hearing in
    this very room, Secretary DeVos did not seem to understand that
    IDEA is Federal law and thought that states should get to
    decide whether or not they are living up to the promise of
    IDEA.
        The role you have been nominated for is responsible for
    improving education and employment opportunities for students
    with disabilities. However, during your time at the Kentucky
    Department of Education, the state was actually criticized for
    allowing frequent use of seclusion and restraint in schools
    often used on students with disabilities. Only after public
    outcry and work from the Protection and Advocacy Agency did
    Kentucky take steps to address that.
        Additionally, you told my staff, you support Secretary
    DeVos' privatization agenda, which includes a $20 billion
    school voucher program proposal. Voucher proposed programs do
    not support all of the needs of students with disabilities.
        I hope to hear from you today whether you will be willing
    to commit to protecting students and to standing up to the
    Secretary if she creates confusion or takes misguided steps for
    students with disabilities.
        Mr. Mugno, OSHA's mission statement is to, quote, ``Assure
    safe and healthful working conditions for working men and women
    by setting and enforcing standards, and providing training,
    outreach, education, and assistance.''
        As a member of the Chamber of Commerce's leadership, you
    fought against new OSHA safety rules and led efforts to
    undermine their enforcement abilities. During your time at
    FedEx, there have been a number of employee deaths, including
    just 2 weeks ago on Thanksgiving.
        I am concerned about your record that stands against
    everything OSHA should stand for. I have major concerns about
    whether you will stand up to workers or side with corporations,
    and I will ask you about that today.
        Finally, Dr. Beach, President Trump not only routinely
    ignores factual information and spreads misinformation, but has
    explicitly questioned the validity of BLS jobs numbers when
    they were not in his favor.
        If, or when, the economy begins to decline, I hope you will
    not succumb to political pressure and put data and statistics
    ahead of the President's ego.
        Students, workers, and families are counting on all four of
    you to stand up to the President and harmful policies. I look
    forward to hearing from each of you today on whether or not you
    plan to do that.
        As the Chairman indicated, we both have competing hearings
    today. I am the Ranking Member on an Appropriations Committee
    that is meeting right now too. I have read all of your
    statements and I will go down to the Committee hearing, and
    come back in time for questions.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Murray.
        I am pleased to welcome our four nominees. I thank you for
    offering to serve our country. Each nominee will have up to 5
    minutes for summarizing your remarks, and then we will go to a
    5 minute round of questions.
        I have introduced each of the nominees pretty well in my
    opening statement, so I will do it briefly now.
        Ken Marcus is the first nominee. He is joined today by his
    wife and daughter, and other members of his family. We welcome
    you, as we do other family members today.
        As President and General Counsel of the Louis D. Brandeis
    Center for Human Rights Under Law, Mr. Marcus has worked to
    accomplish the Center's mission of, ``Advancing the civil and
    human rights of the Jewish people and promoting justice for
    all.''
        Johnny Collett's wife, Jennifer, is with him today. We
    welcome you. Mr. Collett's current role as Director of Special
    Education Outcomes, the Council of Chief States School Officers
    has given him many opportunities to focus on helping states
    improve outcomes and set high expectations for students with
    disabilities.
        Joining Scott Mugno today are his wife and mother, and
    other members of this family. Welcome to you.
        Mr. Mugno has worked for FedEx since 1994 and held a
    variety of positions working to ensure workers' safety. During
    his time at FedEx, Mr. Mugno has twice received the company's
    highest honor, the Five Star Award for his safety leadership.
        Our last nominee is William Beach. He is joined today by
    friends in the audience. Welcome to all of them.
        Like I said in my opening statement, Dr. Beach has a wealth
    of experience in economics and data analytics.
        Welcome to all of our witnesses.
        Mr. Marcus, you may begin your testimony.

                      STATEMENT OF KENNETH MARCUS

        Mr. Marcus. Thank you.
        Mr. Chairman, Ranking Member Murray, and Members of this
    Committee.
        It is an honor to appear before you today as the nominee
    for the position of Assistant Secretary for Civil Rights, U.S.
    Department of Education. I would like to thank President Trump
    for nominating me and Secretary DeVos for her support.
        I am also grateful for the hardworking professionals with
    whom I had the opportunity to work during my prior tenure with
    the U.S. Department of Education's Office for Civil Rights.
    They have dedicated themselves to the principle of equal access
    to education and to promoting educational excellence through
    vigorous enforcement of civil rights.
        Finally, I would like to acknowledge my gratitude to the
    teachers, mentors, colleagues, family and friends who have
    helped me along the way, especially my wife Stephanie and
    daughter Shoshana who, as you indicated Mr. Chairman, are both
    here with me today, together with my sister Bonita Moore and
    her husband Garrett Moore.
        At her confirmation hearing, Secretary DeVos described her
    view that, ``Every child in America deserves to be in a safe
    environment that is free from discrimination.'' She has
    subsequently emphasized that, ``Educational institutions have a
    responsibility to protect every student's right to learn in a
    safe environment and to prevent unjust deprivations of that
    right.''
        I share those objectives, and it would be a great honor to
    join Secretary DeVos at the Department of Education and work to
    carry them out.
        Should I be granted the honor of confirmation to the
    position of Assistant Secretary for Civil Rights, I would bring
    to the position legal, management, and civil rights experience
    developed over a 25-plus year career as a civil rights lawyer,
    university instructor, think tank executive, former Education
    Department employee, and most recently, as Founder and
    President of the Louis D. Brandeis Center for Human Rights
    Under Law.
        While I was delegated the authority of Assistant Secretary
    for Civil Rights, OCR issued policy guidance reminding
    universities and colleges, as well as public elementary and
    secondary school leaders, of their obligation to establish
    Title IX grievance procedures and coordinators.
        This was important because we had found in the course of
    our compliance reviews that several recipients were failing to
    secure the rights of their students under Title IX.
        OCR also issued policy guidance, during my tenure,
    clarifying the rights of Jewish, Sikh, Muslim, and other
    religious minority students from discrimination on the basis of
    their ethnicity or national origin. No student at a federally
    assisted school or college should face this form of
    discrimination or harassment. This is a subject on which I have
    continued to dedicate a significant portion of my time since
    leaving the Government.
        In addition, working with OCR's career professionals, I
    expanded OCR's program of proactive compliance reviews.
        For example, I devoted considerable effort to a nationwide
    enforcement initiative to ensure that racial and ethnic
    minority students and English language learners were not
    inappropriately placed in special education programs that were
    unsuitable to their needs. We were particularly concerned that
    some of these children simply lacked access to research-based
    reading programs, and their inability to read led to erroneous
    placements for them.
        I also oversaw a nationwide enforcement initiative to
    eliminate barriers to access for post secondary students with
    disabilities. Areas of focus for these compliance reviews
    included accessibility to residence halls, classrooms, and
    academic buildings.
        I am honored by the possibility of returning to public
    service, because I can think of no higher calling than to
    enforce the principles of equal justice, and to provide greater
    opportunities for students across this great country.
        If my nomination is confirmed, I would approach this
    position with abiding respect for OCR; with deep respect for
    the agency's role, responsibilities, and limitations within the
    constitutional structure; and with profound appreciation of the
    weighty responsibilities that come with serving our Nation's
    families, children, and learners in this way.
        I would work to strengthen OCR, to preserve civil rights,
    to seek equal justice for all, to respect the rule of law, and
    to promote public confidence. The Members of this Committee are
    critically important partners in pursuing those goals.
        Again, I thank you for considering my nomination, and for
    giving me the opportunity to appear before you. I look forward
    to answering any questions that you might have.
        [The prepared statement of Mr. Marcus follows:]

                                    ------

                      prepared statement of kenneth marcus
        Chairman Alexander, Ranking Member Murray, and Members of this
    Committee:
        It is an honor to appear before you today as the nominee for the
    position of Assistant Secretary for Civil Rights, U.S. Department of
    Education. I would like to thank President Trump for nominating me and
    Secretary DeVos for her support.
        I am also grateful for the hardworking professionals with whom I
    had an opportunity to work during my prior tenure with the U.S.
    Department of Education's Office for Civil Rights (OCR). They have
    dedicated themselves to the principle of equal access to education and
    to promoting educational excellence through vigorous enforcement of
    civil rights.
        Finally, I would like to acknowledge my gratitude to the teachers,
    mentors, colleagues, family, and friends who have helped me along the
    way, especially my wife Stephanie and daughter Shoshana, who are both
    here with me today, together with my sister Bonita Moore and her
    husband Garrett Moore.
        At her confirmation hearing, Secretary DeVos described her view
    that, ``Every child in America deserves to be in a safe environment
    that is free from discrimination.'' She has subsequently emphasized
    that ``educational institutions have a responsibility to protect every
    student's right to learn in a safe environment and to prevent unjust
    deprivations of that right.'' I share those objectives, and it would be
    a great honor to join Secretary DeVos at the Department of Education
    and work to carry them out.
        Should I be granted the honor of confirmation to the position of
    Assistant Secretary for Civil Rights, I would bring to the position
    legal, management, and civil rights experience developed over a 25+
    year career as a civil rights lawyer, university professor, think tank
    executive, former Education Department employee, and most recently as
    founder and president of The Louis D. Brandeis Center for Human Rights
    Under Law.
        While I was delegated the authority of Assistant Secretary for
    Civil Rights, OCR issued policy guidance reminding universities and
    colleges, as well as public elementary and secondary school leaders, of
    their obligation to establish Title IX grievance procedures and
    coordinators. This was important because we had found, in the course of
    our compliance reviews, that several recipients were failing to secure
    the rights of their students under Title IX.
        OCR also issued policy guidance, during my tenure, clarifying the
    rights of Jewish, Sikh, Muslim, and other religious minority students
    from discrimination on the basis of their ethnicity or national origin.
    No student at a federally assisted school or college should face this
    form of discrimination or harassment. This is a subject on which I have
    continued to dedicate a significant portion of my time since leaving
    the government.
        In addition, working with OCR's career professionals, I expanded
    OCR's program of proactive compliance reviews. For example, I devoted
    considerable effort to a nationwide enforcement initiative to ensure
    that racial and ethnic minority students and English language learner
    students were not inappropriately placed in special education programs
    that were unsuitable to their needs. We were particularly concerned
    that some of these children simply lacked access to research-based
    reading programs, and their inability to read led to erroneous
    placements for them.
        I also oversaw a nationwide enforcement initiative to eliminate
    barriers to access for post secondary students with disabilities. Areas
    of focus for these compliance reviews included accessibility to
    residence halls, classrooms and academic buildings.
        I am honored by the prospect of returning to public service,
    because I can think of no higher calling than to enforce the principles
    of equal justice and provide greater opportunities for students across
    this great country.
        If my nomination is confirmed, I will approach this position with
    abiding respect for OCR; with deep respect for the agency's role,
    responsibilities, and limitations within the constitutional structure;
    and with profound appreciation of the weighty responsibilities that
    come with serving our nation's families, children, and learners in this
    way. I will work to strengthen OCR; to preserve civil rights; to seek
    equal justice for all; to respect the rule of law; and to promote
    public confidence. The Members of this Committee are critically
    important partners in pursuing those goals.
        Again, I thank you for considering my nomination and for giving me
    the opportunity to appear before you. I look forward to answering any
    questions that you might have.

                                     ______

        The Chairman. Thank you, Mr. Marcus.
        Mr. Collett, welcome.

                      STATEMENT OF JOHNNY COLLETT

        Mr. Collett. Chairman Alexander, Ranking Member Murray, and
    Members of the Committee.
        I am humbled by the President's nomination and grateful for
    the Secretary's trust. If confirmed by this Committee, I am
    eager and excited to serve the millions of children, youth, and
    adults with disabilities in our country as the Assistant
    Secretary for the Office of Special Education and
    Rehabilitative Services.
        I am thankful for the support that this nomination has
    received from many national organizations, former colleagues,
    teachers, principals, parents, and families who work every day
    to improve outcomes for individuals with disabilities.
        I want this Committee to know that I hold that in trust and
    will work as hard, as strategically and as collaboratively, as
    possible to ensure that we deliver on the promises that we have
    made to children, families, and individuals with disabilities
    in this country.
        The mission of the office for which I have been nominated
    is to, ``Improve early childhood, educational, and employment
    outcomes and raise expectations for all people with
    disabilities, their families, their communities, and the
    Nation.'' This mission is consistent with what I believe. It is
    consistent with how I have led and it is consistent, frankly,
    with who I am.
        Before I get into other comments that I am thankful to
    share with you today, I would like to tell you about an
    encounter that I had recently in a store in our hometown.
        While in a checkout lane, I heard someone call my name from
    across the store. I turned and immediately recognized the
    individual as one of my former students. We shared updates
    about our lives, and just generally got caught up, and had a
    brief conversation.
        But when I got in the car, I mentioned something to my wife
    that I would like to share with this Committee today at the
    beginning of these proceedings.
        What stood out to me the most about seeing my former
    student is that he appeared happy, proud of what he had
    accomplished, and clearly confident about his future.
        Now, I expect that we will talk about a number of things
    today, and I am looking forward to responding to your
    questions. But I want to be honest about something from the
    beginning.
        Regardless of the particular matters that we will discuss
    or the specific issues at hand, the lens through which I will
    seek to process, and understand, and respond to your questions
    will be that of the child, the student, the adult with a
    disability, and what will ensure that they have an equitable
    opportunity to be successful.
        While it is true that we all, individually and as a Nation,
    have a stake in the success of children, youth, and adults with
    disabilities, no one has more of a stake in their lives than
    they do. This will be my lens today, and each day that I serve
    in this role, if confirmed.
        Before I began my career as an educator, I was a church
    pastor for 10 years. While a different role, to be sure, during
    those years. I believe that is where my commitment to
    individuals, their particular strengths and needs, and the
    supports that we could help them achieve the success that they
    envisioned were really firmly established. This commitment
    continued to be shaped as I began my public education career.
        I came into the teaching profession through an alternative
    route. In fact, I began my career as a teacher as an emergency
    certified teacher. I quickly achieved full certification and
    have continued since then to be guided by a growing, and what
    has become an intense, focus on individuals with disabilities
    and their families. Their strengths, their needs, and how we
    best support them to achieve the outcomes that we, and most
    importantly they, envision.
        I am proud of the work I did as a high school special
    education teacher in Kentucky, the work I then had the pleasure
    to lead as the State Director for special education in
    Kentucky, and the work I have most recently led as Director for
    Special Education Outcomes at the Council of Chief State School
    Officers.
        But if I may, Mr. Chairman, what I am most proud of is to
    be my wife's husband, my children's father, my parents' son,
    and my brother's brother. From my view, the extent to which I
    have been, or will be, successful will be measured most
    importantly by my faithfulness to God and, as a result, my
    faithfulness to them.
        Through all of the work I have been honored to lead, I have
    demonstrated a commitment to raising expectations and improving
    outcomes for individuals with disabilities and their families.
    Collaborating meaningfully and effectively with any and all who
    have a stake in their success. If confirmed, I will continue to
    demonstrate these commitments.
        To summarize, while the challenges and opportunities we
    face are complex, my philosophy is pretty simple. I believe
    that all children, youth, and adults with disabilities in this
    country deserve an equitable opportunity to be successful.
        But there is only one way for all to mean ``all''. The only
    way for all to mean ``all'' is that it has to mean ``each''. To
    ensure that each child, and each youth, and each adult with a
    disability has equitable access to the opportunities they need
    to be successful, requires that we must have different, deep,
    and sometimes difficult conversations.
        Perhaps I am being naive, but I believe we can do that, and
    do it effectively, in service to individuals and families
    across this country.
        It is my view that the kids we run into at the store, or
    wherever, deserve nothing less from the adults who are charged
    with their care and the ones who have promised to help prepare
    them for life after they leave our systems of education.
        Thank you for your time, and thank you for the opportunity
    to be here, and I look forward to answering your questions.
        [The prepared statement of Mr. Collett follows:]
                                    ------

                      prepared statement of johnny collett
        Thank you, Chairman Alexander, Ranking Member Murray, and Members
    of the Committee. I am humbled by the President's nomination and
    grateful for the Secretary's trust. If confirmed, I am eager to serve
    our Nation's millions of children, youth, and adults with disabilities
    and their families as Assistant Secretary for the Office of Special
    Education and Rehabilitative Services (OSERS).
        I am thankful for the support this nomination has received from
    many national organizations, current and former colleagues, teachers,
    principals, parents and families who work every day to improve outcomes
    for individuals with disabilities. I hold this in trust and will work
    as hard, as strategically, and as collaboratively as I can to ensure
    that we deliver on the promises we have made to individuals and
    families in this country.
        The mission of the office which I have been nominated to lead is to
    ``improve early childhood, educational, and employment outcomes and
    raise expectations for all people with disabilities, their families,
    their communities, and the Nation.'' This mission is consistent with
    what I believe, how I have led, and, frankly, who I am.
        Before I get into other comments that I'm thankful to have the
    opportunity to share with you today, I would like to tell you about an
    encounter I had recently at a local store in our hometown. While in the
    check-out lane, I heard someone call my name from across the store.
    When I turned, I immediately recognized the individual as one of my
    former students. We shared updates about our lives, and had a good,
    though brief conversation. When I got in the car, I mentioned something
    to my wife that I would like to share with you at the beginning of
    these proceedings. What stood out the most to me about seeing my former
    student that day, is that he appeared happy, proud of what he had
    accomplished, and clearly confident about his future.
        Now, I expect that we will talk about a number of things today, and
    I'm looking forward to responding to your questions. But I want to be
    honest about something from the beginning . . . Regardless of the
    particular matters at hand or the specific issues that we may discuss,
    the lens through which I will process and respond to your questions
    will be that of the child, the student, or the adult with a disability,
    and what will ensure that they have an equitable opportunity to be
    successful. While we all--individually and as a nation--have a stake in
    the success of children, youth, and adults with disabilities, no one
    has more of a stake in their success than they do. This will be my lens
    today, and each day that I serve in this role, if confirmed.
        Before I began my career as an educator, I was a church pastor for
    about 10 years. While a different role, to be sure, it was during those
    years that my commitment to individuals, their particular strengths and
    diverse needs, and the supports that would help them achieve the life
    they envisioned, was firmly established. That commitment continued to
    be shaped as I began my career in public education. I came into the
    teaching profession through an alternative route. In fact, I began my
    education career as an emergency certified teacher. I quickly achieved
    full certification and have continued since then to be guided daily by
    a growing and intense focus on individuals with disabilities and their
    families, their strengths and needs, and how we best support them to
    achieve the outcomes that we, and most importantly they, envision.
        I'm proud of the work I did as a high school special education
    teacher, the work I then had the pleasure to lead as the state director
    for special education in Kentucky, and the work I have most recently
    led as the director for special education outcomes at the Council of
    Chief State School Officers. But, if I may, what I am most proud of is
    to be my wife's husband, my children's father, my parents' son, and my
    brother's brother. From my view, the extent to which I have been, or
    will be successful, will be measured most importantly by my
    faithfulness to God and, as a result, my faithfulness to them.
        Through all of the work I have been honored to lead, I have
    demonstrated a commitment to raising expectations and improving
    outcomes for children, youth, and adults with disabilities, and to
    collaborating meaningfully and effectively with any and all who have a
    stake in their success. If confirmed, I will continue to demonstrate
    these commitments.
        To summarize, while the challenges and opportunities we face are
    complex, my philosophy is pretty simple. I believe that ALL children,
    youth, and adults with disabilities in this country deserve an
    equitable opportunity to be successful in school and beyond. But there
    is only one way for all to mean ``all''. For all to mean ALL, it has to
    mean EACH. To ensure that each child, each youth, and each adult with a
    disability has equitable access to the opportunities, resources, and
    supports they need to be successful, requires that we must have
    different, deep, and sometimes difficult conversations. Perhaps I'm
    being naive, but I believe we can do that, and do it effectively, in
    service to individuals with disabilities and their families.
        It is my view that the kids we run into at the store, or wherever,
    deserve nothing less from the adults who are charged with their care
    and who have promised to help prepare them for life after they leave
    our system of education.
                                     ______

        The Chairman. Thank you, Mr. Collett.
        Mr. Mugno, welcome.

                        STATEMENT OF SCOTT MUGNO

        Mr. Mugno. Thank you, Mr. Chairman, Ranking Member Murray,
    and distinguished Members of the Committee.
        I appreciate your valuable time in conducting this hearing.
        It is an honor to be here as President Donald J. Trump's
    nominee for Assistant Secretary of Labor for the Occupational
    Safety and Health Administration. I thank the President for the
    nomination and Secretary Alexander Acosta for his
    recommendation and support.
        Of course, I thank my family members, friends, and
    colleagues who are here today or watching today's hearing for
    their support and love.
        In particular, with me here today is my best friend and
    wife of 34 years, Sharon Bedell Mugno. Our life's journey has
    been amazing and much of that is because of her. Our two
    daughters and son-in-law were unable to attend today, but
    Madeline and Will Boulware and Kaitlin Mugno are watching and
    here in spirit.
        Nothing was going to stop Marilyn Mugno, my mother, from
    traveling from Cape Cod to be here today. I want to thank my
    sister Cheryl Mugno and brother-in-law William Trompeter for
    ensuring Mom traveled here safely, as well as both of them
    being here to support me today. Additionally, I am also pleased
    that their son, my nephew Luke Trompeter, could be here.
        I am also grateful for the support and love of my sister
    Denise Dorado, Sharon's parents, Alice and Bob Bedell, as well
    as the guidance from my cousin, Colonel Howard Wayne Crawford,
    Jr., U.S. Army Retired, all who are watching today.
        Finally, I have no doubt Anthony Mugno, Jr., Tony, my
    father, is watching from above and is very proud today as well.
        Many have asked me why I am interested in this position.
    The answer is easy. First, is to serve my country again. I did
    so in my career in the U.S. Army Judge Advocate General's
    Corps. That service launched me on the successful career path
    that brings me here today.
        Should I be confirmed, this tour of duty will allow me to
    give back to my country using all the experiences it gave me
    the opportunity to have over the years.
        Second, in the safety profession, there is no higher
    calling and few higher positions than this one. The opportunity
    to fulfill OSHA's mission to assure safe and healthful working
    conditions for all working men and woman is an honor and noble
    work.
        If confirmed, I will work hard every day, side by side with
    the best safety professionals at America's ultimate safety
    department, OSHA, to fulfill that important mission.
        Safety professionals, regardless of what sector they come
    from, all have the same goal: safety. The discussions or
    debates on how to reach that goal can, at times, lead some to
    believe one side or another does not believe in the goal.
    Nothing could be further from the truth.
        A top priority of mine is to lead and facilitate
    transparent discussions between those safety professionals in
    our mutual quest to fulfill the goal.
        I also want to assure you my experiences have given me a
    fairly rounded view of the safety arena.
        For instance, I fully respect the role organized labor has
    played in the safety arena over its history. In my first safety
    position with the FedEx organization, my safety team and I
    worked with the Flight Safety Department and the Pilot's Union
    to address and resolve hazardous materials issues. We also
    worked with them on infectious disease prevention and control
    during the 2009 pandemic.
        This collaboration and mutual respect is vital to making
    America's workplaces safe.
        Last, when I was in college and before I went to law
    school, I worked in Macy's Department Store in Queens, New
    York. I belonged to Local 1-S, AFL-CIO and for the better part
    of my last year there, I was the Shop Steward for the
    department. Yes, I wrote grievances and some of them for
    safety.
        As the discussions I have had with some of you last week
    revealed, the issues are many, they are diverse and as we all
    know, the resources limited. If I am given the opportunity to
    serve, I look forward to working with all of you, and Secretary
    Acosta, to make the workplace a safer and healthier place while
    always abiding by the OSHA mission and its laws.
        I look forward to your questions, and I again thank you for
    this opportunity today, Mr. Chairman.
        [The prepared statement of Mr. Mugno follows:]
                                    ------

                       prepared statement of scott mugno
        Thank you, Mr. Chairman, Ranking Member Murray, and distinguished
    Members of the Committee. I appreciate your valuable time in conducting
    this hearing.
        It is an honor to be here as President Donald J. Trump's nominee
    for Assistant Secretary of Labor for the Occupational Safety and Health
    Administration. I thank the President for the nomination and Secretary
    Alexander Acosta for his recommendation and support.
        Of course I thank my family, friends and colleagues who are here
    today or watching today's hearing for their support and love.
        In particular, and with me here today is my best friend and wife of
    thirty four years, Sharon Bedell Mugno. Our life's journey has been
    amazing and much of that is because of her. Our two daughters and son-
    in-law were unable to attend today but Madeline and Will Boulware and
    Kaitlin Mugno are watching and here in spirit with us.
        Nothing was going to stop Marilyn Mugno, my mother, from traveling
    from Cape Cod to be here today. I thank my sister Cheryl Mugno and
    brother-in-law William Trompeter for ensuring Mom traveled here safely
    as well as both of them being here to support me as well. I am also
    pleased their son, my nephew, Luke Trompeter could be here.
        I am also grateful for the support and love of my sister Denise
    Dorado, Sharon's parents, Alice and Bob Bedell as well as the guidance
    from my cousin, COL Howard Wayne Crawford, Jr., U.S. Army Retired, all
    who are watching today. Finally, I have no doubt Anthony Mugno, Jr.--
    Tony--my father, is watching from above and is very proud today.
        Many have asked me why I am interested in this position. The answer
    is easy. First, to serve my country again. I did so earlier in my
    career in the U.S. Army Judge Advocate General's Corps. That service
    launched me on the successful career path that brings me here today.
    Should I be confirmed, this tour of duty will allow me to give back to
    my country using all the experiences it gave me the opportunity to have
    over the years.
        Second, in the safety profession, there is no higher calling and
    few higher positions than this one. The opportunity to fulfill OSHA's
    mission to assure safe and healthful working conditions for all working
    men and woman is an honor and noble work. If confirmed, I will work
    hard every day--side by side with the best safety professionals at
    America's ultimate safety department, OSHA--to fulfill that important
    mission.
        Safety professionals--regardless of what sector they come from--all
    have the same goal: Safety. The discussions or debates on how to reach
    that goal can, at times, lead some to believe one side or another
    doesn't believe in the goal. Nothing could be further from the truth. A
    top priority of mine is to lead and facilitate transparent discussions
    between those safety professionals in our mutual quest to fulfill the
    goal.
        I also want to assure you my experiences have given me a fairly
    rounded view of the safety arena. For instance, I fully respect the
    role organized labor has played in the safety arena over its history.
    In my first safety position within the FedEx organization, my safety
    team and I worked with the Flight Safety Department and the Pilot's
    Union to address and resolve hazardous materials issues. We also worked
    with them on infectious disease prevention and control during the 2009
    pandemic. This collaboration and mutual respect is vital to making
    America's workplaces safe. Last, when I was in college and before I
    went to law school I worked in Macy's Department Store in Queens, New
    York. I belonged to Local 1-S, AFL-CIO and for the better part of the
    last year there, I was the Shop Steward for my department. Yes, I wrote
    grievances and some of them for safety issues.
        As the discussions I had with some of you last week revealed, the
    issues are many, they are diverse and as we all know, the resources
    limited. If I am given the opportunity to serve, I look forward to
    working with all of you, and Secretary Acosta to make the workplace a
    safer and healthier place while always abiding by the OSHA mission and
    its laws.
        I look forward to your questions and I again thank you for this
    opportunity today.
                                     ______

        The Chairman. Thank you, Mr. Mugno.
        Dr. Beach, welcome.

                       STATEMENT OF WILLIAM BEACH

        Dr. Beach. Mr. Chairman, Ranking Member Murray, and Members
    of this Committee.
        Let me join all of the nominees who have come before you in
    thanking this Committee for inviting me here today. I am
    honored that the President nominated me for this position of
    public trust. I thank the President for the nomination and
    Secretary Alexander Acosta for his recommendation and support.
        I admire, as all of you do, the Bureau of Labor Statistics
    and I join you in the common cause of defending its
    independence and its integrity.
        BLS continues to be the preeminent source for workforce,
    price, and productivity data. Much of the private and public
    sectors require this information to function well, if to
    function at all. Markets trade on BLS information, policymakers
    change laws based on their data, and businesses arrive at
    crucial decisions using the statistical products that BLS
    produces.
        How would I approach this position, should I be confirmed?
        I come to this nomination with a long public record of
    policy research. Underlying this record are principles that
    have guided my career. These principles, I submit, are more
    important and relevant to the position to which I have been
    nominated than most of the essays and projects that bear my
    name.
        I can state these principles in the form of three
    commitments.
        First, a commitment to discovering and developing high
    quality data to understand better the economic and social
    worlds.
        Second, a commitment to building innovative statistical and
    model-based tools that advance our understanding of how public
    policy affects social and economic activity.
        Third, a commitment to defending our public data systems
    through objective analysis and transparency.
        First, I maintain a commitment to discovering and
    developing high quality data. As everyone here knows, the
    economic and social world does not deliver a package of data to
    us each day attached with a note, ``Here is everything you need
    today to understand what is going on.''
        Rather, we have to work hard to find the right and reliable
    data for making sense out of what would otherwise be a chaos of
    incomprehensible activities.
        I have argued many times that the National Income and
    Product Accounts, and the labor and price data bases of the
    Bureau of Labor Statistics are among the 20th century's
    greatest inventions. Together they constitute our national
    economic accounting system, a true national treasure, and they
    reliably provide invaluable information to private and public
    decision makers struggling to draw insights from social and
    economic activity.
        Note, however, that this accounting system is entirely an
    invention of the human mind. None of this exists in nature.
    Economists, statisticians, sociologists, and other
    professionals have had to discover the data, defend their
    insights in ruthless peer review, and find funding to sustain
    what they have discovered.
        Second, I maintain a commitment to building analytical
    tools that will give policymakers better and timelier insights
    on how policy change might affect economic activity. Data alone
    tells us little about economic and social relationships around
    us.
        For example, the Census Bureau produces amazing data on the
    dynamics of business formation, on the creation and closing of
    businesses, and the jobs created and lost in those businesses.
        However, the information collected does not tell us how
    business and job change rates affect Government revenues, the
    output of the economy, or the productivity of labor. These
    relationships can be captured only in simple, and sometimes
    complex, models of economic activity.
        Finally, I am committed to defending our public data
    systems. For the handful of people who have followed my work on
    public data, I am hopefully known for advancing tough standards
    of transparency and disclosure.
        For example, I began work on public disclosure of Federal
    outlays and grants years before Senators Obama and Coburn led
    the successful effort to create USASpending.gov.
        I supported nonpartisan efforts for the passage of the Data
    Act. When I served on the Republican staff of the Senate Budget
    Committee, I worked with Senator Murray's office to advance the
    Evidence-Based Policymaking Commission Act of 2015.
        I have even flustered successive directors of the
    Congressional Budget Office by my critique of their failure to
    disclose their work adequately.
        If confirmed, I will work hard to advance the integrity of
    the Bureau, continue its legacy as a preeminent source of
    public data, and maintain the neutrality and objectivity that
    is indispensable to our Nation's growing economy.
        I thank you, again, for the opportunity to appear before
    you and to briefly describe the commitments that would guide my
    tenure as Commissioner of the Bureau of Labor Statistics.
        Mr. Chairman, I look forward to your questions.
        [The prepared statement of Dr. Beach follows:]
                                    ------

                      prepared statement of william beach
        Mr. Chairman, Ranking Member Murray, and Members of this Committee.
        Let me join all of the nominees who have come before you in
    thanking this Committee for inviting me here today. I am honored that
    the President nominated me for this position of public trust. I thank
    the President for the nomination and Secretary Alexander Acosta for his
    recommendation and support.
        I admire, as all of you do, the Bureau of Labor Statistics; and I
    join you in the common cause of advancing its independence and
    integrity.
        BLS continues to be the pre-eminent source for workforce, price,
    and productivity data. Much of the private and public sectors require
    this information to function well, if to function at all. Markets trade
    on BLS information, policymakers changes laws based on their data, and
    businesses arrive at crucial decisions using the statistical products
    that BLS produces.
        How would I approach the position, should I be confirmed? I come to
    this nomination with a long public record of policy research.
    Underlying this record are principles that have guided my career. These
    principles, I submit, are more important and relevant to the position
    to which I'm nominated than most of the essays and projects that bear
    my name.
        I can state these principles in the form of three commitments:
             Commitment to discovering and developing high quality
            data to understand better the economic and social world.
             Commitment to building innovative statistical and
            model-based tools that advance our understanding of how public
            policy affects social and economic activity.
             Commitment to defending our public data systems
            through objective analysis and transparency.
        First, I maintain a commitment to discovering and developing high
    quality data. As everyone here knows, the economic and social world
    does not deliver a package of data to us each day with a note, ``here's
    everything you're going to need today to understand what's going on.''
    Rather, we have to work hard to find the right and reliable data for
    making sense out of what would otherwise be a chaos of seeming
    incomprehensible activities.
        I have argued many times that the National Income and Product
    Accounts and the labor and price data bases of the Bureau of Labor
    Statistics rank among the 20th Century's greatest inventions. Together
    they constitute our national economic accounting system, a true
    national treasure, and they reliably provide invaluable information to
    private and public decisionmaker struggling to draw insights from
    social and economic activity.
        Note, however, that this accounting system is entirely an invention
    of the human mind. None of this exists on its own in nature.
    Economists, statisticians, sociologists, and other professionals had to
    discover data, defend their insights in a ruthless process of peer
    review, and find funding to sustain what they had discovered.
        Second, I maintain a commitment to building analytical tools that
    will give policymakers better and timelier insights on how policy
    change might affect economic activity. Data alone tells us little about
    economic and social relationships. For example, the Census Bureau
    produces amazing data on the dynamics of business formation: creation
    and closing of businesses and the jobs created or lost in those
    businesses. However, the information collected does not tell us how
    business and job change rates affect government revenues, the output of
    the economy, or the productivity of labor. These relationships can best
    be captured in simple or sometimes complex models of economic activity
    based on sound economic and social theory.
        Finally, I am committed to defending our public data systems. For
    the handful of people who have followed my work on public data, I am
    hopefully known for advancing tough standards of transparency,
    disclosure, and non-partisanship. For example, I began work on public
    disclosure of Federal outlays and grants years before Senators Obama
    and Coburn led the successful effort to create USASpending.gov. I
    supported non-partisan efforts for passage of the Data Act, and, when I
    served on the Republican Staff of the Senate Budget Committee, I worked
    with Senator Murray's office to advance the Evidence-Based Policymaking
    Commission Act of 2015. I have even flustered successive directors of
    the Congressional Budget Office by my critique of their failure to
    disclose their work adequately.
        If confirmed, I will work hard to advance the integrity of the
    Bureau, continue its legacy as a pre-eminent source for public data,
    and maintain the neutrality and objectivity that is indispensable to
    our nation's growing economy.
        I thank you, again, for the opportunity to appear before you and to
    briefly describe the commitments that would guide my tenure as
    Commissioner of the Bureau of Labor Statistics.
        I look forward to answering your questions.
                                     ______

        The Chairman. Thank you, Dr. Beach.
        Thanks to each of you for your willingness to serve, and
    your broad backgrounds, and the letters of support from so many
    different organizations that I have put into the record.
        We will now begin a 5 minute round of questions and I will
    begin it.
        Mr. Marcus, the Title IX guidance that the Department of
    Education issued in April 2011 established preponderance of the
    evidence as the standard of proof for cases of campus sexual
    misconduct.
        Would you agree that complex and important issues like that
    should be defined by Congress or through a rulemaking instead
    of through guidance?
        Mr. Marcus. Yes, sir.
        The Chairman. What is the appropriate role of guidance?
    What is the difference between guidance--you referred to a
    couple of times in your testimony--and rulemaking or a law
    passed by Congress?
        Mr. Marcus. Well, yes, sir.
        Congress passes the laws. Executive agencies, like the
    Office for Civil Rights, may have delegated authority to
    supplement that with regulations under the Administrative
    Procedures Act and other statutes.
        There are occasions, however, when agencies like the Office
    for Civil Rights have the discretion to issue guidance
    materials like ``Dear Colleague,'' letters that do not change
    the law in any way.
        The Chairman. Are they binding on----
        Mr. Marcus. No, sir.
        The Chairman ----the 6,000 colleges and universities?
        Mr. Collett, what is your view of the difference between
    guidance and rulemaking?
        Mr. Collett. Thank you, Mr. Chairman, for the question.
        With respect to guidance, I think guidance provides an
    opportunity to clarify something that is in a statute or a
    regulation, and not to impose new requirements.
        The Chairman. Is the guidance binding?
        Mr. Collett. No, sir.
        The Chairman. Mr. Mugno, is the guidance binding?
        Mr. Mugno. Thank you, Mr. Chairman.
        Guidance is guidance. Rules are rules. Laws are laws.
    Guidance should only be used to understand those rules.
        The Chairman. Mr. Mugno, OSHA exists to help ensure safety
    for 130 million workers at over eight million work sites. You
    have 2,100 inspectors.
        I am intrigued by OSHA's Voluntary Protection Program which
    Senators Enzi and Bennet have introduced legislation to expand.
        That seems to me to be a good way to get OSHA out of the
    business of playing ``got you'' with 130 million workers at
    eight million work sites by creating an environment in most of
    the sites of cooperatively working together to create safe
    workplaces, and then focusing your inspectors on the higher
    risk work sites.
        What is your view of legislation like that offered by
    Senators Enzi and Bennet to expand the Voluntary Protection
    Program?
        Mr. Mugno. Thank you, Mr. Chairman.
        The opportunity with expanding the Voluntary Protection
    Program, other compliance assistance programs that expand the
    knowledge about compliance with OSHA's regulations, as well as
    just improving safety and health in the workplace is an
    excellent way to expand OSHA's mission.
        It should not be viewed as mutually exclusive from the
    other tools in the toolbox such as enforcement and standards
    setting. Again, to your point, is a wonderful way to get the
    most and most efficient methods out of OSHA to expand
    compliance and safety.
        The Chairman. Will you make it a priority of yours to
    consider expanding the Voluntary Protection Program as a way of
    creating safer workplaces?
        Mr. Mugno. If confirmed, sir, I will certainly consult with
    the Secretary, as well as the career OSHA staff, on how to make
    that expansion better.
        The Chairman. Mr. Mugno, in 2015, OSHA drafted an internal
    memo that instructed safety and health inspectors to look for
    joint employment relationships between franchisees and
    franchisors when determining responsibility for health and
    safety violations.
        It appeared to be a lot like language from the NLRB General
    Counsel's brief on how to show joint employer status. That memo
    was never finalized.
        Do you think it is a good use of time for OSHA health and
    safety inspectors to be determining whether a franchise
    franchisee and franchisor are joint employers?
        Mr. Mugno. Thank you for the question, Mr. Chairman.
        OSHA, as you may know, has long had a multi-employer work
    site doctrine in conducting its inspections and citations. It
    seems to have worked very well for over the decades, and
    therefore I think OSHA addresses that issue very well through
    that doctrine.
        The Chairman. I am about out of time, but I wanted to say
    to Dr. Beach, I enjoyed our discussion. I want to respect the 5
    minute time, and I will submit this question to you.
        But you have two different ways of computing whether people
    have jobs in the workplace. The household survey, I have always
    thought, is one that we paid too little attention to, and I
    hope you have ways in mind to give it more publicity.
        Do you want to try to answer that?
        Dr. Beach. I look forward to your question, Mr. Chairman.
        It is such fine work that is done by the people at BLS and
    there is always room for improvement, of course, in the work
    that they do.
        I look forward to answering your question.
        The Chairman. Well, thank you, Dr. Beach.
        Senator Murphy.

                          Statement of Senator Murphy

        Senator Murphy. Thank you, very much, Mr. Chairman.
        Thank you for your focus on this issue of the difference
    between guidance and regulations. I agree that there is a
    significant difference, but let me speak in defense of
    guidance.
        We often pass statutes here that are often very difficult
    for schools, and school districts, and states to unpack.
    Guidance, while we recognize that they are different than
    regulations, often provides some help to states to understand
    how to comply. This Department actually has used non-binding
    documents in order to help states comply with the law.
        While this Secretary may have rescinded some of the
    guidance, this Secretary has offered templates to states to
    comply with ESSA that is in the same vein as the guidance,
    giving states a indication as to what they should do and what
    they should not do in complying with the law. But I think the
    distinction between regulation and guidance is important.
        I want to ask our nominee to OCR a few questions to follow-
    up on our meeting privately. I really appreciate, Mr. Marcus,
    your time with me.
        We talked a lot about school discipline, and so, I wanted
    to follow-up on that conversation and ask you a simple question
    to begin with.
        If there is a disparity in how African-American children
    are being disciplined in a particular school or school
    district, as compared to how white children are being
    disciplined, would that be legitimate grounds for an OCR
    complaint or an OCR investigation?
        Mr. Marcus. Thank you, Senator. I certainly also enjoyed
    the opportunity to meet with you and some of your colleagues
    during office visits.
        In general, the answer is yes.
        Senator Murphy. It is important to talk about this subject
    because nationally 5 percent of white students are suspended or
    expelled from schools in this country compared to 16 percent of
    black students.
        Students with disabilities represent 25 percent of students
    who are referred to law enforcement because of in-school
    behavior even though they are only 12 percent of overall
    student population.
        I would argue that we have a school discipline crisis in
    this country when it comes to the treatment of groups of
    students that are offered protection by your office. I
    appreciate your recognition that this is an important subject
    to look into.
        If there was a school district that was suspending or
    expelling five times as many black students for the same set of
    behaviors compared to white students, can you perceive any
    legitimate reason for that disparity?
        Mr. Marcus. Thank you, Senator.
        Let me say that if even one child is punished because of
    their race or punished worse because of their race, I believe
    that to be a significant concern.
        Now, if the numbers are as significant as you just
    described, I would consider that to be the grounds for asking
    some very tough questions.
        Senator Murphy. You and I had this discussion, and I will
    just share my view with you.
        I do not believe there is any legitimate explanation. I
    believe that kind of disparity in the treatment of African-
    American children would be, on its face, a violation of Federal
    law.
        Even if you did not find a smoking gun--in which an
    administrator admitted that they had an intentional policy of
    targeting black children--on its face, that kind of disparity
    would be a violation of the Federal law.
        Do you agree with that statement?
        Mr. Marcus. Senator, I believe that disparities of that
    size are grounds for concern. But my experience says that one
    needs to approach each complaint or compliance review with an
    open mind and sense of fairness to find out what the answers
    are.
        I will tell you that I have seen what appeared to be
    inexcusable disparities that were the result of paperwork
    errors. They just got the numbers wrong.
        Senator Murphy. That is something different.
        Mr. Marcus. I think one needs to find out what is
    happening, and if there is discriminatory conduct, there needs
    to be consequences.
        Senator Murphy. Let me ask one final question.
        Right now, your Department, and the Department collects
    data from schools generally on the issue of civil rights
    compliance, but specifically in the last several years on data
    related to school discipline. It is the only way that you would
    be able to find out if there are disparities.
        Do you see any reason to change that data collection
    practice? Would you see any reason that you would not require
    schools to, at the very least, submit data to your office on
    school suspension and discipline rates?
        Mr. Marcus. Senator, I think that you are referring to the
    so-called CRDC data collection. I have worked with that data
    collection in the past. I have used it. I have found it
    valuable and important.
        Under my direction, the Louis D. Brandeis Center for Human
    Rights Under Law in the past did recommend changes,
    specifically to expand, in certain respects, data; not in
    respect to discipline per se, but in general.
        I do not have any changes in mind. I would be open if
    people have recommendations for improving it.
        Senator Murphy. Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Murphy.
        Senator Collins.

                          Statement of Senator Collins

        Senator Collins. Thank you, Mr. Chairman.
        Mr. Mugno, in a 2006 edition of ``Business Insider,'' you
    made a comment that employers, quote, ``Have to look harder at
    the employees in order to further improve workplace safety.''
        I know that some people have taken that comment out of
    context to suggest that you were attributing employee injuries
    to activities that were off the work site.
        Could you explain to the Committee and clarify exactly what
    you meant by that comment?
        Mr. Mugno. Well, thank you, Senator, for that question. I
    appreciate the opportunity to clarify.
        What I meant with that comment has only proven to be more
    true as the years have passed since then. What we see, well,
    let me start here.
        If safety were a sport, it is a team sport. Everybody
    involved in trying to improve safety and health in the
    workplace has to have skin in the game, if you will, to
    continue with the sports metaphor.
        What we were seeing then, and what we have been seeing even
    more in the last few years, has been some of the issues that
    employees bring into the work site, into the workplace
    themselves. Not necessarily activities that are outside, but
    their health and their condition.
        I see quite a few medical events, if you will, come onto
    the work site because of whatever their condition may be and in
    treating that.
        Obviously, keeping yourself fit in those things, especially
    when you are in a job that may be physical in nature, like some
    of the jobs are where I work, that is what is critical to that.
    That is what we are trying to look at.
        These health and wellness programs that we see are being
    offered by other sectors in our company, like the human
    resources, can help address those issues. Then ultimately, in
    my opinion, make the workplace safer and healthier.
        Senator Collins. Thank you.
        Mr. Marcus, there has been a lot of discussion and debate
    over the status of the 2011 Title IX ``Dear Colleague'' letter
    that was issued by the Department of Education regarding sexual
    violence on campus.
        Regardless of the status of that letter, colleges and
    universities must still comply with the robust requirements of
    the Clery Act and Title IX regulations that ensure that
    institutions of higher education work to prevent and respond to
    allegations of campus sexual assault.
        In September, Secretary DeVos announced that the Department
    is going to undertake a public notice and comment process, that
    has been referred to previously, to replace the Obama
    administration's 2011 ``Dear Colleague'' letter.
        That letter has been heavily criticized by the American Bar
    Association's Criminal Justice Task Force on College Due
    Process Rights and Victims Protections, as well as by the
    American College of Trial Lawyers, and they suggested
    alternatives to ensure due process.
        The problem is that no timetable for the regulatory process
    has been established. I think many of us that are concerned
    about the legitimate criticisms of the guidance that have been
    raised by legal organizations, but it also is concerning that
    the process seems to be in limbo.
        Do you know what the timetable is for going through the
    regulatory process and coming up with regulations rather than
    guidance?
        Mr. Marcus. Senator, I share your concerns about that
    particular statute and that area of the law.
        I do not know the timetable. I do not believe that it has
    been announced by the Department, nor am I privy to internal
    conversation within the Department.
        Senator Collins. I hope that once you are confirmed, and I
    assume that you will be confirmed, that you will make it a
    priority to get that process going. I do think it should be
    done through regulation, but we need to get going.
        Mr. Collett, when I talk to school administrators in my
    state and ask them, ``What is the single greatest impact that
    the Federal Government could have on your ability to provide a
    good education to all students?''
        Invariably they tell me it would be for the Federal
    Government to pay its promised share of IDEA for special
    education for children with special needs. The Federal
    Government has never lived up to the promise that was made in
    the mid 1970's when this landmark law was passed.
        Do you agree that this would make a difference for every
    school district?
        Mr. Collett. Thank you, Senator. I appreciate the question.
        I think when you were talking about that and asking that
    question, my mind went back to when I was in the classroom, and
    all the other teachers I have seen since. How, even to the
    extent that they may not feel like and believe they have the
    resources that they need, how they work every day on behalf of
    children and families that they serve.
        I am grateful for teachers and leaders across the country
    who are working with what they have every day to make sure they
    can improve outcomes for children.
        I am eager, and would look forward to the opportunity, if
    confirmed, to have conversations with the Secretary to work,
    obviously, with our Office of General Counsel and legislation--
    --
        The Chairman. I am going to try to keep, we are well over
    time here.
        Mr. Collett. Yes, thank you. Thank you, Mr. Chairman.
        The Chairman. I am going to try to----
        Senator Collins. If I could have an answer for the record
    that is more direct on that question, I would appreciate it.
        Senator Collins. Thank you.
        The Chairman. Thank you, Senator Collins.
        Senator Murray.
        Senator Murray. Well, thank you very much.
        Mr. Marcus, I will start with you.
        As I mentioned in my opening remarks, President Trump
    kicked off his campaign disparaging Mexicans, talked about
    profiling Muslim Americans, made comments about women that I
    will not repeat in this room.
        Given that President Trump has nominated you to serve as
    the top civil rights official at the Department of Education, I
    do want to ask you this, and I would appreciate a yes or no
    response.
        Do you support President Trump's record on discrimination,
    women's rights, and civil rights? Yes or no.
        Mr. Marcus. I believe in strong civil rights protections
    for all of those groups, Senator.
        Senator Murray. Well, that was not a yes or no. Let me ask
    it another way.
        Can you name a single example of something President Trump
    has said or done when it comes to discrimination, or women's
    rights, or civil rights you disagree with that has moved our
    country in the wrong direction?
        Mr. Marcus. I could not say, Senator.
        Senator Murray. You do not have an answer to that.
        Okay. Let me ask you another question.
        I have been concerned about the direction the Office for
    Civil Rights has taken under the leadership of President Trump,
    and Secretary DeVos, and Candice Jackson so far this year,
    especially when it comes to protecting the rights and safety of
    women and LGBTQ individuals.
        So far this year, Secretary DeVos has eliminated the
    requirement that staff inform the D.C. office of sensitive
    cases involving sexual violence complaints. She has rescinded
    guidance on sexual violence that had helped our survivors
    actually come forward.
        She ended the practice of consistent, systemic
    investigations to root out whether or not an individual
    complaint is a sign of a bigger problem.
        She supported cutting the OCR budget, and reducing OCR
    staff and appointed staff who fought against expanded
    protections for survivors of campus sexual assault. In fact,
    the bipartisan independent U.S. Commission on Civil Rights
    announced an investigation because of a, quote, ``Dangerous
    reduction in civil rights enforcement.''
        Now, you have previously led OCR, and so I hope you have
    some thoughts on how OCR should run in order to ensure that all
    of our students can obtain an education safely and free from
    discrimination. I want to ask you.
        Will you commit to continuing to make a list of campus
    sexual assault and sexual harassment cases available to the
    public?
        Mr. Marcus. Thank you, Senator.
        No, I cannot commit and let me tell you why.
        During the time that I was in that position, the practice
    that was used then, universally recommended by career
    professionals, was to make that information available only at a
    later part in the process and there were reasons they had for
    that.
        I understand that there are people who are urging different
    positions. I can commit to you that I would listen very
    carefully to the arguments in both of those directions before
    making a decision.
        Senator Murray. Do you agree that revoking the 2011 campus
    sexual assault guidance was appropriate?
        Mr. Marcus. Yes, Senator.
        Senator Murray. You do. Well, that guidance was really key
    to helping survivors come forward. It made clear the schools'
    obligations under existing laws, and I am really concerned that
    the Department is now sending a signal to schools that sexual
    assault will not be taken as serious.
        Do you commit to coming before this Committee next year to
    update us on the steps the Department is taking to address
    campus sexual assault and sexual harassment?
        Mr. Marcus. Senator, first of all, let me say that I
    consider sexual assault on campus to be a matter of very grave
    seriousness and one on which there should be clear law. I would
    be----
        Senator Murray. But if the guidance and the Department's
    attitude is that, ``Do not come forward because the right will
    not be on your side,'' it will mean that fewer people will make
    comments, and women will be left to silence.
        Mr. Marcus. Senator, in answer to your question, if invited
    to appear, I would certainly be honored to appear.
        Senator Murray. Well, Mr. Chairman, I hope that does occur.
        I just have 50 seconds left. I want to ask Mr. Mugno,
    during your two-plus decades with FedEx, you have consistently
    opposed stronger safety and health protections for workers.
    There are a number of examples.
        In 1995, you opposed the application of stronger respirator
    standards; 2000, against the OSHA ergonomic standards. The list
    goes on.
        You serve as Chair of the Chamber of Commerce Labor Policy,
    an OSHA Subcommittee, which has a long record of opposing OSHA
    health and safety regulations.
        I wanted to ask you, can you name a single rule proposed by
    OSHA that, during your career, you support in order to improve
    or enhance worker safety?
        Mr. Mugno. Thank you for the question, Senator.
        If we wrote comments against an OSHA particular rulemaking,
    it had to do with the fact that we did not feel it was
    efficient or effective.
        Senator Murray. But I was asking you to tell me anything
    that you supported.
        Mr. Mugno. So in not writing comments, I would argue that
    those were things that, obviously, we thought were well worth
    it.
        Senator Murray. But you did not write any comments
    supporting them.
        Mr. Mugno. That may be the case, Senator. I do not recall.
        Senator Murray. Thank you.
        The Chairman. Thank you, Senator Murray.
        I am now going to call on Senator Isakson, but I wanted to
    thank Senator Collins, who has agreed to chair the hearing
    while I go to the Senate Appropriations Committee hearing on
    Health and Human Services.
        Senator Isakson.

                          Statement of Senator Isakson

        Senator Isakson. Thank you, Mr. Chairman.
        Following up on Senator Murray's questions, Mr. Mugno, I
    would like to follow-up, if I could.
        Is it not true that one of the largest variable expenses
    that a company like yours, FedEx, or one in my state, UPS, and
    others would run into would be violations of safety which cause
    their workers' compensation and other benefits to go way up in
    cost, costing them more money to do business and less money to
    make a profit?
        Mr. Mugno. Thank you, Senator, for the question.
        That would be true. That and the consequences from a
    violation of that sort, which is why companies such as the ones
    that you mentioned, invest considerably in their safety
    programs to prevent such things and keep their workplaces safe.
        Senator Isakson. Is it not true that most of your managers
    and responsible management personnel in your company is the No.
    1 issue and No. 1 responsibility of safety in one form or
    another?
        Mr. Mugno. Absolutely, sir. In the organization I currently
    sit in, our philosophy is both one of safety above all, as well
    as a PSP philosophy or People-Service-Profit.
        Take care of the people, they will take care of the
    service, it will bring the profits. Yes.
        Senator Isakson. Have you ever seen a case where you found
    FedEx to see OSHA as an enemy or a friend?
        Mr. Mugno. I would always say they were an ally. Like I
    mentioned earlier, if safety was a sport, it would be a team
    sport. OSHA has much to bring to the table as well. Granted,
    they have enforcement powers in that, which are needed in some
    cases for other actors.
        Senator Isakson. My point is I visited a UPS site recently,
    a UPS headquartered in my state. Fred Smith, your President, is
    a great leader in the logistics business.
        But the No. 1 focus they do at their rallies are to give
    out 30-year, accident-free awards to employees who have gone 30
    years without an accident where anyone was injured.
        In my experience, most of the awards go out in your type of
    company, go out to people who are practicing good safety and
    good safety results.
        Is that not true?
        Mr. Mugno. That is true, Senator.
        Recognition for good, safe behaviors that, I think, is also
    vital in preserving and sustaining safety in these workplaces.
        Senator Isakson. My only other point is that most of the
    good changes in safety policy in companies come when OSHA and
    the companies work together voluntarily to find new ways to
    improve safety on the work site, rather than react to an
    accident that happened some time in the past.
        Is that not true?
        Mr. Mugno. That is true, sir, but it is also worth working
    with OSHA when those defining events, unfortunately, happen and
    making sure, working together, they do not occur again.
        Senator Isakson. Thank you very much.
        Dr. Beach, I follow statistics very closely and a lot of
    the things we do in Washington are governed by statistics. We
    pass a lot of laws that pass out benefits to American citizens
    or workers that are indexed to a determination that you will
    end up making in your responsibility.
        One question I asked you when you came to my office, and I
    want to repeat and ask it here, to get it on the record.
        Do you think it would be a good idea to substitute CPI,
    Chained CPI for CPI in the calculation of many of our benefits?
        Dr. Beach. Thank you, Senator. That was a good question
    when you asked me then. It is a good question now.
        I really have not made up my mind on the Chained CPI. There
    is an abundant literature out there about pluses and minuses on
    the Consumer Price Index and it seems to point in the direction
    of some needed improvements.
        The person who had the job of the Commissioner of Labor
    Statistics last, Erica Groshen, has co-written an article
    focusing on the shortcomings of the CPI. I think we would be
    guided by research.
        I do think that the CPI sample size needs to be
    significantly increased. That has a budgetary effect, but I
    think it would make the CPI, as currently calculated, very
    successful.
        I am going to, if confirmed, I am eager to get a briefing
    on all of those things. As I say, I have not quite made my own
    mind up on the Chained CPI.
        Senator Isakson. Well, my only comment on that is that as
    we progress with technology and with distance commuting for
    workers with computer commuting, and all the new modern
    workplace that we have, it is going to be harder and harder to
    determine what those numbers are rather than easier.
        We are going to need an academician, like yourself, leading
    up that agency. I am pretty glad you want to do so.
        Dr. Beach. It is. Now, a 30-year critique of the CPI and
    many changes have been made that have significantly improved
    it.
        It is so central to our entire economy. It is part of the
    basic infrastructure we have, and we need to make it as good as
    possible.
        Senator Isakson. Real quickly, because I want to get this
    question in.
        Now, Mr. Collett, I have a real affinity for people named
    Johnny, so we are glad to have you here.
        Congratulations on your appointment.
        Mr. Collett. Thank you.
        Senator Isakson. I also have an affinity for people who
    teach special education. I married a lifetime special education
    teacher.
        I spent most of my time as the Chairman of the State Board
    of Education trying to reform a lot of Georgia's policies and
    practices in terms of teaching special education students and
    students with disabilities.
        Senator Murray, in her comments at the introduction,
    pointed out that Kentucky has had a case, I think she referred
    to, where they had a high number of restraint complaints
    against them for their special needs.
        Do you know what those restraint complaints were in the
    State of Kentucky?
        Mr. Collett. I am not sure, particularly, if you are
    referring to restraints, seclusion, or something else, in terms
    of Senator Murray's opening remarks.
        Senator Isakson. She may follow-up. She is Chair of the
    Committee, she may follow-up on that, but my only reason for
    bringing that up is a lot of times the special education
    classroom or environment--it is really more of an environment
    than a classroom--is dramatically different depending on the
    disability, the student, their abilities, behavior, all those
    types of things.
        A lot of things get labeled or misconstrued to be
    confinement or some other type of treatment, when it is really
    isolation for a specific reason that might be due to discipline
    and not be due to the educational process.
        In your job with the Department of Education, it is going
    to be critically important that we make sure we are well
    defined in those situations. We do everything we can to give
    the maximum amount of flexibility we can for special education
    teachers to teach in the best mode they find it to deliver a
    quality education to the student given the disabilities of that
    student.
        That is not a question. That was a statement that I wanted
    to get in the record.
        Thank you. Congratulations on your appointment.
        Mr. Collett. Thank you, Senator.
        Senator Collins [presiding]. Thank you, Senator.
        Senator Franken.

                          Statement of Senator Franken

        Senator Franken. Thank you, Madam Chair.
        Mr. Marcus, LGBT students deserve to learn in an
    environment free from discrimination and they deserve to be
    treated with dignity and respect. But far too often, LGBT kids,
    particularly transgender kids, endure harassment and
    discrimination. When that happens, those students are deprived
    of an equal education.
        It is unfortunate that the Trump administration scrapped
    guidelines written by the Obama administration that instructed
    schools on how to protect transgender students under Title IX.
    But rescinding the guidance did not change the law and it did
    not take away students' rights.
        Mr. Marcus, Title IX protects these students and the
    Department of Education should enforce it.
        If confirmed, your role will be to serve as the chief legal
    advisor on civil rights and to guarantee equal access to
    education for all students.
        If a transgender student files a complaint under Title IX
    alleging unequal access, will your office do its job and
    investigate the case?
        Mr. Marcus. Senator, I agree with you that all students,
    including all transgender students, deserve equal access to
    education and should not be harassed and bullied.
        If I should be confirmed, and OCR receives a complaint from
    a transgender student, under Title IX we would receive the
    complaint and enforce applicable law.
        Senator Franken. Okay. You will investigate it?
        Mr. Marcus. Investigation has changed from time to time. We
    would investigate if the complaint meets the standards for
    investigation.
        Senator Franken. Okay. Thank you.
        Mr. Collett, under the Individuals with Disabilities
    Education Act, IDEA, schools are required to identify and
    evaluate students with disabilities, and then schools have to
    provide special education services such as speech therapy or
    counseling that are tailored to the individual needs of the
    students with disabilities. You, of course, know that.
        However, most states do not require private schools to
    uphold IDEA for students with disabilities when they are using
    a voucher to go to a private school.
        A recent GAO report found that many parents have no idea
    that they are giving up these rights when they use a voucher
    for a student with a disability and that is because the private
    schools do not tell them. In fact, 83 percent of students with
    disabilities, who are enrolled in a voucher program, were
    provided no information or were given the wrong information
    about the changes in their IDEA rights.
        This really concerns me, especially because Secretary DeVos
    has been pushing to expand voucher programs for years.
        Mr. Collett, given your experience working on behalf of
    students with disabilities, are you concerned about students
    with disabilities losing their rights under voucher programs?
        Mr. Collett. Senator, thank you for the question.
        My role would be to uphold the law and as you rightly
    pointed out, the Individuals with Disabilities Education Act
    makes a distinction between students who are in public schools
    who have a right to a free, appropriate public education in the
    least restrictive environment with all the rights accorded
    thereof.
        Students who are placed by their parents in public [sic]
    schools under IDEA under current law, do not have a right to,
    an individual right to a free, appropriate public education. I
    would uphold the law.
        Now, with respect to do I have a concern about any child
    who is not progressing the way that we, and most importantly,
    they envision.
        But my role, and I would discharge it faithfully, is to
    uphold the law.
        Senator Franken. Okay. But how would you ensure that the
    families of students with disabilities have accurate
    information about losing their IDEA rights when they
    participate in voucher programs? How would you do that?
        Mr. Collett. Yes, thank you. Thank you for the question.
        I am familiar with the GAO report that you are referencing,
    and I am familiar with the recommendations that it makes in
    terms of the recommendation for Congress to act, but also a
    recommendation for the Department to do some review.
        I would be very eager and open to the opportunity to talk
    with the Secretary, if confirmed, and to work with whomever,
    whoever has a stake in this to see how best the Department
    should respond to this recommendation.
        Mr. Franken. You would commit to doing that?
        Mr. Collett. Commit to working with the Secretary to
    understand how best the Department should respond to the
    recommendation. Yes, sir.
        Senator Franken. Okay. Well, the commitment I would like to
    hear is that you will do everything you can to make sure that
    parents who are getting vouchers to go to a private school
    understand what their rights are before they exercise the use
    of that voucher to go to a place where maybe their kid is not
    going to get what he or she needs.
        Thank you.
        Mr. Collett. Thank you.
        Senator Collins. Senator Cassidy.

                          Statement of Senator Cassidy

        Senator Cassidy. I thank you all.
        Mr. Collett, nice to see you yesterday, and just to follow-
    up on what we spoke of yesterday and, indeed, I had a
    conversation with Senator Franken about some of the same
    topics.
        I am going to play off of this with you, Mr. Marcus. Okay.
    By the way, Brandeis was a big Kentuckian, so I feel like I got
    the Kentucky bench down there.
        Mr. Collett, Children First wanted to read, then read to
    learn. Now, the issue I have with children with dyslexia, they
    are not screened at Grade One. They are screened at Grade Three
    at which time they have not learned to read, but they are
    taking a standardized test at Grade Four.
        It is program failure because they have not learned to read
    and they have not been screened for that to that point.
        I guess I am asking you to confirm that if you are
    confirmed, you will take the positions to influence the
    policies and programs at the Department so that these 20
    percent of the children in our school system, who are dyslexic,
    are not left behind because of a delay in screening and a delay
    in intervention.
        Mr. Collett. Thank you, and it was a pleasure to meet with
    you in your office. You were very gracious.
        I think my record shows this and I believe that folks would
    speak to that who know me and have worked with me.
        Certainly, if confirmed and have an opportunity to serve in
    this role, what I have been committed to and will continue to
    be committed to is supporting the timely and appropriate
    identification of students with disabilities, including
    students with dyslexia.
        Senator Cassidy. Leading to the next question.
        If a child is in a special intervention program and in full
    disclosure, my wife has a public charter school for children
    with dyslexia, which is a concentration of children who cannot
    read. If you cannot read at Grade Three, they send you here,
    which means that it is a concentration.
        Now, if you compare the school system, this school against
    all other schools, they cannot read. Of course, they are going
    to do poorly on standardized testing.
        My point being, it would be a better control not to compare
    against the gifted and talented school, but rather, against
    themselves. Had they made progress between the time the
    interventions began and when they are actually tested? Make
    sense?
        I guess what I am asking the Department, if they can focus
    on, how do we come up with a screening system in which we are
    measuring progress? Not the kind of blunt instrument we have
    now, where children in one school are compared to children at
    another school, kind of ignoring the fact that maybe that one
    school is there specifically for folks with cognitive or some
    other disability.
        Even though I am expressing it poorly, I think you know
    what I am saying.
        Mr. Collett. Yes, sir.
        Senator Cassidy. Any thoughts on that?
        Mr. Collett. Well, I think to follow-up on what I mentioned
    in your office yesterday.
        I would look forward, and be very open to, conversations
    about that, and I appreciate your recommendation of what the
    Department could think through. If given the opportunity to
    serve in this role and within, if it were to be within my
    purview in the Office of Special Education and Rehabilitative
    Services, I would look forward to the conversation and follow-
    up.
        Senator Cassidy. Mr. Marcus, I am not a lawyer, so you
    will, perhaps, dispute what I say and I will have to defer to
    you.
        But if you look at the IDEA, it includes specifically, I am
    reading this, ``Disorders included, such term include such
    conditions as perceptual disabilities,'' blank, blank, blank,
    ``Dyslexia,'' and going on.
        Now, again, about 80 percent of children with disabilities
    are dyslexic. Now, I have been reviewing the Endrew F. case
    against the Douglas County school board that the Supreme Court
    unanimously said that the school board had to do more than a de
    minimis effort to address the child's issue.
        When we have had previous panels, I have asked if school
    systems have screened for dyslexia. With a few exceptions, New
    Hampshire under Governor Hassan, screens now universally, but
    most states do not screen for dyslexia.
        What they are intervening with, an RTI, Response To
    Intervention, is an 8-week course which the best literature
    shows that outside of highly controlled situations does not
    work.
        Looking at the Endrew F. case, which seems to make this a
    civil rights case, IDEA says that the schools shall do
    something more than de minimis intervention and knowing that
    most states are not even screening, much less intervening with
    vigor.
        My question for you is, what do you see the role of DOE's
    civil rights division in terms of making sure that school
    boards are compliant and doing something more than a de minimis
    intervention?
        Mr. Marcus. Thank you, Senator. That is a complex question
    and certainly an important one.
        I have to say to start with that it is my understanding
    that responsibility for administering the IDEA has been imposed
    on the Office of Special Education and Rehabilitative Services
    rather than the Office for Civil Rights.
        However, some of the same or similar questions can arise
    under either the Rehabilitation Act or, perhaps, Title II of
    the ADA. OCR does have jurisdiction over those provisions, but
    they have different definitions than under IDEA.
        That is very complicated.
        I am afraid, Senator, I do not know what the best way of
    dealing with that is. It seems to me that if we had that issue,
    that might implicate issues under both IDEA and also other
    provisions within OCR, it might make sense to coordinate within
    the Department on it, and we would have to give some deference
    to the departmental experts on IDEA who are within the so-
    called OSERS division.
        Senator Cassidy. I am out of time, but I appreciate the
    answer. I look forward to working with you both because, again,
    it affects 20 percent of the children in our population. If we
    are not addressing it now, hopefully, we can change it with
    this Administration.
        Thank you all.
        Senator Collins. Senator Hassan.

                          Statement of Senator Hassan

        Senator Hassan. Thank you, Senator Collins.
        Good morning to the nominees. Congratulations on your
    nomination and congratulations to your families too because it
    takes all of you to serve together, and we appreciate all of
    the family members here very much.
        To Mr. Collett, as you know, more than 20 years of
    educational research shows that when students with disabilities
    are educated in the same classroom as their peers, both the
    students with disabilities and those without disabilities do
    better academically, socially, and behaviorally.
        This has been a major focus of the U.S. Department of
    Education for years, and something Congress reinforced in ESSA
    by requiring states and schools to do three things. Provide
    students the accommodations they are entitled to, improve the
    conditions for learning at that school, and limit the number of
    children being taught to the lower, simplified alternate
    standards and tested using the alternative assessments.
        If confirmed, will you commit to work with your colleagues
    at the Department of Education to ensure that states implement
    ESSA in a way that is consistent with the letter and intent of
    ESSA regarding children with disabilities?
        Mr. Collett. Thank you, Senator, for the question.
        Yes, I would look forward to working with the Office of
    Elementary and Secondary Education and will commit to upholding
    the law as written by Congress.
        Senator Hassan. Well, thank you.
        I would add my comments to Senator Collins. I think it
    would be great if the Federal Government lived up to its
    commitment of funding because I think that would enable local
    school districts to have the kind of staff and personnel that
    can help with true classroom integration and best practices.
        I wanted to touch on another issue that we are now seeing
    with ESSA on one particular ESSA requirement is that states
    separate out data by demographics of students, who historically
    have required additional supports, in the education setting.
    These subgroups include English language learners, low income
    students, and students who experience disabilities.
        Under this requirement, a few states have created so-called
    super subgroups by combining two or more groups together.
        In addition, a few states have chosen to not use subgroup
    performance in school reading at all, which is a clear
    violation of the law.
        The use of these so-called super subgroups and, in some
    cases, not utilizing subgroup performance metrics when
    determining targeted schools, may lead to students who
    experience disabilities to not be accurately identified. In
    turn, not receive the supports they need, and supports they are
    eligible for under the law.
        Can you assure us that you will stand up for students who
    experience disabilities by asking states to disaggregate
    subgroup data in their state plans, and to use these data as
    required by law?
        Mr. Collett. Thank you, Senator, for the question.
        With respect to the ESSA plans, and obviously I am not in a
    position at the Department where I am aware of deliberate
    conversations that may or may not be occurring around
    evaluation of ESSA plans that have been submitted.
        I know that the Secretary has clearly committed that she
    will approve plans that comply with the law.
        Senator Hassan. Right.
        Mr. Collett. I am not in a position to be able to say, or
    speculate, how I might, not knowing the details of the
    particular deliberations that are occurring.
        Senator Hassan. I am sorry to interrupt, but can you
    understand that if you are lumping children with disabilities
    with other subgroups, and just measuring the progress of those
    subgroups, that you cannot then distill how the children with
    disabilities themselves are doing? If you are not measuring
    that, you are not holding schools accountable to how they are
    doing in terms of educating children who experience
    disabilities.
        Is that a fair statement? Do you agree with that?
        Mr. Collett. I certainly agree that it is very difficult to
    chart a course forward if you are not sure of where you are.
        Senator Hassan. Right.
        When a school district used to say, in my state, ``Well, we
    just cannot educate children who experience disabilities,''
    which sometimes they would say because it is too hard.
        I would be able to say because of some of the ways we
    measure data in New Hampshire, ``Actually, there is a school
    just like yours with children who experience disabilities just
    like yours who is doing a really good job. Maybe you can share
    best practices.''
        It is really important to have this data.
        I want to move onto one other question before my time is
    up.
        The Fair Labor Standards Act authorizes employers, and this
    is for you, Mr. Collett, to pay sub-minimum wages to workers
    who experience disabilities. Oftentimes, this type of
    employment occurs in a secluded environment known as a
    sheltered workplace.
        In 2015, with the support of the New Hampshire business
    community, New Hampshire was the first state to eliminate the
    payment of sub-minimum wage. There have been efforts in
    Congress to end this practice.
        If confirmed, you will have oversight of rehabilitation
    services, which provides support to individuals who experience
    disabilities in navigating employment opportunities and in the
    workplace. Currently, we have regulations that prohibit sub-
    minimum wage placements to qualify as a successful employment
    placement.
        If confirmed, will you work to support and expand
    competitive, integrated employment for individuals who
    experience disabilities and will you oppose payment of the sub-
    minimum wage?
        Mr. Collett. Thank you for the question. I will be brief in
    my response.
        I have a record of standing up for kids, standing up for
    individuals with disabilities. I believe in competitive wages.
    I believe in integrated settings.
        With respect to the Rehab Act, as amended by WIOA, I will
    certainly uphold the law.
        Senator Hassan. Thank you very much.
        Mr. Collett. Thank you.
        Senator Hassan. Thank you, Senator Collins.
        Senator Collins. Thank you.
        Senator Casey.

                           Statement of Senator Casey

        Senator Casey. Thank you.
        I first wanted to thank the witnesses for appearing today,
    obviously, but also for your commitment to this process which,
    I know, is a long, difficult process. I want to thank your
    families for making that same commitment.
        Mr. Mugno, because you are Pennsylvania residents, I should
    be directing some question to you, but I am going to have to
    wait because I have someone else on the panel I have to ask
    some questions to. But we welcome all of you.
        Mr. Marcus, I wanted to start with you on a really
    difficult topic for the country, and that is campus sexual
    assault, which has been for many years at epidemic levels. I
    should say the failure to address it for a lot of years is
    really an insult to the country and a betrayal. For many years,
    both parties did not do enough on this issue.
        We made some progress a couple of years ago when we were
    reauthorizing the Violence Against Women Act. My legislation,
    the Campus SaVE Act, was passed as part of that, which required
    campuses, universities, and colleges to do a lot more than they
    had been doing. That was an advancement, but frankly, we have
    to do more.
        Part of that is not simply the statutory or legislative
    work. It is obviously going to involve agencies of the Federal
    Government; in particular, the Department of Education.
        I wanted to ask you about one part of this challenge, which
    is to make sure that information is available.
        Back in 2014, the Department's Office for Civil Rights
    published a list of colleges and universities with open Title
    IX compliance regarding campus sexual harassment and assault.
        In previous administrations--meaning before the Obama
    administration and that would include the time when you were
    serving President Bush's Administration--this information was
    not made publicly available. Releasing this information shined
    a light on how pervasive sexual violence is on college
    campuses.
        I know that Senator Murray has raised this issue already
    with you today, but I want to make sure that I am clear with
    regard to your views, as well as how you would proceed, if you
    were to be confirmed.
        I guess first, a two-part question. Your views on this
    increased transparency, which I think was a tremendous
    advancement brought about by the last Administration.
        If confirmed, would you commit to ensuring this data
    continues to be made publicly available?
        Mr. Marcus. Thank you, Senator Casey.
        I would certainly commit to looking at the question
    carefully, and I can tell you some of the considerations I
    would have in mind. There are, I think, at least three possible
    avenues that I have heard described.
        First, there is the approach of providing that information
    only at a later stage. That is the approach that was used
    during my prior tenure.
        There are arguments for that including, in particular, the
    question about whether it could facilitate more and more
    effective resolutions with institutions.
        Second, there is the argument that these cases should be
    treated differently and transparency should be provided
    earlier.
        Some of the arguments for that include that it helps shine
    a spotlight on these issues, which encourages greater public
    awareness.
        Then there is a third argument, which is that all of the
    cases before OCR should be treated the same way and all should
    have this transparency, both for greater public awareness and
    for equity.
        I hear all of those arguments. I do not believe that I can,
    from the outside, fully assess all of them.
        For example, I would need to know more, I think, about the
    experience of OCR at achieving resolutions and making a change
    during this period.
        I cannot assure you what my answer would be, but I could
    assure you that I would look at it carefully, with an open
    mind, and assess each of the arguments.
        Senator Casey. Well, I appreciate that because I hope that
    what you would not end up supporting is a backtracking, and in
    light of, part of your answer with regard to other related
    issues.
        I know, I am over time. I will send you a note regarding
    the same questions in the context of disability, race, and
    religion, but I know I am out of time.
        [The following information can be found on page 208 in the
    appendix.:]
        Senator Casey. Thanks very much.
        Mr. Marcus. Thank you.
        Senator Collins. Thank you.
        Senator Whitehouse.

                        Statement of Senator Whitehouse

        Senator Whitehouse. Thank you, Chairman.
        Dr. Beach, you come to us today with a long record of work
    for the Mercatus Center and the Heritage Foundation, two groups
    which have been extensively funded by the fossil fuel industry
    and by right wing, climate-denying foundations.
        For instance, the Heritage Foundation has received $780,000
    directly from Exxon Mobil since 1998. Exxon Mobil, of course,
    still fights climate action here in Congress.
        Greenpeace says the Heritage Foundation received over $5.7
    million from Koch Brothers related foundations between 1997 and
    2015.
        The Conservative Transparency project says that Heritage
    received $25 million in funding from the climate-denying Sarah
    Scaife Foundation.
        Similarly at Mercatus, the Mercatus Center has received at
    least $10.4 million from Koch Brothers related foundations.
        The Mercatus Center at George Mason University received at
    least $330,000 directly from Exxon Mobil since 1998 and
    Mercatus has received over $10 million from something called
    Donors Trust. Let me first ask you.
        Do you know what Donors Trust is?
        Dr. Beach. Thank you, Senator.
        I do not know what Donors Trust is.
        Senator Whitehouse. Do you know if they have any business?
        Dr. Beach. I do not know anything about Donors Trust.
        Senator Whitehouse. Has anyone in the time that you were
    serving as the Vice President for Policy Research at the
    Mercatus Center disclosed to you that they were donors to the
    Mercatus Center through Donors Trust?
        Dr. Beach. No, they have not.
        Senator Whitehouse. For the record, Donors Trust is a group
    that has no business purpose whatsoever. Its function is to
    launder the identities of donors that wish to give to
    organizations, but do not wish to have the organization tainted
    by the identity of the donor. Therefore, it is prominently used
    by climate-denying and fossil fuel interests to fund their
    front groups.
        The reason that I ask these questions, Dr. Beach, is that
    back when we were looking at the Lieberman-Warner Climate
    Security Act and other climate-related legislation.
        Dr. Beach. Yes.
        Senator Whitehouse. You were at the Heritage Foundation
    Center for Data Analysis, which did a report looking at
    compliance and energy cost increases, doing a cost-benefit
    analysis, in theory, of that legislation.
        That report was, in fact, used by the fossil fuel industry
    to oppose that legislation, was it not?
        Dr. Beach. I think I recall it was, yes.
        Senator Whitehouse. Yes, indeed.
        Was that report ever subjected to peer review?
        Dr. Beach. Yes, Senator.
        Senator Whitehouse. Really?
        Dr. Beach. Yes, Senator.
        Senator Whitehouse. Okay. My information is that it was
    non-peer reviewed.
        Dr. Beach. The most important pieces that came out of the
    Center for Data Analysis, I always made sure that they were
    given a peer review.
        Senator Whitehouse. You mean scientific peer review or
    just----
        Dr. Beach. No, this was in----
        Senator Whitehouse ----in the ordinary sense of the term?
    Right?
        Dr. Beach. Thank you. This was an econometric study. We
    used the Global Inside model, which was in widespread use
    throughout the Federal Government, to look at what would
    changes to carbon tax levels mean for consumer prices,
    investment, and so forth.
        Senator Whitehouse. Let me push this off to a question for
    the record, then, and we will ask you any question for the
    record exactly what the peer review steps were for this report
    and by whom.
        Did that report on the Lieberman-Warner Climate Security
    Act take into account any health or climate benefits from
    regulating carbon emissions?
        Dr. Beach. Senator, we believed that the benefits are
    embodied in the way the model evaluates costs.
        If you have cleaner energy, for example, you would have
    lower household costs for certain things, healthcare, for
    example. Your cars might cost a little bit more. The way that
    our----
        Senator Whitehouse. Your testimony to us is that your
    report on the Lieberman-Warner Climate Security Act does
    quantify the health or climate benefits of carbon emissions
    reduction?
        Dr. Beach. Senator, let me clarify.
        We were specifically interested in what would happen to
    household costs, business costs if the legislation became law.
        Senator Whitehouse. Okay. Well, we will follow-up.
        In your testimony, you said that you support the ruthless
    process of peer review, but our information is that this report
    was never subjected to peer review.
        You have said that you support neutrality and objectivity,
    but I do not believe you quantified the health or climate
    benefits, and we can explore that further in questions for the
    record.
        Finally, you say you stand for tough standards of
    transparency and disclosure, but for years, your organization
    has been funded by an organization devoted to identity
    laundering, which seems contrary to that.
        Senator Whitehouse. My time has expired, I am sorry to say.
        Senator Collins. Senator Baldwin.

                          Statement of Senator Baldwin

        Senator Baldwin. Thank you, Madam Chair.
        I would like to thank all of the witnesses for being here
    and your willingness to be engaged in public service.
        I would like to take my 5 minutes to discuss an issue that
    I have been working on very hard for the past year, and it
    concerns me deeply.
        It deals with the investigation into a barrel refurbishing
    company, Mid-America Steel Drum, with operations in the State
    of Wisconsin.
        It has been investigated for various violations including
    the dangerous mixing of unknown chemicals and their improper
    transportation and disposal.
        OSHA and other agencies are investigating, and while I do
    not have the time during this 5 minute block to go into all the
    details about the risks to which this company has exposed its
    workers and its community, I do ask unanimous consent, Madam
    Chair, that articles, from the ``Milwaukee Journal Sentinel''
    summarizing the investigations, be entered into the record.
        Senator Collins. Without objection. So ordered.
        [The following information can be found on page 51 in the
    appendix.:]
        Senator Baldwin. Thank you, Madam Chair.
        Mr. Mugno, in April, OSHA cited Mid-America Steel Drum for
    15 serious violations at its Milwaukee facility. The violations
    included the mixing of unknown reactive chemicals and exposing
    employees to reactive chemical hazards.
        Audio recordings of the Corporate Safety Manager, provided
    by a whistleblower, suggested the violations were willful.
    However, OSHA declined to cite the company for willful
    violations claiming the recordings, just 2 years old, could not
    be included as part of the current investigation.
        This was in spite of the fact that the recording showed
    that the current violations were the same ones that OSHA had
    previously called on the company to fix 2 years prior.
        The Milwaukee facility received only a $108,000 fine from
    OSHA and this fine could be reduced during negotiations.
        Mr. Mugno, my interactions with OSHA throughout this
    process have given me the impression of an agency that is
    hesitant to use its statutory authority to issue willful
    violations and full fines to protect workers and to incentivize
    employers to comply with the law.
        As Administrator of OSHA, how will you address this issue?
        Mr. Mugno. Thank you for the question, Senator.
        Unfortunately, I am not familiar with that particular case
    and that incident. I look forward to reading the record and
    those things that have just been admitted into the record on
    that.
        Should I be confirmed, I would certainly look into talking
    with the career professionals at OSHA to learn the details and
    the decisions that were made in that process.
        But without further details and not knowing exactly what
    has been done to this point, I am a little bit limited in what
    I can answer you on.
        Senator Baldwin. It is a little frustrating because I know
    we submitted these materials in preparation of your hearing so
    that you would have a chance to be briefed on them or read them
    yourself. I am sorry.
        I am going to ask some general questions surrounding this
    case, then, should you be confirmed, but it is disappointing
    that you are not more familiar with it.
        Mr. Mugno, the details of the Mid-America Steel Drum case
    would never have come to light if it were not for the actions
    of a whistleblower. He was a safety consultant at the company.
        Unfortunately, Occupational Safety and Health Act's
    whistleblower protections, they are woefully outdated at this
    time and might not protect him from retaliation. Certainly,
    they are outdated in comparison to more recent statutes in
    other agencies.
        Mr. Mugno, do you commit to studying the current gaps in
    Occupational Safety and Health Act's whistleblower protections
    and reporting back with your findings to this Committee in
    order to work together to improve whistleblower protections for
    workers?
        Mr. Mugno. Senator, I would be glad to, should I be
    confirmed, glad to consult with these career officials and
    experts in that arena for a whistleblower protection.
        I will tell you that as far as the whistleblower protection
    program as a whole that OSHA runs for several different
    statutes, as you pointed out, I am not necessarily familiar
    with all of them.
        However, to the ones that you just pointed out, I will
    certainly be willing to look at it along with OSHA, the
    Secretary's office, and conferring with you as to what we find,
    again, should I be confirmed.
        Senator Baldwin. If confirmed, will you commit to working
    with me and my staff to prioritize this investigation at the
    agency?
        Mr. Mugno. Senator, I would certainly look into looking at
    all those types of situations because I think, based on what I
    have heard from you describe today, there are concerns there
    and I would like to make sure that they are addressed across
    the board.
        Senator Baldwin. My time has run out.
        Senator Collins. Thank you.
        Senator Kaine.

                           Statement of Senator Kaine

        Senator Kaine. Thank you, Madam Chair.
        Thanks to all the witnesses.
        I am a University of Missouri grad, and Dr. Beach, good to
    see you, a Mizzou grad.
        I am also a Kansan. I have never been on a panel, seen a
    panel with two Washburn grads on it, so this is interesting,
    but I am going to direct most of my questions to Mr. Marcus.
        Mr. Marcus, I appreciated our conversation yesterday. One
    of the things we talked about, and it has been raised a little
    bit earlier, is this question of within OCR how disparate
    impact or disparate statistical outcomes will be analyzed to
    determine a potential civil rights violation.
        I would just like to summarize the conversation we had
    yesterday and have you correct me if I get it wrong. I
    generally feel like we were in pretty much agreement.
        If you see widely disparate statistics around something
    like discipline or assignment of students to special
    education--where minority kids are being treated different than
    Caucasian kids, for example--you and I both agree that those
    disparate statistics should, at a minimum, cause you to dig in
    further and try to determine what is the cause of the
    disparity.
        If there is an neutral reason offered to explain--reason or
    reasons--offered to explain the disparity, it is important to
    then dig in and first decide whether the reason is, in fact,
    accurately offered or was it, in fact, a pretext that is really
    covering up something else that is going on.
        Even if there is a legitimate, neutral factor, you then get
    to a third question of whether there would be an appropriate,
    in your case, sort of educational objective within the OCR's
    mission that could accomplish the same objective without
    leading to the disparities.
        That has been the way the OCR has approached disparate
    impact type analysis in the past and it is consistent with
    Federal case law.
        I gather from our discussion yesterday that you would
    continue to analyze disparate impact type complaints in the
    same way, should you be confirmed to the position.
        Do I fairly summarize our discussion?
        Mr. Marcus. I think you do, Senator.
        Now, the one thing I would add is that there was a question
    raised in Federal case law after the Sandoval decision. I think
    because of that Supreme Court case, civil rights lawyers are
    often careful to see whether one can provide additional
    evidence of different treatment, which is often a way of
    protecting a case or a finding.
        But I think that your discussion was accurate.
        Senator Kaine. Good. Thank you for that.
        The second thing I want to ask you about is a case that you
    and I talked about yesterday which is a case in Virginia that
    has been a painful one and that really gets at critical civil
    rights issues and also freedom of speech issues.
        There is a faculty member at Virginia Tech--the Brandeis
    Center has been involved in this case and I want to chat about
    it--a faculty member at Virginia Tech, whose social media
    presence was investigated by students in the faculty member's
    class, and the students came to believe that social media
    presence established that he was a white supremacist.
        The student went to the Virginia Tech administration and
    tried to complain. This is a faculty member that teaches a
    required freshman composition course. There is some significant
    suggestion that after the student's complaint, she was very
    unhappy with the University's response to it.
        The faculty member, or folks connected with the faculty
    member, even online encouraged some harassment of the student,
    harassment by calling her, even encouraging some supporters to
    potentially commit physical violence against her.
        The Brandeis Center laudably, I think, helped the student
    out and weighed in with the administration of Virginia Tech and
    said, ``You have to take this seriously.'' White supremacy is
    wrong. Neo-Nazi ideas are wrong. Especially in an educational
    environment having somebody with those views who is offering a
    required class, students might have to take this class who are
    Muslim students, or Jewish students. The Brandeis Center laid
    it out.
        I just would like you to tell the Committee a little bit
    about why the Brandeis Center thought that was such an
    important matter to get involved in and why the white
    supremacist views of this faculty member were something you
    found so anathema to the educational mission of the
    institution.
        Mr. Marcus. Well, thank you, Senator.
        We were pleased to have some involvement in the case. We
    had been approached, I believe, by an attorney who was
    representing at least one of the students or more of the
    students, but did not have expertise in this area.
        I found the case to be not only important, but shocking
    because it reflects what appears to be a growth in extreme
    white supremacists and even Neo-Nazi activity, which we have
    been following to some extent on the Internet and in social
    networks. But we were appalled to see it in someone who was an
    instructor at a public university.
        Of course, I personally, am appalled to see it in the
    Commonwealth of Virginia because I live there.
        Senator Kaine. You live there.
        Mr. Marcus. But the Louis D. Brandeis Center found it
    important to speak out against the grown of Neo-Nazism and
    white supremacy.
        Senator Kaine. While we could get into it, I do not have
    time to get into challenging questions about the academic
    freedom of a faculty member to advance controversial views.
    That freedom notwithstanding, it should be a burden on the
    leadership of the university, or any institution, to call out
    white supremacy and Neo-Nazism for what it is.
        Essentially, is what you asked the university to do in this
    case.
        Correct?
        Mr. Marcus. Correct. That is my view and the view of the
    Louis D. Brandeis Center.
        Senator Kaine. Great. Thank you.
        Thank you, Madam Chair.
        Senator Collins. Thank you.
        Senator Warren.

                          Statement of Senator Warren

        Senator Warren. Thank you, Madam Chairman.
        Mr. Marcus, if confirmed, you would be responsible for
    protecting the civil rights of American students at a time when
    Nazis and white supremacists are marching across college
    campuses with tiki torches, and many young people are literally
    afraid to go to school because of the hateful climate that has
    been fostered by Donald Trump.
        If confirmed, will you commit to fully enforcing civil
    rights laws and protecting all students from discrimination and
    harassment?
        Mr. Marcus. Yes.
        Senator Warren. Good.
        I just want to find out a little more detail about what
    that commitment means to you, and I thought we might go through
    a few situations.
        Mr. Marcus. Okay.
        Senator Warren. Let us start with an easy one.
        Say there is a school district that has some mostly white
    schools and some mostly black schools. Let us say that the
    mostly black schools have less experienced teachers, teachers
    with fewer qualifications. Those schools have fewer books. They
    have fewer computers in the library, fewer AP courses
    available.
        By any objective measure, those schools have clearly been
    shortchanged.
        If confirmed, would your Office step in to protect the
    civil rights of that district's black students?
        Mr. Marcus. If I were confirmed, I would ensure that any
    complaints alleging violation of Title VI would be reviewed.
        Senator Warren. Mr. Marcus, I do not want to start a dance
    here.
        This is a set of facts. They come to you in your position
    if you are confirmed. My question is, are those facts adequate?
    Will you step in to protect the civil rights of the district's
    black students?
        Mr. Marcus. Senator, I would certainly hope to be able to
    provide protection for the civil rights of those black students
    to the extent possible under law.
        Senator Warren. But that is the question I am asking, how
    you see this. You are allowed to answer hypotheticals here, so
    this one should be easy. A yes or a no.
        Would you step in on those facts or not?
        Mr. Marcus. I appreciate that, Senator. But unfortunately,
    in my experience the cases that OCR deals with are much more
    complicated.
        Senator Warren. You do not think that is enough evidence,
    what I have just said?
        Mr. Marcus. I think I would need to look at it very
    carefully.
        Senator Warren. Mr. Marcus, we have to move on, but I
    actually started with an easy one.
        Last year, the Office for Civil Rights investigated exactly
    that situation in Toledo, Ohio and it forced the school
    district to ensure that students have equal resources. That is
    the job of the Civil Rights Division at the Department of
    Education, the job that you are asking for here.
        Let me try another one.
        Given the climate of fear and uncertainty that Donald Trump
    has created for DREAMers, if a school said, ``We are happy to
    enroll all 5 year olds in kindergarten, but kids who cannot
    prove that they are citizens will be barred at the door.''
        Would your office step in to protect the civil rights of
    those students from discrimination?
        Mr. Marcus. Well, to my ear, Senator, that sounds like a
    violation of the law, but I do not know whether it would be a
    violation of one of the laws over which OCR has jurisdiction.
        There are certain rules here that would fall under the
    equal protection clause. We would step in, if I were confirmed,
    if there is a violation of one of OCR's statutes.
        Senator Warren. I am a little surprised to hear you split
    it that way.
        The Supreme Court ruled in ``Plyler v. Doe'' that this type
    of discrimination would clearly be an unconstitutional
    violation of the 14th Amendment.
        Are you saying that your office would not step in to
    enforce that?
        Mr. Marcus. Well, Senator, I suppose there is a question
    about the jurisdiction of the Department of Education to deal
    with issues under the equal protection clause.
        But generally speaking, the Office for Civil Rights has
    jurisdiction over statutes like Title VI that has not, to my
    knowledge, been granted the authority to enforce the equal
    protection clause per se.
        Senator Warren. I am shocked by that answer.
        The job that you are applying for here is to enforce civil
    rights protections and to be the advocate in the Department of
    Education for exactly that job. You can say if you think you
    need help from Department of Justice in that.
        It would be a perfectly reasonable answer to say, ``I will
    bring in the Department of Justice and we will work together on
    this.'' But the idea that you would----
        What I am hearing you say is, ``I would take a pass on
    this,'' or might take a pass, gives me a great deal of concern.
        I have just given you two hypotheticals. I am going to do
    more in writing.
        [The following information can be found on page 213 in the
    appendix.:]
        Senator Warren. I want to be respectful of the time here,
    but I do not think we need someone in this position whose view
    of civil rights enforcement is to do as little as possible to
    protect as few students as possible.
        I think that would be bad for students overall and with
    Betsy DeVos as Secretary of Education, I think it would be even
    worse.
        Thank you, Madam Chairwoman.
        Senator Collins. Did you want to respond, Mr. Marcus?
        Mr. Marcus. If I may, Madam Chair.
        Senator Collins. Yes.
        Mr. Marcus. Thank you.
        Thank you, Senator Warren, for those questions. I would
    like to clarify because if confirmed, my position would be the
    opposite.
        My position would be that I would want to ensure that the
    Office for Civil Rights enforces civil rights laws to the
    maximum extent permissible within the law.
        Now in the hypothetical that you mentioned, it seems to me
    that there may or may not be a situation in which the
    Department of Justice has a role in these. That would not be my
    call.
        It is my understanding that when the Department of
    Education interacts with the Department of Justice, it is
    typically through the Office of General Counsel.
        Now, if the Office of General Counsel had an issue with
    justice that pertains to civil rights, I would certainly be
    pleased to work with colleagues to sort out what the
    appropriate steps should be.
        Senator Warren. If I could, just for a few seconds, and I
    recognize we are over time here, Madam Chair.
        But this is my concern. These positions are positions of
    judgment and what we are really looking for is, what is your
    inclination here?
        Is your inclination to say, ``I want to go in. I want to
    raise this set of issues?'' Ultimately to say, ``I am willing.
    I recognize a court may have to decide this at some point, but
    I see my job as to act on behalf of the students.''
        I have given you two cases that, I think, legally are quite
    clear. What I am hearing from you is that you are tepid on this
    and that just gives me concern in this space.
        I should quit.
        Thank you, Madam Chair.
        Senator Collins. Thank you, Senator.
        I was intending to adjourn the hearing now, but I first
    want to check with the Ranking Member to see if those on the
    democratic side desire a second round of questions.
        Senator Murray. I did have a second round and I am not sure
    anybody else did. Senator Hassan?
        Senator Collins. Okay.
        Senator Murray. Fair enough.
        Senator Collins. Then sadly, panel, I regret to inform you
    that we will be having a second round of questions.
        Mr. Marcus, let me start with a quick question for you.
        In March, every Member of the Senate--the entire Senate, we
    hardly agree on anything--but the entire Senate came together
    and signed a letter to the Justice Department, the Department
    of Homeland Security, and the FBI urging action in response to
    threats that were being made against Jewish community centers,
    Jewish day schools, and synagogues.
        I know that in your current role at the Brandeis Center,
    you have been a leader in combating the rise of anti-Semitism
    on college campuses.
        What goals do you have for the Office of Civil Rights with
    respect to addressing all hate motivated crimes and conduct
    involving or taking place at schools and institutions of higher
    education?
        Mr. Marcus. Thank you, Madam Chair.
        Thank you, in particular, for indicating both that the
    Louis D. Brandeis Center has had a particular mission that I
    have been honored to serve, but that if I were confirmed for
    this position at the Office for Civil Rights, that is an agency
    with a different and much broader mission.
        If I were confirmed to that position, I would work to
    strengthen the civil rights protections of all students, and
    that includes stronger and more effective enforcement. It can
    include clearer policy. It can include more effective or
    greater technical assistance to recipient institutions. It can
    include, more broadly, working with career staff to make sure
    that the process is run better, more effectively, and more
    forcefully.
        Senator Collins. Thank you.
        Senator Murray.
        Senator Murray. Thank you very much.
        In 2004, this Committee changed the Individuals with
    Disabilities Education Act to require states to examine whether
    they put significantly more students with disabilities, or
    students of color, into special education, segregated settings,
    or whether they disciplined some groups of students more than
    the others.
        Yet 11 years later, the GAO found that inconsistencies
    allowed some states to continue those harmful and
    discriminatory practices. GAO recommended the Department, and I
    want to quote, ``Develop a standard approach for defining
    significant disproportionality to be used by all states.''
        That is why I praised the Department of Education when it
    issued a final rule that required all states to act by 2019--
    fifteen years, by the way--after this became a requirement in
    the law.
        I was deeply disappointed by reports that Secretary DeVos
    is considering stalling again this implementation of this rule.
        Mr. Collett, I wanted to ask you. One of the most important
    jobs of the Assistant Secretary is to advocate for children
    with disabilities and their families. I want to ask you.
        If you are confirmed, will you commit to fight efforts by
    Secretary DeVos and the Trump administration to delay or
    rollback that important regulation?
        Mr. Collett. Thank you, Senator, for the question.
        I am familiar with the situation. Of course, I am grateful
    that within the Individuals with Disabilities Education Act
    that you referenced, there are requirements that states have to
    look at those data and make decisions based on inappropriate or
    disproportionate disciplinary actions, or placement, or
    identification, as you mentioned.
        We have protections in IDEA.
        Senator Murray. Are you going to fight rolling that back
    again or delaying it again?
        Mr. Collett. I will uphold the protections in IDEA and to
    the extent that this is a part of any agency, the Department of
    Education's response to the executive order about regulatory
    review, it would be inappropriate for me to comment on that.
        Senator Murray. I would find it appalling if, after 15
    years, you were delaying it.
        I have also been disappointed by this Administration's
    implementation of the Every Student Succeeds Act and the
    Secretary is not enforcing all the law's requirements.
        IDEA and ESSA require the assessment of all students. ESSA
    clarified that no more than 1 percent of students may be
    assessed using the simplified alternate assessment for students
    with the most significant cognitive disabilities.
        Now this is important because this assessment usually
    determines the rigor of instruction students get. But now we
    are seeing, as states submit their plans, we have seen them ask
    for a waiver from that requirement.
        Now, the assistant secretary advises the secretary on
    issues pertaining to students with disabilities, and this is
    clearly an issue that cuts across both IDEA and ESSA.
        Will you commit to standing up to the Secretary and telling
    her that waiving this requirement will lower expectations and
    hurt the future of these children?
        Mr. Collett. Thank you, for the additional question.
        One of the things that I think, and I am confident that the
    Secretary of Education would expect me to do in advising her is
    to advise her based on my knowledge, based on my skills, based
    on my dispositions, and values, and how I have led.
        I assure you, and commit to you, and every Member of the
    Committee, that every day, I will advise her consistent with
    the law and consistent with how I have led, what I believe, and
    standing up for kids and what is best for kids.
        One of the things that I would highlight, Senator, if I
    may, is throughout my career and I mentioned again in my
    opening remarks, I talk every day, multiple times a day about
    having high expectations and ensuring appropriate supports for
    each child. That includes students with significant cognitive
    disabilities.
        Senator Murray. Okay.
        Mr. Collett. I would. I am always in favor of, and will
    advise the Secretary accordingly with respect to high
    expectations for each student and appropriate supports.
        Senator Murray. Okay. Well, let me just say this.
        We know that there are about one-half percent of students
    with the most significant cognitive disabilities in every
    state. 1 percent is more than adequate. It is really important
    that you stand up for those students whose future, too often,
    is foreclosed on by low expectations at a very young age.
        I want to say one other thing for the record for this
    Committee about the Secretary's waiver authority.
        Yes, ESSA maintains the Secretary's waiver authority.
    However, one of the reasons Senator Alexander and I worked
    together to pass ESSA was to end administering Federal
    education law by waiver.
        ESSA has only begun to be implemented and allowing states
    to waive core accountability requirements, like this 1 percent
    cap, before any state has even implemented these core
    requirements, I believe is not in keeping with the intent of
    reauthorizing the law, and it is not right for our Nation's
    children.
        Thank you, Madam Chair.
        Senator Collins. Thank you.
        Senator Hassan.
        Senator Hassan. Thank you, Madam Chair.
        Senator Warren has a markup to go to, so if we can go out
    of order, that would be great.
        Senator Collins. Yes.
        Senator Warren. Thank you.
        Thank you very much, Senator Hassan.
        Thank you, Madam Chair.
        Since the Occupational Health and Safety Administration was
    created in 1970, deaths and serious injuries at work have come
    down by 65 percent. Even so, more than 3 million people are
    seriously injured and more than 4,800 workers are killed every
    year on the job.
        OSHA's budget is so tight now that they have only enough
    people to inspect workplaces in America once every 150 years.
    That is why deterrence is so important.
        One way to deter companies from cutting corners and
    endangering workers is to hold employers, who violate safety
    laws, personally accountable for the deaths of their workers.
        Mr. Mugno, if you are confirmed to run OSHA, will you
    commit to pursuing criminal penalties, including jail time, for
    employers who willfully violate health and safety laws and end
    up killing an employee?
        Mr. Mugno. Thank you for the question, Senator.
        If the circumstances are right, the elements are met, in
    consultation with the Solicitor's Office of the Department of
    Justice, yes. I have talked to the Secretary about that and I
    know that he feels the same way under those circumstances.
        Senator Warren. I think it is very important.
        Another way, let us talk about another way to deter
    companies from taking dangerous shortcuts on worker safety is
    to publicize fines and penalties.
        Now, during the Obama administration, OSHA issued a press
    release on an inspection if it resulted in violations and
    penalties over $40,000. OSHA issued about 400 press releases a
    year based on their enforcement actions during the Obama
    administration.
        After President Trump's inauguration, OSHA stopped issuing
    these enforcement releases almost entirely. In the first 10
    months of this Administration, OSHA has issued just 36 of these
    releases.
        Mr. Mugno, will you commit to reinstating the deterrence
    policy of issuing press releases for major violations?
        Mr. Mugno. Thank you, Senator.
        Being a nominee, I am not sure what went into the decisions
    in prior administrations or the current administration.
        But what I would do is, once confirmed and in there, I
    would consult with those career experts as to what the criteria
    is, and why did they do that, and how do they do that. I would
    be interested in finding out where we set that.
        I do agree that communication of these types of events has
    an advantage in others knowing what is happening out there. I
    think that is why this is critical and to find out what the
    right criteria is.
        Senator Warren. Mr. Mugno, I am not asking about what is
    the policy of others. I am asking about your policy. Surely,
    you have thought about this. You are asking to be confirmed in
    this role and I just want to know your policy, how you see it
    in terms of publicizing when employers have been found in
    violation, significant violation, of health and safety laws.
        Mr. Mugno. I understand, Senator.
        Senator Warren. What is your policy?
        Mr. Mugno. Again, I think communication of these types of
    items is----
        Senator Warren. Your policy is you will commit, then, to
    publish this information?
        Mr. Mugno. Again, I would like to find out what the
    correct, the elements they already use in order to make that
    threshold.
        You, yourself, mentioned that there was a $40,000 threshold
    before. I am sure there was one before and those are the things
    I want to learn about should I be confirmed.
        Senator Warren. You have no policy other than to learn the
    policy of others?
        Mr. Mugno. Yes.
        Senator Warren. Companies that skirt safety rules should be
    punished to the fullest extent of the law, but companies that
    hold Federal contracts paid for with taxpayer dollars should be
    held to an even higher standard.
        Mr. Mugno, do you agree that the Department of Labor should
    not contract with companies that have violated health and
    safety laws?
        Mr. Mugno. I believe----
        Thank you for the question, Senator.
        I believe it is important to look at what those violations
    are and what the criteria for those are in that sense.
        Senator Warren. Is that a no?
        Mr. Mugno. It is not a no, sir.
        Senator Warren. Is it a yes?
        Mr. Mugno. Senator, it is about looking at what the whole
    context of that employer is about in that situation,
        Senator Warren. The whole context is employers who have
    violated health and safety laws, and that those employers
    should still be eligible for Federal contracts at the
    Department of Labor?
        Mr. Mugno. Again, I believe that the criteria there are
    very critical as to how that works.
        Senator Warren. Let me ask another question.
        Will you commit to informing the agency's contracting
    officers of all OSHA violations for the companies that the
    Department contracts with?
        Mr. Mugno. Senator, I do not know how that is done today,
    but I will certainly look, worth looking into should I be
    confirmed and get in there.
        Senator Warren. I am not asking is it worth looking into. I
    am asking if you will commit to at least give the information
    to the contracting officers that those companies are in
    violation of current health and safety laws.
        Mr. Mugno. Again, Senator, I just do not feel I have enough
    facts to give you that.
        Senator Warren. I take that as a no.
        Thank you.
        Senator Murray [presiding]. Senator Hassan.
        Senator Hassan. Thank you very much, Senator Murray.
        Again, panel, thank you, and I know I am between you and
    the end of the hearing. I wanted to start with a question to
    you, Mr. Marcus.
        On June 8, Acting Assistant Secretary Jackson released an
    internal memo which directed regional offices to no longer do a
    3-year look back on data to determine whether the complaint at
    issue before OCR is part of a systemic institutional violation.
        The memo went so far as to specify that the Office of Civil
    Rights may only apply a systemic or class action when the
    complaint allegations themselves raise systemic concerns.
        But many times individuals bringing complaints forward are
    not familiar themselves with facts that would support an
    allegation of a systemic violation. As a result, may not
    specify those concerns in their claim. They may also be unaware
    of the legal basis for such a complaint.
        This is common for complaints under the Americans with
    Disabilities Act in Section 504 of the Rehabilitation Act, for
    example.
        Do you agree with Acting Assistant Secretary Jackson that
    the onus of whether a systemic complaint is brought forward
    should be on a claimant?
        Mr. Marcus. Thank you, Senator.
        I believe that there is a role for systemic investigations,
    just as there is a role for individual investigations, and that
    the decision should be made on, backed by a fact specific case
    by case basis.
        I do think that there are times when an individual
    investigation should be turned into a systemic investigation.
    Moreover, I think that there is a role for systemic compliance
    reviews to be initiated by the Department.
        Senator Hassan. Well, thank you, and I look forward to your
    commitment, then, to reviewing this internal document and
    reporting to the Committee with your findings and any proposed
    changes, because I do think that this is the type of discretion
    OCR has.
        when a complainant does not know about other facts that
    would lead to a systemic violation finding, I think it is
    really important that the Department have the discretion and
    flexibility to look for that and help make change for the
    people you are trying to protect.
        Does that make sense to you?
        Mr. Marcus. It does, Senator. Thank you.
        Senator Hassan. Thank you.
        Mr. Mugno, strong and targeted enforcement by the Labor
    Department not only saves lives, but also saves valuable
    resources for employers. A substantial body of empirical
    evidence demonstrates that OSHA inspections reduce injury rates
    at inspected workplaces and lowers workers' compensation costs
    to the tune of billions of dollars annually.
        The Federal Occupational Safety and Health Administration
    has about 45 percent fewer inspectors than it had in 1980 when
    the workforce was almost half of current levels.
        In 2015, New Hampshire had only 7 OSHA inspectors to
    oversee safety and health at 50,000 work sites. With these
    numbers, it would take OSHA 122 years to inspect every
    workplace in New Hampshire just once. That means that OSHA
    agents are forced to triage the workplaces they inspect.
        First of all, do you think OSHA should target inspections
    to the most dangerous workplaces or the most dangerous
    industries?
        Mr. Mugno. Thank you, Senator, for the question.
        Yes, if we can make more efficient and effective
    inspections on those areas where we think that we can reduce
    fatalities and injuries the most, we should.
        Senator Hassan. Okay.
        Will you commit to pushing for greater enforcement
    resources to ensure safe workplaces?
        Mr. Mugno. If confirmed, that and the other tools that, I
    think, will ensure compliance, and spread and sustain safety
    and health. if I recall correctly, in the current budget,
    enforcement did get an increase in funding.
        Senator Hassan. Well, I would look forward to working with
    you on that.
        Finally, I want to circle back, Mr. Collett, to you because
    I want to give you an additional chance to talk about this
    issue of notification to families of students with disabilities
    when they are themselves using a publicly funded voucher to
    place a student who experiences disabilities in a private
    school.
        You very compellingly spoke about your student focused
    approach to everything you do, and I appreciate that very, very
    much.
        It seems to me that when we have Secretary DeVos and the
    President talking about taking $20 billion of Federal education
    dollars and investing it in largely unaccountable voucher
    programs and voucher schools that a student-centered approach
    would require that those voucher schools, those private schools
    give, at least, notice to the students that they will lose
    their rights under IDEA if they come to that school.
        Can you comment on that a little bit further because your
    answer earlier about this left something to be desired from my
    perspective?
        Mr. Collett. Thank you, for the opportunity, Senator, to
    respond a bit further and to clarify.
        It concerns me anytime a parent, any parent would feel like
    they did not have the information they needed to make an
    informed choice.
        Senator Hassan. Let me just stop you there.
        Mr. Collett. Sure.
        Senator Hassan. It is not just about an informed choice. It
    is about giving up somebody's rights under the law.
        We are talking about a voucher program that, if
    implemented, will undermine public schools across this country.
    Public schools are accountable under the law to make sure that
    each kid, including kids who experience disabilities, gets a
    free and appropriate education.
        That under current and under the current interpretation by
    this Administration, that right will evaporate once a student
    and family takes those voucher dollars, which are often public
    state dollars, and goes to a school, even if the school has
    marketed to the student with a disability.
        Now, all of a sudden, 6 months, a year in a child's life
    when they are in a school that does not have the tools to
    educate them is a huge length of time.
        What I am looking for and, I think, what the Committee is
    looking for is a commitment that if this voucher program is
    going to go forward that you all will stand up and insist that
    private schools, at least, tell kids that they are losing their
    civil rights under the law if they go there.
        Mr. Collett. Thank you.
        It is my understanding--and if my understanding is
    incorrect, I always look forward to learning--but it is my
    understanding that the Department does not have the authority
    to tell states and require states to provide that information
    to parents.
        That is my understanding. Again, I am happy to learn if
    that is different.
        Senator Hassan. I am over time, and I appreciate the
    Chair's indulgence here, and your patience.
        Mr. Collett. Sure.
        Senator Hassan. What I would like to do is ask a question
    on the record.
        What I am looking for is the Department to say to states
    that are doing voucher programs that they have to at least
    provide this notice.
        My guess is that you all can figure out a way under the law
    to do that.
        Thank you.
        Mr. Collette. Thank you.
        Senator Murray. Thank you very much, Senator Hassan.
        Thank you to all of our witnesses.
        If Senators wish to ask additional questions of the
    nominees, questions for the record are due by five o'clock,
    Thursday, December 7.
        For all other matters, the hearing record will remain open
    for 10 days. Members may submit additional information for the
    record within that time.
        Senator Murray. The next meeting of this HELP Committee
    will be a hearing Thursday, December 7 at 10 a.m. on the
    implementation of the 21st Century Cures Act.
        Thank you all for being here today.
        This Committee stands adjourned.
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                             Questions and Answers

     Response by William Beach to Questions of Senator Alexander, Senator
       Scott, Senator Young, Senator Murkowski, Senator Murray, Senator
                 Whitehouse, Senator Warren, and Senator Kaine
                               senator alexander
        Question 1. The Household Survey, also known as the Current
    Population Survey, is an important tool to measure the workforce. What
    ideas do you have to better educate the public about that survey?
        Answer. If confirmed, I'll work with the staff of the BLS to
    improve public communication of entire array of BLS products, but
    especially of the fruitful Current Population Survey. Few surveys in
    the history of government has been as productive of research and better
    understanding of our economic and social world as the CPS. Clearly, we
    could do more marketing of CPS data on social media, through the
    traditional national media, and through professional associations and
    societies. It also is worth thinking about initiating more use in the
    nation's high schools and colleges of this wonderful monthly survey.
                                 senator scott
        Dr. Beach, as you know the North American Industry Classification
    System (NAICS) is utilized by the Bureau of Labor Statistics to
    organize workforce data. NAICS was created in 1997, however most
    industries in 2017 do not look or operate as they did 20 years ago, due
    in large part to the growth in technology roles alone. In 1997: Apple
    was only in the computer business, Amazon was largely just into books,
    and uber was not what one used to get from point A to point B.
        As a result of categorizing workers by the physical building they
    work in and not the company/industry they work for, the data is
    distorted. Economic and public reporting of this data continues,
    presenting inaccurate accounts of industry sizes and shifts, as there
    is no alternative data.
        Take for example, a retail company, where workers would fall into
    multiple NAICS industries. Despite being employed by a retail company,
    an order filler could fall into the ``Distribution Center'' industry if
    they work in a retailer's distribution center, while an accountant
    would fall into the ``Management of Companies'' industry because they
    work in the retailer's office building. Because they do not work in a
    building whose main function is a store, these employees are not
    considered retail industry employees in the data.
        Other industries are facing the same situation as well, as many
    employees work in industries and occupations that are not directly
    reflected by the building they work in.

        Question 1. Will you consider working with industry groups to
    develop alternative datasets and outputs that represent modern
    industries?
        Question 2. Will you commit to developing datasets to measure and
    track modern industries as a whole?
        Answer. A core element of BLS's mission is to present the current
    economy to citizens and policymakers. They do this through surveys and
    extensive research on how the economy is changing, particularly how the
    workplace and workforce are evolving. This element of the mission dates
    back to BLS's founding when it principally studied the development of
    the urban workforce at the end of the 19th Century.

        If confirmed, I will work closely with BLS staff, academics, and
    economists to move BLS into a better understanding of the current
    structure of economic activity. We lack a full picture of how Americans
    earn their living, of where and under what conditions they work, and of
    what forms of work and work environments are vanishing. We lack, as
    well, a good understanding of the effects of globalization on work and
    earnings.
        I look forward to working with you to advance a better appreciation
    of the current economy.
                                 senator young
        The workforce of the 21st Century is experiencing new challenges
    and opportunities not envisioned in past years. Workers are now seeking
    ``alternative work arrangements'' that provide more flexibility than
    the traditional 9am--5pm job. These alternative work arrangements can
    offer greater independence, flexibility in choosing hours, or a chance
    for retired individuals to participate in the workforce. According to a
    report from McKinsey Global Institute, approximately 20-30 percent of
    all workers in Europe and the United States engage in some form of
    independent work. If confirmed as the Commissioner of Labor Statistics,
    you will have jurisdiction over a wide range of data collection efforts
    managed by the Bureau of Labor Statistics.
        Question 1. What role will the Bureau of Labor Statistics play in
    understanding the 21st Century economy?
            a. Under your direction, how will data collection efforts help
            to inform policymakers looking to address issues surrounding
            this ``independent workforce''?
            Answer. If confirmed, I will immediately begin working with my
            BLS colleagues in a vigorous effort to gain a better
            understanding of the current economy. That effort will extend,
            as well, to a partnership with Census and the Bureau of
            Economic Analysis (Commerce Department) to capture the shape
            and contents of the economy. We lack a full picture of how
            Americans earn their living, of where and under what conditions
            they work, and of what forms of work and work environments are
            vanishing. We lack, as well, a good understanding of the
            effects of globalization on work and earnings. I look forward
            to working with you as we deepen our understanding of
            contemporary economic life.

        The Contingent Worker and Alternative Work Arrangement Supplement
    (CWS) to the Current Population Survey will be crucial to understanding
    the size and scope of participants in this independent workforce. This
    data was last collected in 2005, though a new round was recently
    launched earlier this year. As our country experiences a multitude of
    changes and advancements in technology, regular data collection efforts
    on the independent workforce and the gig economy will guide
    policymakers to make sure that we are not just responding, but
    anticipating these new challenges.
        Question 2. In your opinion, what benefit does this Contingent
    Worker and Alternative Work Arrangement Supplement provide?
        Question 2a. Under your direction, how will you view data
    collection efforts like this, and do you see value in regular data
    collection efforts?
        Answer. There likely are a number of policy insights to be derived
    from a better understanding of the contingent workforce. That said, my
    main interest, if confirmed, will be to lead BLS toward a better
    description of the current workforce, which vitally depends on a deeper
    appreciation of the contingent worker's workplace and work life. We
    will no doubt sharpen our knowledge of the economic product they
    produce, which could lead to a sharper, more accurate GDP estimate.
        I see this effort as indicative of similar new initiatives that we
    will need on the workforce and on prices indexes if we are to properly
    document the state of the current economy. The economic world
    constantly changes; and, as it does, so must the economic data
    collection efforts of the BLS.

                               senator murkowski
        Question 1. In 2011, the U.S. Department of Labor transferred the
    estimation work done for the Current Employment Statistics program from
    the states to the Bureau of Labor Statistics. This change was proposed
    in order to save $5 million. At the time, state workforce agencies
    strongly opposed this proposal due to concerns that data quality would
    erode. The National Association of State Workforce Agencies noted,
    among other concerns, that ``Estimated monthly employment changes have
    been much more volatile with the reduction in state analyst input and
    authority--centrally generated estimates did not reflect economic
    reality--states' production of state and metropolitan estimates would
    cease'' and that combined with other actions by BLS to ``exert greater
    control of state and metropolitan area estimates, BLS severely limited
    state analysts' ability to make interventions in the statewide
    estimates--based on state analysts' local knowledge.'' I am informed by
    the Alaska Department of Labor and Workforce Development that the
    predicted deterioration in the quality of the Current Employment
    Statistics estimates has occurred for Alaska and a number of other
    small states. Further, the estimates produced for Alaska by the Bureau
    ``are bad enough that we stopped referring to them at all in our
    monthly unemployment rate/jobs press release''. As an example, the U.S.
    Department of Labor's Current Employment Statistics numbers for this
    past summer were ``way off'' and Alaska's Department of Labor would
    ``have lost credibility trying to explain'' the estimates. Will you
    commit to reviewing this situation with Alaska's Department of Labor
    and Workforce Development and working to fix these problems?
        Answer. Reasonably accurate and complete estimates of the workforce
    are crucial to well-functioning government programs and to many private
    initiatives. If confirmed, I will work with staff of the BLS to assess
    the success of the CES, with a particular emphasis on states with
    smaller populations.
                                 senator murray
        Question 1. If confirmed, what are your priorities for the BLS?
        Answer. I am, first and foremost, focused on advancing the
    integrity and independence of BLS. On a more substantive level, I want
    to support efforts to improve the quality, accuracy, and timeliness of
    the data BLS publishes. In addition, I want to encourage a better
    understanding of today's workplace and workforce.

        Question 2. How have you used BLS data in your research? Please
    provide examples.
        Answer. I have used BLS data over my entire career, from building
    revenue estimation models (where employment data played a crucial role)
    for that State of Missouri at the beginning of my professional life to
    writing policy papers requiring BLS employment or price data while I
    worked at Heritage and the Senate.

        Question 3. Do you feel it is important for BLS to better publicize
    the importance of its data?
        Answer. The products of BLS add significantly to the data
    infrastructure of the US economy. All of the stakeholders in BLS
    programs should better know this contribution.

        Question 4. Do you intend to eliminate or shrink any BLS programs?
        Answer. It is not my intention, however, if confirmed, I will work
    with the funds that are appropriated by Congress to fulfill the mission
    of the BLS. I cannot commit to insulate any one program from a
    reduction should the budget passed by Congress include reduced funding.

        Question 5. Do you believe the BLS is adequately funded? If not,
    would you advocate for a budget increase? How would you engage in such
    advocacy?
        Answer. If confirmed, I will work with the funds that are
    appropriated by Congress to fulfill the mission of the BLS.

        Question 6. Do businesses, the government, and private citizens
    need BLS data? Why is it that the private sector is unable to meet this
    need?
        Answer. BLS data are widely viewed as non-partisan, expertly
    created, and reliable from time period to time period. Businesses
    extensively use the products of BLS with confidence that they are the
    best estimates possible. For example, CPI estimates often are built
    into contracts that require action when inflation reaches specified
    levels.

        Question 7. Do you support combining the statistical agencies into
    a StatsUSA in order to share services and data more easily?
        Answer. It is my understanding that any change to the current
    structure of statistical agencies would likely require a change in the
    law. Should I be confirmed, I would fully comply with any change in
    statute.

        Question 8. Do you support the recommendations of the Ryan-Murray
    Commission on Evidence-Based Policymaking? What is your view of the
    ``Foundations for Evidence-Based Policymaking Act of 2017'' passed by
    the House last month?
        Answer. I have not studied in detail the recommendations of the
    Commission nor am I familiar with the Foundations for Evidence-Based
    Policymaking Act of 2017. I will state, however, my support of
    providing the best, non-privileged data in support of the work of
    policymakers charged with addressing pressing public problems.

        Question 9. What are your views on balancing the goal of expanding
    access to data with concerns over maintaining the privacy of such data?
    Do you believe it is possible to improve both access to and privacy of
    confidential data? Please explain.
        Answer. Government agencies must protect personal and business
    data, which generally means keeping those data from public
    distribution. However, the Internal Revenue Service has demonstrated
    that it is possible to release public use datasets created from
    otherwise private data by sampling those data and masking them through
    top coding and averaging. Other governmental bodies create such public
    use files that support research while protecting sensitive information.

        Question 10. Do you support making data available publicly for
    research and informational purposes?
        Answer. Generally, yes, with the protections against disclosure of
    private data indicated in my answer to question 9 above.

        Question 11. Do you support intra-agency agreements for data
    matching to enhance the scope of available data? Under what conditions
    should matched data be available to non-government researchers?
        Answer. Subject to the statutory constraints on intra-agency
    sharing of data created after Watergate, I believe that data matching
    of administrative records frequently produces a better foundation for
    decisions by policymakers than use of aggregated data. Again, as
    mentioned in previous answers, privacy considerations enter in to any
    decision to provide data to government and non-government researchers.
    The BLS also maintains standards of access that, in part, turn on
    disclosure agreements executed by BLS and researchers.
        Question 12. Do you support matching survey data to administrative
    records for increased efficiency and improving data quality? Under what
    conditions should matched data be available to non-government
    researchers?
        Answer. Yes, subject to the constraints and considerations
    mentioned in my answer to question 11. Providing access to non-
    government researchers of such matched data should be subject to the
    use and disclosure standards currently maintained by BLS.

        Question 13. Does consolidation of IT operations with those of
    other DOL agencies pose a risk to BLS independence from political
    influence?
        Answer. I believe that providing for greater efficiencies that do
    not pose a risk to the independence of the Bureau merit consideration.

        Question 14. Which stakeholder groups are the most important for
    BLS to be in touch with? How will you maintain contact with them?
        Answer. There are a number of stakeholders important to BLS's
    success. I will know more about the roles played by these groups if I
    am confirmed. However, those big users of BLS data-academic researchers
    and their professional organizations, government researchers, and
    analysts working in private businesses-clearly constitute the major
    supporters of BLS's work. In addition, the BLS needs to maintain
    excellent relations with the Congress and the key administrative
    agencies. If confirmed, I will support the Bureau's strategic plan for
    improving communication with all users of BLS products and make a
    special effort to secure and advance the support of the three major
    segments mentioned above.

        Question 15. Which specific, affirmative measures will you take if
    the President or any cabinet official in the executive branch
    disparages the integrity, reliability or authenticity of BLS data?
        Answer. If confirmed, I would fully comply with the law and
    maintain the integrity of BLS's mission without regard to political
    pressure. BLS must be viewed as a reliable collector of data and I will
    insist that BLS continue its tradition of being insulated from
    political interference.

        Question 16. Which specific procedures would you implement at BLS
    to minimize the agency's exposure to political intervention in light of
    the current President's history of disparaging BLS data?
        Answer. If confirmed, I would fully comply with the law and
    maintain the integrity of BLS's mission without regard to political
    pressure. BLS must be viewed as a reliable collector of data and I will
    insist that BLS continue its tradition of being insulated from
    political interference.

        Question 17. Do you commit to alerting this Committee if you are
    asked by the President or a political appointee of the President to
    change or conceal BLS data or engage in any other activity which may
    compromise the independence and integrity of BLS?
        Answer. If confirmed, I would fully comply with the law and
    maintain the integrity of BLS's mission without regard to political
    pressure. BLS must be viewed as a reliable collector of data and I will
    insist that BLS continue its tradition of being insulated from
    political interference.

        Question 18. Data is critical to better understanding the future of
    work and trends in the labor market--especially the changing nature of
    work relationships, such as independent contracting, ``temp'' work,
    labor staffing and the proliferation of ``gig'' economy jobs. As you
    know, the main BLS product relevant to these developments is the Survey
    of Contingent Work and Alternative Work Arrangements, which was fielded
    in May 2017 as a supplement to the current population survey. Do you
    support the development of this survey? Should it continue beyond 2018?
        Answer. Yes, I support this survey and hope to continue it beyond
    2018.

        Question 19. The Survey of Contingent Work and Alternative Work
    Arrangements has allowed for a better understanding of the types of
    work and characteristics of the workers doing the work. However, a
    better understanding of the employers' side of the equation is
    necessary. What would you recommend changing or adding to existing
    surveys to study evolving employer decisions and business practices
    that drive these changes?
        Answer. If confirmed, I will work with BLS analysts to find ways to
    better understand America's evolving workplace and workforce. The
    effort will cover all of the employment surveys, including the Survey
    of Contingent Work and Alternative Work. What changes I would recommend
    making to this and the other employment surveys will depend on what I
    learn about current plans at BLS, should I be confirmed.

        Question 20. During the 1990's, BLS conducted a survey of the
    amount of formal training that employers provided or financed for their
    employees. Such data is key to fill in existing gaps in our knowledge
    relating to the workforce training system. Would you recommend that BLS
    conduct such a survey again? If not, why not?
        Answer. If confirmed, I will study the pros and cons of conducting
    a survey of employer provided training. I lack the information at this
    point to adequately answer your question.

        Question 21. In 1982, the Labor Department dramatically narrowed
    its efforts to collect data on work stoppages, announcing that it would
    up the threshold of data collection on work stoppages involving at
    least six workers to those involving over 1,000 workers.\1\ This has
    caused Federal policymakers to lose information on trends in labor-
    management relations, specifically, how often labor and management
    revert to their respective, so-called ``economic weapons'' of strikes
    and lockouts. Would you recommend that BLS return to its earlier data-
    collection threshold of work stoppages involving at least six workers?
    If not, why not?
    ---------------------------------------------------------------------------
        \1\ L.J. Perry and Patrick Wilson, ``Trends in Work Stoppages: A
    Global Perspective, International Labour Organization,'' International
    Labour Office Working Paper 47 (2004): 10.
    ---------------------------------------------------------------------------
        Answer. If confirmed, I will study the possibility of re-
    instituting the survey of work stoppages that you reference in your
    question. I do not have enough information now on the reasons for the
    discontinuation to answer your question adequately.

        Question 22. Do you support Data Synchronization legislation to
    allow the Census to share its business register with BLS for the
    purposes of synchronizing lists across the two agencies?
        Answer. It has struck me for many years that we would support
    better policymaking decisions if statistical agencies matched or
    synchronized data series for which there are little or no privacy
    concerns. On the specifics of your question, however, I would need more
    information to frame an adequate, non-speculative answer. If confirmed,
    I will learn more about the potential for data synchronization.

        Question 23. The Human Resources department at the Department of
    Labor Human Resources has reportedly begun weighing in on BLS
    determinations regarding the Pathways program. Do you support BLS use
    of the Pathways program as a way to bring in new employees for BLS
    positions? Do you believe that BLS decisions regarding these employees
    should be given deference?
        Answer. I will maintain the integrity and independence of the BLS.
    A good portion of the integrity of the organization stems from the
    quality of its workforce. If confirmed, I will work with every willing
    partner to improve the skill level of BLS employees. However, I lack
    the specific information needed to answer adequately your question. If
    confirmed, I will learn more about the Pathways program.

        Question 24. The Department of Labor 2016 report entitled
    ``Advancing LGBT Workplace Rights,'' is no longer available on the
    Department of Labor's website but may still be accessed at the
    following link: http://digitalcommons.ilr.cornell.edu/cgi/
    viewcontent.cgi'article=2580&context=key--workplace. Do you support the
    BLS initiatives mentioned in the report? Should BLS expand its efforts
    to collect information on LGBT individuals?
        Answer. I believe that equal opportunity is a core civil right and
    a fundamental element to economic security. However, I am sufficiently
    unfamiliar with the details of the report you reference to answer your
    question adequately. Certainly, every worker's rights, safety and
    health should be protected fully under all prevailing law.

        Question 25. What is your opinion about whether minority members of
    the HELP Committee have the authority to conduct oversight of BLS?
        Answer. It is my understanding that various committees and their
    members, spanning both chambers of Congress, have jurisdiction over the
    Department of Labor and its constituent agencies, such as BLS,
    including an oversight role in addition to legislative, budgeting and,
    in the case of the Senate, the advice and consent role for nominations.
        Question 26. If confirmed, do you agree to provide briefings to
    members of the HELP Committee, including minority members, if
    requested?
        Answer. If confirmed, I look forward to maintaining an open dialog
    with you and your congressional colleagues on topics relevant to the
    Bureau of Labor Statistics.
        Question 27. If confirmed, do you commit to answer promptly any
    letters or requests for information from individual members of the HELP
    Committee including request for BLS documents, communications, or other
    forms of data?
        Answer. If confirmed, I will provide responses to all Members of
    Congress.

                               senator whitehouse
        Scientific Peer Review:
        Question 1. During the confirmation hearing, you said that your
    report on the Lieberman-Warner Climate Security Act published online on
    May 12, 2008 was peer reviewed.
        Independent and refereed peer review is a formal process where an
    article is submitted to a journal, reviewed by external experts, and
    either approved or rejected for publication by a neutral third party
    editor or referee. Did your paper go through independent and refereed
    review before publishing?
        Answer. The Heritage Foundation report you reference in this
    question was not submitted to a journal for publication. However, this
    paper depended on the results of econometric models, an energy model,
    and a structural model of the US economy. Two steps were taken to
    assess our work using outside reviewers. First, we submitted our work
    to a leading energy economist to ascertain if we had adequately
    accounted for the principal ways the proposed legislation would affect
    energy production, distribution, pricing, and consumption. Second, we
    submitted our work with the US macroeconomic model to economists who
    were familiar with the model. All of these reviewers suggested
    improvements to our modeling and to our paper, which resulted in at
    least two rounds of changes (if memory serves me correctly).
        Question 2. If your paper was not independently reviewed and
    refereed can you explain in more detail what you meant by peer review
    by answering the following.
            a. Was there a neutral third party editor that was managing the
            paper as it went through the external review process?
            b. Did the paper undergo revisions based on external feedback
            from outside experts? If so how many rounds?
            c. How many outside experts reviewed your paper prior to
            revision and publication?
            d. Does the Center for Data Analysis at Heritage have a record
            of rejecting papers if outside experts provide negative
            feedback on the work? And who at CDA decides what papers get
            published?
        Answer. See my comments to question 1. My practice at the Center
    for Data Analysis was to submit all model based and statistical papers
    to some level of peer review. That level of scrutiny was sufficiently
    high as to support my cancellation of several projects. My judgment on
    publication was usually sufficient to determine whether a project went
    forward, but I sometimes was assisted in that decision by the Vice
    President for Domestic Policy.

        Question 3. With the same understanding of the peer review process
    in the previous question, please list all publications you authored or
    co-authored since the beginning of your tenure at the Heritage
    Foundation to the present that were peer reviewed.
        Answer. I spent 18 years at Heritage, which makes it all but
    impossible to give you a complete list of papers for which we asked
    guidance by outside reviewers. Suffice it to say, that all of those
    papers that used the U.S. Macroeconomic Model of Global Insight, Inc.
    were reviewed at least by Global Insight, whose advice on modeling
    always proved highly valuable. Also, our policy modeling work in
    energy, immigration, crime, and family structure also received review
    by outside experts.

        Question 4. What degree did you receive from the University of
    Buckingham?
        Answer. Doctor of Philosophy.

        Question 5. If you have not yet provided your dissertation to the
    Committee for review, will you do so?
        Answer. Yes.

        Other Side of the Ledger:
        Question 6. During the confirmation hearing, you said that your
    report on the Lieberman-Warner Climate Security Act published online on
    May 12, 2008 included health and climate benefits in its cost benefit
    analysis.
            a. Did your cost benefit analysis include the benefit-per-ton
            of reducing particulate matter, ozone, Nitrous Oxide, Sulfur
            Dioxide, and Carbon Monoxide that would be reduced under the
            bill?
            b. Did your cost benefit analysis include the avoided climate
            damages that would have occurred from implementing the bill?
            Specifically, did your cost benefit analysis calculate the
            dollar value of avoided damages using the Social Cost of
            Carbon-the measure of long-term damage done by carbon
            pollution?
        Answer. Our analysis of the Lieberman-Warner Climate Security Act
    was an economic analysis of the legislation. That is, we assessed the
    economic costs and benefits of implementation (including its fiscal
    effect) over a 30-year period. The paper contains a methodological
    appendix that describes the operation of the energy model (where, for
    example, implementation of carbon sequestration and renewable
    standards, among others, were made) and the operation of the
    macroeconomic model. Our work did not include estimated feedbacks to
    the economy from weather or long-run climate changes.

        Question 7. If your cost benefit analysis included the health and
    climate benefits described above would this change the overall net
    benefits reported in your cost benefit analysis?
        Answer. It is doubtful that including a social cost of carbon
    calculation in our modeling would have been appropriate. The U.S.
    Macroeconomic Model has been specified and estimated over a long
    historical period during which enormous gains in environmental quality
    were achieved. These gains are contained in the parameter estimates on
    the economic variables. In other words, the model expects the trend of
    future economic activity to yield better environmental results. Thus,
    environmental gains were embodied in our baseline. The policy
    simulation also estimated the additional gains from more renewables,
    carbon sequestration, improved appliance standards, and so forth. We
    built our analysis of the economic effects of Lieberman-Warner on this
    foundation of baseline and energy modeling results.

                                 senator warren
        Question 1. You've often advocated for decreasing government
    spending, but, after years of budget cuts, the BLS is already severely
    underfunded. Do you support increasing BLS funding, decreasing it, or
    keeping it the same?
            a. If you support increased funding, can you commit to actively
            advocating for more funding to Secretary Acosta, the White
            House, and Congress?
            b. If you support cutting funding or keeping it level, what
            programs or offices at the Bureau would you cut?
        Answer. If confirmed, I will work with the funds that are
    appropriated by Congress to fulfill the mission of the BLS.

        Question 2. Former BLS Commissioner Erica Groshen said earlier this
    year that the Bureau ``may be headed toward failure'' due to budget
    cuts.\2\
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        \2\ http://www.govexec.com/management/2017/04/former-labor-
    statistics-chief-warns-trump-against-budget-cuts/137252/
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            a. Do you share this view?
            b. What will you do to address this problem?
            c. If you face decreased funding (regardless of your own
            opinions on the issue), how will you handle a smaller budget?
            What programs will consider shrinking or cutting? Also, please
            describe your views on balancing thoroughness and accuracy with
            breadth and volume of programs in such a scenario.
        Answer. If confirmed, I will work with the funds that are
    appropriated by Congress to fulfill the mission of the BLS.

        Question 3. You've spent much of your career working for
    organizations with financial backing from the Koch Brothers and other
    major conservative donors.
            a. Have the Koch brothers ever been involved in your research,
            either at the Mercatus Center or elsewhere? If so, please
            describe their involvement in detail.
        Answer. The Koch brothers have never been involved in my research.

        Question 4. What influence, if any, do you believe is appropriate
    for think tanks to have on a statistical agency such as BLS?
        Answer. The BLS needs the support of a broad community of scholars
    and professional organizations, which includes research institutions
    and think tanks. However, no person or organization should be allowed
    special influence on BLS. There are times, of course, when BLS will
    call on academics and policy experts to advise it on topics under BLS's
    purview. For example, the Brookings Institution recently held a day-
    long conference to probe for likely reasons behind the slowdown in
    labor productivity. That conference provided excellent advice to BLS
    how the agency could improve the quality of its surveys.
        Question 5. How specifically will you ensure that BLS and its staff
    is entirely insulated from the political preferences of think tanks,
    advocacy groups, and their donors?
        Answer. As I have stated previously, I will do everything in my
    power to advance the integrity and independence of the BLS. If
    confirmed, I would fully comply with the law and maintain the integrity
    of BLS's mission without regard to political pressure. BLS must be
    viewed as a reliable collector of data and I will insist that the BLS
    continues its tradition of being insulated from political interference
    regardless of the source.

        Question 6. During the appropriations process, I've fought for full
    BLS funding and in particular for the funding to reinstate the
    Contingent Worker Supplement, which hadn't been fielded since 2005. I
    was happy to see that BLS finally received money to field this
    supplement, and I'm looking forward to seeing the results of that
    survey, which I understand will be ready shortly.
            a. Will you commit to (a) briefing this committee on and (b)
            discussing with me the results of that survey?
        Answer. If confirmed, I look forward to maintaining an open dialog
    with you and your congressional colleagues regarding the work of the
    Bureau.

        Question 7. You mentioned during your interview with Committee
    staff that you are interested in helping BLS establish a better
    understanding of problems with labor force participation and recent
    declines in productivity. How will you do this if you are confirmed?
        Answer. If confirmed, I will work with BLS staff to commission
    research by leading academics on the underlying reasons for non-
    participation by men and women in the prime working ages. A great deal
    of important work is being done on this topic and it should inform
    BLS's strategy for providing policymakers with better data on problems
    with labor force participation. I also will work with BLS analysts who
    study the skills of workers, since the slow growth in productivity may
    be attributable to skill problems in certain segments of the workforce.

        Question 8. President Trump has questioned the legitimacy of BLS
    statistics, particularly the unemployment rate, at least 19 times,
    especially on the campaign trail in 2015 and 2016.\3\ He has called BLS
    employment statistics ``all phony numbers,'' ``totally fiction,'' ``one
    of the biggest hoaxes in modern politics,'' and ``numbers given to
    politicians to look good.'' Then, in February 2017, after the release
    of favorable jobs numbers, Trump said that though the data had been
    phony in the past, they were ``very real now.''\4\
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    times-trump-called-the-jobs-numbers-fake-before-they-made-him-look-
    good/'utm--term=.5f932b795747
        \4\ http://thehill.com/policy/finance/323425-spicer-quoting-trump-
    jobs-reports-may-have-been-phony-in-the-past-but-theyre
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            a. Do you believe that President Trump's attacks on BLS data
            have any basis in fact?
            b. If you are confirmed, and President Trump criticizes the
            integrity of BLS during your tenure, can you commit to publicly
            repudiating such an attack?
        Answer. I believe that President Trump is as interested as anyone
    in a strong and independent BLS. I have stated in my confirmation
    testimony that I will be a tireless defender of BLS's integrity..

        Question 9. Will you commit to notifying Congress if the White
    House attempts to interfere in any way with the integrity of BLS data?
        Answer. The standing of the HELP Committee as the committee of
    jurisdiction and oversight provides amble opportunities for updating
    Members on issues affecting the integrity of BLS.

                                 senator kaine
        Question 1. During his campaign, President Trump repeatedly claimed
    that the Federal Government's unemployment numbers were ``phony'' and a
    ``hoax.'' And the Treasury Secretary told the Senate Finance Committee
    that the unemployment rate is not real.'' However, when February's jobs
    report came out, the President praised the report and Sean Spicer
    quoted the President as saying ``they may have been phony in the past,
    but they are very real now.'' Mick Mulvaney said that ``The Obama
    administration was manipulating the numbers, in terms of the number of
    people in the workforce, to make the unemployment look smaller than it
    actually was.'' The economy depends on these unemployment numbers, and
    all our Federal data and statistics, for our nation's economic health.
            a. Will you commit to keeping the Bureau of Labor and
            Statistics independent and maintain its integrity?
            b. If our unemployment rate rises, would you advise President
            Trump to stand behind BLS' data?
            c. If President Trump tweeted and attacked the unemployment
            number will you pledge to protect BLS?
        Answer. If confirmed, I would fully comply with the law and
    maintain the integrity of BLS's mission without regard to political
    pressure. BLS must be viewed as a reliable collector of data and I will
    insist that BLS continue its tradition of being insulated from
    political interference.

        Question 2. As an independent agency, the Bureau of Labor
    Statistics (BLS) serves a critical function by collecting data to
    understand overall economic trends in our labor market. This data
    provides invaluable insight into the American workforce and areas where
    our nation can improve. However, from my experience the Current
    Population Survey lacks critical occupational data on career and
    technical occupations. This data is essential as our workforce
    landscape is changing and Congress implements policies impacting
    workforce and higher education training?
            a. Are you aware of this shortfall?
            b. Will you commit to working with me on this issue?
        Answer. I have a general understanding of the issue of surveying
    occupations that you mention. If confirmed, I look forward to
    maintaining an open dialog with you and your congressional colleagues
    regarding the work of the Bureau.

        Question 3. In 1998, you argued in two reports for the Heritage
    Foundation that Social Security was a bad deal for minorities based on
    life expectancy and rates of return. Your work came under sharp
    criticism, including one complaint that described the findings as
    ``grossly in error due to faulty methodology.''
            a. Do you approach research with a particular outcome in mind?
            b. How have you responded to criticisms of your research
            process?
            c. Have you considered changes to the methodology or processes
            for data collected by or reports issued by BLS?
        Answer. Like all researchers, I am interested in some questions
    more than others. A desire to discover ways that people all across the
    income spectrum can prepare better for retirement has always motivated
    my work on Social Security. Before Social Security became so
    financially challenged, the set of possible enhancements included
    supplemental, personal retirement accounts. Our work in 1998 was
    criticized, in part because we were challenging the accepted view on
    Social Security and private accounts. We responded to our critics in a
    lengthy policy report entitled ``Reply to the Critics''. In general I
    believe BLS should provide as accurate, timely, and relevant data as
    possible. However any changes to data collection or reports should be
    made in consultation with BLS career staff and outside technical
    advisors. As I have not been confirmed and have not had those
    conversations, I have no plans now for changing BLS methodologies or
    data collection processes or reports. Once confirmed I intend to listen
    to BLS career staff and work with them to make the Bureau as effective
    as possible, and to maximize the value the American people receive from
    its work.
      Response by Johnny Collett to Questions of Senator Murray, Senator
      Sanders, Senator Casey, Senator Bennet, Senator Whitehouse, Senator
       Murphy, Senator Kaine, Senator Hassan, Senator Hatch, and Senator
                                    Collins
                                 senator murray
        Question 1. The Trump Administration budget proposes eliminating
    funding for the Vocational Rehabilitation Supported Employment State
    Grants, the Special Olympics, and Title II-A funding for preparing,
    training, and recruiting high-quality teachers and school leaders. Do
    you support President Trump's budget proposal?
        Answer. Since I was not at the Department during the development of
    the Fiscal Year 2018 Budget Proposal, it would not be appropriate for
    me to speculate on those decisions. However, I understand that
    difficult decisions had to be made and, if confirmed, I look forward to
    working with the Department in developing future budget proposals.

        Question 2. The Office of Special Education and Rehabilitative
    Services (OSERS) administers more than $16 billion in funding and
    employs more than 200 people. Please describe your previous management
    experience, including how many people you have managed and the annual
    budget you oversaw.
        Answer. As Director of the Division of Learning Services at the
    Kentucky Department of Education, I provided oversight to a division
    that included special education (IDEA), as well as other program areas
    including English Learners (Title III), gifted and talented, response
    to intervention, the Kentucky School for the Blind, and the Kentucky
    School for the Deaf. I managed a total of approximately 240 staff and
    oversaw an annual budget of approximately $240 million (including both
    Federal and state dollars).

        Question 3. Based on your experience overseeing special education
    in Kentucky's public schools and working for the Council of Chief State
    School Officers (CCSSO), do you believe that public schools have the
    financial resources they need to provide a high quality education to
    each child with a disability attending public schools?
        Answer. Undoubtedly, financial resources contribute to a public
    agency's ability to meet the requirements of the Individuals with
    Disabilities Education Act (IDEA). Funding, however, is not the sole
    determinative factor in a school's ability to provide quality special
    education and related services. Other factors such as the provision of
    quality instruction, progress monitoring within a schoolwide system of
    support, a commitment to having high expectations, and creating a
    supportive learning environment are critical components and are just as
    important as financial resources to ensuring schools provide a high
    quality education for children with disabilities.

        Question 4. Do you support the increased use of pay for success
    initiatives, in K-12 education and/or in early childhood education?
        Answer. I am aware that Congress, under the Every Student Succeeds
    Act, has allowed states and local school districts to support pay for
    success initiatives with Federal funds in certain programs. Decisions
    concerning the implementation of such initiatives, as Congress so
    appropriately decided under ESSA, should be made by state and local
    officials, as well as principals and teachers who are closest to our
    children.

        Question 5. Do you believe a contract under a pay for success
    initiative should be allowed to use a reduction in special education
    placements as an outcome payor?
        Answer. All contracts utilized by public school districts,
    including contracts executed as a part of a pay for success (PFS)
    initiative, must be consistent with applicable Federal law, including
    being carefully designed to avoid violating the right of children with
    disabilities to a free, appropriate public education under the
    Individuals with Disabilities Education Act (IDEA). Toward this end,
    PFS projects must not incentivize the identification of fewer students
    for special education and related services and must include safeguards
    to protect statutory rights.

        Question 6. Do you share Secretary DeVos's commitment to expand the
    use of private school vouchers?
        Answer. I am committed to public education and the interests of
    students and parents, as demonstrated by my work as a high school
    special education teacher, the state director for special education in
    Kentucky, and the work I have most recently led as the director for
    special education outcomes at the Council of Chief State School
    Officers. I believe that all parents, including parents of children
    with disabilities, should have the option of enrolling their child in
    the school that best meets their child's needs.

        Question 7. Do you believe that Secretary DeVos's commitment to
    expand private school vouchers specifically targeted to students with
    disabilities is in conflict with the Federal law's goal of community
    integration of people with disabilities?
        Answer. I support the mandated goal of IDEA, which is to provide
    all students with a free appropriate public education in the least
    restrictive environment possible.

        Question 8. President Trump and Secretary DeVos have proposed to
    manipulate ESSA's Education Innovation and Research (EIR) program to
    promote private school vouchers. Do you believe that using ESSA dollars
    to promote school vouchers will help to strengthen public education for
    the 90 percent of students who attend public schools?
        Answer. I believe in the importance of research and evidence when
    it comes to finding new ways to support students and improve
    educational outcomes. I am not aware of the specific details of that
    budget proposal, but recognize that it is ultimately up to Congress to
    determine whether Federal funding should be appropriated for those
    purposes.

        Question 9. The mission of the Office of Special Education Programs
    (OSEP) is ``to lead the nation's efforts to improve outcomes for
    children with disabilities, birth through 21, and their families,
    ensuring access to fair, equitable, and high-quality education and
    services.'' How do private school voucher programs fulfill this
    mission?
        Answer. There is no Federal voucher program authorized under the
    Individuals with Disabilities Education Act (IDEA) or administered by
    the Office of Special Education Programs (OSEP). As such, if confirmed,
    I look forward to working with States, local school districts, and
    public schools to ensure compliance with IDEA and to achieve OSEP's
    important mission.

        Question 10. Do you support allowing IDEA funds to be reallocated
    for use within a private school voucher program?
        Answer. No provision of the Individuals with Disabilities Education
    Act (IDEA) authorizes the direct allocation or reallocation of funds to
    private schools. It is the local educational agency's (LEA's)
    responsibility under IDEA to locate, identify, evaluate, and spend a
    proportionate share of IDEA funds for equitable services for children
    with disabilities enrolled by their parents in private schools,. Each
    LEA must address these requirements through timely and meaningful
    consultation with representatives of private schools and parent
    representatives of parentally placed private school children with
    disabilities. If confirmed, I look forward to working with the
    Secretary and staff of the Department, and Members of Congress to
    ensure that all children with disabilities have opportunities to
    succeed.

        Question 11. Private school voucher programs reduce funding
    available for public schools-funding used to provide special education
    and related services to children with disabilities. How does diverting
    needed resources from the public school system support high quality
    education for students with disabilities?
        Answer. State funding systems are detailed, complicated, and vary
    significantly by state. Often, funding is based on a formula that
    includes a per-pupil allocation based on the number of students
    enrolled in a public school district. Such funding systems include a
    base amount for enrolled students, and additional funding based on the
    characteristics of the enrolled student population. That is, the
    funding a public school receives is based on the number and
    characteristics of students enrolled in the district. At the same time,
    giving parents meaningful choices is an important factor in education.
    Leaving this issue primarily to state officials and legislators who
    best know the needs of their parents and students is appropriate.

        Question 12. The Education Department issued guidance in December
    16 providing much needed clarity regarding charter schools'
    compliance with the Individuals with Disabilities Education Act (IDEA)
    and section 504 of the Rehabilitation Act. Will you commit to
    maintaining this guidance, if confirmed?
        Answer. My understanding is that the Department is thoroughly
    reviewing all guidance pursuant to Executive Order 13777. If confirmed,
    I look forward to participating in the review of both regulatory and
    non-regulatory documents. I commit to conducting the review thoroughly,
    thoughtfully, and with the overall goal of doing what is best for
    children with disabilities.

        Question 13. Please explain the steps that you will take to ensure
    that states, local educational agencies, charter school authorizers,
    charter school support organizations, charter school management
    organizations, and charter schools understand their responsibilities
    related to students with disabilities?
        Answer. Charter schools are public schools and, therefore, have the
    same responsibilities related to students with disabilities under
    Federal law as any other public school. If confirmed, I will work to
    ensure that all public schools, public school districts, charter school
    authorizers, or other entities overseeing the education of students in
    public schools understand their responsibilities and comply with
    Federal requirements related to students with disabilities.

        Question 14. The Every Student Succeeds Act (ESSA) allows states to
    develop alternate diplomas for students with the most significant
    cognitive disabilities and count those students in their graduation
    rates, if certain conditions are met. For example, the alternate
    diploma must be standards-based, align with the state requirements for
    the regular high school diploma, be earned during the period of FAPE,
    and cannot be a certificate of completion, certificate of attendance,
    or any similar lesser credential. Congress clearly intended for this
    diploma to be meaningful-and if a student earned this diploma it
    signified that student was ready for competitive integrated employment.
    What was your role, if any, in Kentucky developing alternate diplomas?
    What requirements must students must meet to earn an alternate diploma
    in Kentucky?
        Answer. As Director of the Division of Learning Services at the
    Kentucky Department of Education (KDE), I worked on KDE's response to
    KY Senate Bill 43 (2012), which required the Kentucky Board of
    Education to promulgate regulations for an ``alternative high school
    diploma.'' Effectively, the bill simply required a change of name, in
    Kentucky's Minimum Requirements for High School Graduation regulation
    (704 KAR 3:305), from ``Certificate of Attainment'' to ``Alternative
    High School Diploma.'' This change in name did not change how students
    participating in the alternate assessment and awarded an ``Alternative
    High School Diploma'' were included in calculating the state's
    graduation rate used for Federal reporting and accountability purposes;
    meaning, students obtaining an ``Alternative High School Diploma'' were
    not included as graduates for purposes of calculating the Federal
    adjusted cohort graduation rate for a school, district, or the state as
    a whole.
        In terms of requirements students must meet to earn an
    ``Alternative High School Diploma'' in Kentucky, the following is from
    Kentucky's Minimum Requirements for High School Graduation regulation
    (704 KAR 3:305):
        Section 8. Beginning with the graduating class of 2013, if the
    severity of an exceptional student's disability precludes a course of
    study that meets the high school graduation requirements established in
    Section 1 of this administrative regulation leading to receipt of a
    high school diploma, an alternative course of study shall be offered.
        (1) This course of study shall be based upon student needs and the
    provisions specified in 704 KAR 3:303, Required core academic
    standards, and shall be reviewed at least annually.
        (2) A student who completes this course of study shall receive an
    alternative high school diploma to be awarded by the local board of
    education consistent with the graduation practices for all students.
        (3) A local board of education may establish policies to award an
    alternative high school diploma to a former student who has received a
    certificate or certificate of attainment.
        ESSA appropriately assumes the vast majority of students can obtain
    a regular high school diploma and requires states to incorporate
    graduation rates into state accountability systems. ESSA also
    acknowledges students with the most significant cognitive disabilities
    assessed using the alternate assessment aligned to alternate academic
    achievement standards may be awarded state-defined alternate diplomas
    that meet the statutory requirements referenced in the question. If
    confirmed I will ensure that OSERS supports the ongoing work in the
    Office of Elementary and Secondary Education (OESE) to implement these
    provisions of ESSA.

        Question 15. What should the role of the Assistant Secretary of
    OSERS be in making sure states do not manipulate this diploma to be
    less meaningful?
        Answer. If confirmed as Assistant Secretary of OSERS, my role will
    be to ensure that states comply with Federal law, and I would work with
    OSERS staff and officials from OESE on this matter.

        Question 16. If you are confirmed, do you plan to have the Office
    of Special Education Programs (OSEP) continue to implement the Results-
    Driven Accountability system for determining compliance with the IDEA?
    If not, why not?
        Answer. I was the Director of Special Education for the Kentucky
    State Department of Education when Results-Driven Accountability (RDA)
    was first introduced by OSEP, and I agree that compliance with the
    Individuals with Disabilities Education Act (IDEA) should include a
    focus on results for children with disabilities. If confirmed, I look
    forward to working with the career staff in OSERS to examine the
    components and focus areas OSEP has identified to ensure the overall
    system of monitoring and compliance appropriately focuses on improving
    results for children with disabilities, consistent with the IDEA. I am
    committed to implementing IDEA with respect to the rights of
    individuals with disabilities and their families, while also ensuring a
    continued focus on improving results and outcomes for children with
    disabilities.

        Question 17. Although Section 614(d)(3)(B)(iii) of IDEA is clear
    regarding ``Braille instruction'' for students with the disability of
    ``visual impairment including blindness,'' according to the American
    Printing House for the Blind's ``Annual Report 2016,'' 8.2 percent of
    blind students use Braille as their primary reading medium. In 2013, at
    my urging, OSEP released a ``Dear Colleague letter'' reiterating
    schools' responsibilities under IDEA to provide Braille instruction to
    blind students. Will you commit to protecting this guidance document if
    you are confirmed as Assistant Secretary? If not, please explain. What
    other actions should OSEP take to encourage schools to comply with this
    guidance?
        Answer. Ensuring that states and local school districts are
    providing appropriate instruction and supports to students who are
    blind or visually impaired is important. If confirmed, I look forward
    to the opportunity to review all non-regulatory guidance documents. I
    commit to conducting the review thoroughly, thoughtfully, and with the
    overall goal of doing what is best for children with disabilities.

        Question 18. As you are aware, students with disabilities are not
    always held to the highest of expectations, which, in part, leads to
    low achievement rates. In the Endrew F. decision, a unanimous Supreme
    Court held that children with disabilities are entitled to an
    Individualized Education Program (IEP) that is reasonably calculated to
    enable the child to make academic progress and advance from grade to
    grade. Before the Supreme Court's decision, many states were operating
    under a ``merely more than de minimus'' standard. Beyond the Question
    and Answer guidance issued on December 7, 2017, what steps should the
    Assistant Secretary at OSERS be taking to ensure all children with
    disabilities are held to the highest expectations and no longer
    ``merely more than de minimus''?
        Answer. If confirmed as Assistant Secretary of OSERS, my role will
    be to ensure that states comply with Federal law, including the
    requirements of IDEA. Ultimately, however, it is up to states to ensure
    that local school districts, schools, and IEP teams are setting
    challenging and ambitious goals for all children with disabilities. If
    confirmed, I look forward to working with states and supporting their
    efforts to ensure that every child has appropriately ambitious goals
    based on the unique circumstances of the child, and the opportunity to
    meet challenging objectives.

        Question 19. Last year, the Department issued regulations requiring
    states to use a standard approach to identify significant
    disproportionality under IDEA. However, states were given until the
    spring of 2019 to make the required determinations. News reports
    indicate the Secretary is considering delaying the significant
    disproportionality regulation. Do you support this regulation?
        Answer. If confirmed, I will look into that matter and work with
    Department officials and take into account the views of stakeholders to
    determine what is most appropriate.

        Question 20. Do you support postponing, modifying, or rescinding
    this regulation?
        Answer. I do not believe that it would be appropriate for me to
    commit to any policy decision before I am confirmed. My understanding
    is that the Department is in the process of thoroughly reviewing all
    existing regulations and guidance pursuant to Executive Order 13777. If
    confirmed, I would work on this as a part of that process.

        Question 21. Is it the role of the Assistant Secretary of OSERS to
    be combating disparate discipline and placement of students with
    disabilities based on race? What should that role be?
        Answer. The role of the Assistant Secretary of OSERS is to monitor
    and enforce the implementation of Federal laws, which may include
    providing guidance, technical assistance, or disseminating information
    to aide in improved identification, placement, and delivery of services
    for students with disabilities. Should I be confirmed, to the extent
    that students with disabilities are being disparately disciplined or
    placed based on race, I would work with the Office for Civil Rights and
    other appropriate Department offices.

        Question 22. If confirmed, how will OSERS work to decrease
    bullying, harassment, and the use of aversive behavioral interventions?
        Answer. Bullying or harassment of any student is unacceptable. If
    confirmed, I would work with the Secretary and other offices within the
    Department, including the Office for Civil Rights, to help ensure that
    students have safe learning environments and that applicable Federal
    laws prohibiting these forms of discrimination are enforced.

        Question 23. The U.S. Education Department's Office for Civil
    Rights (OCR) sends a survey to all public schools in the country
    requesting data about academic and disciplinary issues, including the
    use of restraint and seclusion. A recent Politico article described how
    this data show students with disabilities are disproportionately
    subjected to restraint and seclusion and that use of these aversive
    behavioral interventions are underreported. What are your views on the
    role of the OSERS, and the Department, to create better systems for
    reporting and enforcing accurate reporting? Do you think this data is
    important and necessary?
        Answer. If one child is harmed by the inappropriate use of
    seclusion and restraint, it is too many. If confirmed, I look forward
    to working with the Office for Civil Rights to address these issues.
    OSERS has a strong record of investing in positive behavioral
    interventions and supports and providing technical assistance to states
    and school districts seeking to implement such policies. If confirmed,
    I look forward to ensuring states and local school districts have
    access to these tools and programs.

        Question 24. Seclusion and restraint are aversive behavioral
    practices used in schools for control and punishment. Decades of
    research documents prove that these practices lead to pain and injury,
    negative outcomes, and decreased instructional time. Further, seclusion
    and restraint do not decrease undesirable behavior, indicating these
    practices are ineffective behavior interventions. Despite the evidence
    of harm and ineffectiveness of seclusion and restraint, the practices
    continue to be used widely across the country. In your exchange with
    Senator Isakson, he indicated that seclusion and restraint may be
    misconstrued by those using it because in reality, the practices are
    needed for students with significant disabilities and behavioral
    challenges. Do you believe seclusion should ever be used on any
    student? Do you believe restraint should ever be used on any student?
        Answer. The Individuals with Disabilities Education Act (IDEA) does
    not address the use of seclusion and restrain directly, but the law
    does emphasize the use of positive behavioral interventions and
    supports. If confirmed, I look forward to working with states and local
    school districts to ensure public agencies have access to these systems
    and practices and provide the behavioral interventions and supports
    that students need.

        Question 25. Do you believe the Department has a role in limiting
    the use of seclusion and restraint in schools? Please explain your
    rationale.
        Answer. OSERS, through programs administered under Part D of the
    Individuals with Disabilities Education Act (IDEA) has an opportunity
    to support states and school districts as they work to implement
    positive behavioral interventions and supports. If confirmed, I look
    forward to continuing to support states and local school districts in
    these efforts.

        Question 26. In 2009, former Secretary Duncan released two letters
    indicating the Department of Education's position on seclusion and
    restraint. The first was to Chief State School Officers urging a review
    of policies to ensure the safety of students. The other letter was sent
    to Congress regarding actions taken to limit the use of seclusion and
    restraint. Unfortunately, little has been done since that time. In
    2016, the Office for Civil Rights (OCR) released guidance on seclusion
    and restraint practices, but minimal information has come out of OSERS.
    If confirmed, what efforts will you take to reduce seclusion and
    restraint in schools? Do you believe this should be a joint priority
    for OCR and OSERS?
        Answer. If confirmed, I look forward to conducting a thorough
    review of these guidance documents, and what other actions have been
    taken, and doing so in a meaningful and thoughtful way that focuses on
    what is best for children with disabilities, and seeing whether other
    actions should be taken. I also look forward to collaborating with the
    Office for Civil Rights on a number of projects, possibly including the
    issue of seclusion and restraint.

        Question 27. Extensive evidence indicates the best way to reduce
    seclusion and restraint is through positive, preventative practices.
    During the last administration, the Office of Special Education
    Programs (OSEP) took many steps forward in funding efforts to support
    positive behavior interventions and supports (PBIS) in schools. In
    2016, OSEP released guidance to help ensure students whose behavior
    impedes the learning of others are supported through the use of PBIS
    and other strategies that address behavior. Please provide a
    description of the steps you plan to take, if confirmed, to extend this
    work to implement positive, proactive strategies in schools in order to
    reduce aversive and exclusionary discipline.
        Answer. OSERS has a strong history of investing in projects aimed
    to support the education of students whose behavior may impede
    learning. If confirmed, I look forward to working with OSERS staff to
    learn the full extent of OSERS efforts, and when appropriate,
    continuing or enhancing OSERS efforts to focus on supporting states and
    school districts as they work to implement positive behavioral
    interventions and supports.

        Question 28. During the 2014-2015 school year, the national high
    school graduation rate reached 83 percent. Meanwhile, students with
    disabilities graduated at an average rate of 64 percent, indicating a
    significant achievement gap still remains between students with
    disabilities and their non----disabled peers. If confirmed, what is
    your plan to work with local schools, districts, and states to close
    achievement gaps and achieve the intent of the Every Student Succeeds
    Act (ESSA)-to provide all children with disabilities the opportunity to
    receive a fair, equitable, and high-quality education?
        Answer. I am committed to focusing on improving results and
    outcomes for students with disabilities. If confirmed I will ensure
    that OSERS supports the ongoing work in OESE to implement ESSA and look
    for opportunities to support states in efforts to ensure that children
    with disabilities have equitable opportunities to succeed.

        Question 29. Several states submitted Every Student Succeeds Act
    (ESSA) state plans requesting waivers from key ESSA provisions. Under
    ESSA, a state may measure the progress of no more than 1 percent of its
    students against ``alternate academic achievement assessments.'' These
    assessments must be based on the state's challenging grade level
    academic content standards. Several states have asked the Secretary to
    waive this requirement. I understand that your home State of Kentucky
    requested a waiver of this requirement, which was already granted-
    thereby allowing the state to test students with disabilities with
    below-grade level assessments. As I stated at the hearing, one of the
    reasons Senator Alexander and I agreed to reauthorize the Elementary
    and Secondary Education At was to stop Federal education law from being
    administered via waiver. It is premature--and not right for our
    nation's children--for the Department of Education to already be
    waiving core provisions of ESSA before the law is even fully
    implemented by states. If you are confirmed, how will you advise
    Secretary DeVos regarding granting additional ESSA waivers to states
    wanting to avoid ESSA's requirements on testing students with
    ``alternate academic achievement assessments''? Please explain your
    answer fully.
        Answer. I have not been involved in the development of Kentucky's
    request for a waiver from the 1 percent cap on students measured
    against alternative academic standards, nor am I aware of how the
    Department evaluated the waiver request. The Every Student Succeeds Act
    (ESSA) itself, as passed by Congress, allows states to submit a waiver
    on the 1 percent assessment requirement. If confirmed, I look forward
    to working with the Secretary and the Office of Elementary and
    Secondary Education (OESE) to ensure that the law is implemented as
    Congress intended and in a way that focuses on providing flexibility,
    and supporting states and local efforts to improve outcomes for
    children with disabilities.

        Question 30. If confirmed, you will have the opportunity to work
    with the Secretary on the implementation of the Every Student Succeeds
    Act (ESSA) as related to students with disabilities. Provisions in ESSA
    under Sec. 1111(g) require states to support schools in reducing
    aversive and exclusionary discipline practices, specifically referring
    to suspension, expulsions, seclusion, and restraint. Every state has
    submitted a plan at this time, yet very few provide concrete
    information about steps that will be taken to reduce these practices.
    Even fewer specifically address seclusion and restraint. In your
    efforts to advise the Secretary, what will you do to ensure the law is
    being implemented and specifically, these practices reduced?
        Answer. If confirmed, I look forward to working with the Office of
    Elementary and Secondary Education to support states as they focus on
    reducing aversive and exclusionary discipline practices. For several
    years, it is my understanding that OSERS has focused on supporting
    states in efforts to reduce such practices through its discretionary
    grant programs, specifically through the technical assistance. If
    confirmed, I look forward to learning more about these investments and
    identifying ways to support states and local school districts.

        Question 31. Research conclusively shows that inclusion of students
    with disabilities is beneficial to all students--those with
    disabilities and those without disabilities. All students experience
    better academic outcomes when they learn side by side with diverse
    learners. In most states, some students with disabilities are educated
    in specialized schools. These may be private, charter, or alternative
    schools. What oversight do you believe is needed of these specialized
    schools? Do you believe they unnecessarily segregate students with
    disabilities?
        Answer. The Individuals with Disabilities Education Act (IDEA)
    requires schools districts to ensure that a continuum of alternative
    placements is available to meet the needs of children with disabilities
    for special education and related services. IDEA requires students with
    disabilities be educated with children without disabilities to the
    maximum extent appropriate and students with disabilities are removed
    to separate classes or schools only when the nature or severity of
    their disabilities is such that education in regular classes with the
    use of supplementary aids and services cannot be achieved
    satisfactorily. This means that, while students must be educated in the
    general education environment to the maximum extent appropriate, school
    districts are required to offer a continuum of other placement settings
    to include special education classes, and specialized schools when
    necessary to provide special education and related services. In
    addition, if a public agency places a child with a disability in a
    private school as a means of providing that child special education and
    related services, the child has all the rights of a child with a
    disability who is served by a public agency. If confirmed, I look
    forward to working with local school districts to ensure that placement
    decisions are being made consistent with IDEA, and on an individualized
    basis based on the unique needs of the individual child.

        Question 32. If confirmed, how do you plan to work with DOJ to
    ensure states are not segregating students with disabilities in
    violation of the Americans with Disabilities Act?
        Answer. The Office for Civil Rights (OCR) ensures school district
    compliance with the Americans with Disabilities Act (ADA). As such, I
    look forward to supporting OCR in its compliance activities and working
    with the Department of Justice and other Department officials to share
    information and support our collective efforts to ensure state and
    district compliance with the ADA.

        Question 33. Research has shown that specialized schools are more
    likely to use exclusionary and aversive discipline practices, often
    used disproportionately on students of color who also experience
    disabilities. If confirmed, what efforts will you take to ensure public
    specialized schools are in compliance with the law and uphold the
    rights of students with disabilities including issues related to
    disproportionate discipline practices?
        Answer. I am committed to enforcing the provisions of the
    Individuals with Disabilities Education Act (IDEA). This includes
    working with all educators who provide special education and related
    services under IDEA to ensure that children with disabilities are
    served in an environment free from disproportionate discipline. If
    confirmed, I look forward to supporting state and district efforts to
    examine such practices.

        Question 34. Earlier this year, the previous administration
    released a guidance document on how to achieve access to inclusive,
    high-quality early childhood programs where children are supported in
    the least restrictive environment (LRE). The letter states, ``These
    requirements [LRE] reflect the IDEA's strong preference for educating
    students with disabilities in regular classes with appropriate aids and
    supports.'' While this guidance document sets a clear standard for
    preschool students, there has been limited information on the
    Department's views of LRE for all students with disabilities.
    Concurrently, OSEP collected data indicates that while inclusion rates
    have risen, in many states students with disabilities are still
    educated outside the general education classroom. Do you believe this
    is an area that needs greater oversight to ensure students with
    disabilities are receiving a high-quality education in LRE? If
    confirmed, please explain what steps you will take to ensure LRE is
    implemented according to law to improve inclusive opportunities for all
    students with disabilities.
        Answer. The Individuals with Disabilities Education Act (IDEA)
    requires, to the maximum extent appropriate, children with disabilities
    be educated with their non-disabled peers-or in the least restrictive
    environment (LRE). The law is clear that removal from the regular
    education environment should occur only if the nature or severity of
    the disability is such that an appropriate education in a general
    education classroom with supplementary aids and services cannot be
    achieved. The placement decision is made by a group of individuals, the
    IEP team; placements must meet statutory LRE requirements. I am
    committed to implementing these provisions of IDEA faithfully, and I
    look forward to learning more about OSERS' ongoing efforts to ensure
    that children are served in the LRE.

        Question 35. According to the Department's website, year after year
    the number of children and families served under Part C increases. What
    plans do you have to support states and local communities to address
    the increased challenge of ensuring early intervention services for
    children with disabilities, birth to three, and their families?
        Answer. From my previous experience both in Kentucky and at CCSSO,
    I know that OSERS has focused on improving reporting procedures, data
    collection, and data quality under IDEA Part C. I believe this has
    allowed for more accurate information on the ongoing work of states to
    provide early intervention services to infants and toddlers with
    disabilities under Part C. If confirmed, I look forward to better
    understanding recent changes OSERS has made to work with states to
    improve the quality of services provided under IDEA Part C-and
    evaluating whether such an increase is due to better data collection or
    increased participation. I look forward to continuing to support state
    efforts to provide quality early intervention services.

        Question 36. Increased incidence of neonatal abstinence syndrome as
    a result of our nation's opioid crisis is resulting in more children in
    need of early intervention services. How do you plan to collaborate
    with the Department of Health and Human Services (HHS) to ensure that
    local communities are prepared to address these increased needs for
    early intervention services?
        Answer. The opioid crisis that has been identified in a number of
    states will certainly have an impact on infants, toddlers, children and
    youth in those states--and in the ability of those states to meet
    increased needs in the population of children served. I know the
    Administration has identified addressing the opioid crisis as a
    priority, and I look forward to having an opportunity to work with
    Department officials and officials from other Federal agencies
    including HHS to support states in addressing these challenges.

        Question 37. The ``2020 Federal Youth Transition Plan: A Federal
    Interagency Strategy'' outlines how agencies will enhance interagency
    coordination through identification of a shared vision, compatible
    outcome goals, and policy priorities. Are you familiar with this work?
    If confirmed, how will you work with your Federal partners to support
    this plan?
        Answer. If confirmed, I look forward to examining this report more
    carefully and evaluating how OSERS can support children and youth with
    disabilities as they transition. OSERS is uniquely positioned to serve
    individuals with disabilities throughout the continuum of their lives;
    from infancy into adulthood. Although IDEA has always identified
    transitions as a key matter, the more recent reauthorization of the
    Workforce Innovation and Opportunity Act in 2014 placed an increase
    focus on transitions. I look forward to focusing on how we can work
    together to ensure children with disabilities successfully transition
    into post-secondary opportunities. I worked extensively on this issue
    in Kentucky and look forward to continuing that focus.

        Question 38. If you are confirmed, how will OSERS ensure full
    accessibility for digital content for students and parents with
    disabilities is provided by the Department of Education, State
    education agencies (SEAs) and local education agencies (LEAs)?
        Answer. I am familiar with OSERS' previous focus on accessibility
    and the significant investments OSEP has aimed at ensuring children
    with disabilities have access to digital content, reading materials,
    and technology. If confirmed, I look forward to better understanding
    those investments, and working to ensure children with disabilities
    have access in a manner consistent with all applicable laws and
    requirements.

        Question 39. In recent years, the use of technology for people with
    disabilities, especially students receiving special education supports
    and services, has grown dramatically. If confirmed, will you maintain
    and expand technology based services and supports for students with
    disabilities in special education?
        Answer. If confirmed, I look forward to better understanding OSERS'
    investments that focus on technology for individuals with disabilities.
    I am supportive of existing discretionary grant opportunities
    authorized under Part D of IDEA and how those programs can be used to
    foster technology development in a manner consistent with IDEA.

        Question 40. Under the Workforce Innovation and Opportunity Act
    (WIOA), what do you believe should be the Department's interpretation
    of an integrated setting? Should this be defined at the work-unit
    level?
        Answer 40. I am committed to enforcing the Workforce Innovation and
    Opportunity Act to ensure that individuals with disabilities have the
    opportunity to work in fully integrated settings. If confirmed, I will
    work with staff from OSERS staff, the Office of the General Counsel,
    and other offices to make sure the Department is appropriately
    interpreting the law.

        Question 41. Under WIOA, should the Department allow AbilityOne
    contracts an exemption to allow enclave or other types of group work
    settings of primarily individuals with disabilities to meet the
    definition of an integrated setting?
        Answer. I am committed to enforcing the Workforce Innovation and
    Opportunity Act is implemented properly. If confirmed, I will work with
    staff from OSERS staff, the Office of the General Counsel, and other
    offices to make sure the Department is appropriately interpreting the
    law.

        Question 42. Subminimum wage placements do not qualify as
    employment outcomes under vocational rehabilitation regulations.
    However, some support changing that requirement to allow for subminimum
    wage employment to count as an allowable placement under the VR
    program. In your opinion should subminimum wage be an allowable
    placement under the VR program for youth? For adults?
        Answer. I am committed to enforcing the VR program is implemented
    properly. Should I be confirmed, I would work with staff from OSERS
    staff, the Office of the General Counsel, and other offices to make
    sure the Department is appropriately interpreting the law and
    applicable regulations.

        Question 43. Section 511 of WIOA plays an important role in
    diverting youth with disabilities away from subminimum wage jobs toward
    competitive integrated employment. However, some segregated employment
    settings continue to advocate that youth with disabilities be allowed
    to go directly to subminimum wage jobs and to segregated settings
    without first going to the state VR system. Do you support youth with
    disabilities being required to explore integrated work, even if their
    parents express an interest in segregated employment setting?
        Answer. A fundamental principle of the Workforce Innovation and
    Opportunity Act (WIOA) is that individuals and youth with disabilities
    work in competitive integrated employment. Furthermore, Section 511
    places limitations on the ability of individuals with disabilities to
    be paid subminimum wages. I am committed to enforcing the statutory
    requirements of WIOA. If confirmed, I look forward to working with
    Department officials and state vocational rehabilitation agencies to
    work with parents and families and support the decisions of families
    within the scope of statute.

        Question 44. In vocational rehabilitation, there is some confusion
    around ``informed choice.'' The HELP Committee continues to hear about
    agencies using labor market data to support only employment goals in
    line with labor market demands. This practice limits the range of
    employment opportunities available to consumers of vocational
    rehabilitation. Should state vocational rehabilitation agencies limit
    employment opportunity goals only to jobs that are in demand in the
    local labor market?
        Answer. Individuals with disabilities participating in vocational
    rehabilitation programs are certainly entitled to exercise choice with
    respect to employment outcomes allowed under the vocational
    rehabilitation program. The law itself, the Workforce Innovation and
    Opportunity Act (WIOA), establishes those parameters. If confirmed, I
    look forward to working with Department officials and state vocational
    rehabilitation agencies to ensure that the statutory requirements of
    WIOA are met--and that individuals participating in the program have
    the opportunity to pursue their desired employment outcomes.

        Question 45. If confirmed, how will you implement the
    recommendations included in the congressionally mandated report of the
    Advisory Committee on Increasing Competitive Integrated Employment for
    Individuals with Disability?
        Answer. While I am familiar with the report, my previous work has
    not provided an opportunity to analyze the recommendations of the
    Committee related to increasing opportunities for individuals with
    disabilities to obtain competitive integrated employment. If confirmed,
    I look forward to working with staff from the Department, stakeholders,
    vocational rehabilitation agencies, and families to better understand
    the recommendations and to determine how we can work together to
    increase opportunities for individuals with disabilities to work in
    fully integrated settings.

        Question 46. Do you support dual enrollment in high school and
    post-secondary education for students with disabilities, including
    students with intellectual disabilities? Please explain your reasoning.
        Answer. Several states and local school districts have programs in
    place that allow students to participate in dual enrollment programs
    and post-secondary education partnerships. Such programs increase post-
    secondary opportunities and provide for a smooth and successful
    transition into post-secondary opportunities. Such programs should be
    accessible and available to children and youth with disabilities. But
    whether to support dual enrollment programs is a matter best left to
    state and local officials who are closer to the needs of their
    students.

        Question 47. What is your opinion of the Randolph-Sheppard Program
    administered by the Rehabilitation Services Administration?
        Answer. The Randolph-Sheppard Act is Federal law. The statute was
    passed by Congress and is administered by OSERS. I do not view
    implementation of the law as optional. If confirmed, under my
    leadership, OSERS will continue to administer the program
    appropriately.

        Question 48. Do you commit to inform the members of this Committee
    if you intend to undertake any review or revision of any existing
    guidance?
        Answer. My understanding is that the Department is thoroughly
    reviewing all guidance pursuant to Executive Order 13777. If confirmed,
    I will work, as appropriate within my role, with Department officials,
    including the Department's Office of Legislation and congressional
    Affairs, on these matters.

        Question 49. What is your opinion about whether minority members of
    the HELP Committee have the authority to conduct oversight of the U.S.
    Department of Education?
        Answer. I appreciate and respect the oversight responsibilities of
    Members of Congress and this committee. If confirmed, I will work with
    the Office of Legislation and congressional Affairs to be as responsive
    as possible to all congressional inquiries in a timely and thoughtful
    way, regardless of party.

        Question 50. If confirmed, do you agree to provide briefings to
    members of the HELP Committee, including minority members, if
    requested?
        Answer. If confirmed, I will work with my colleagues in the Office
    of Legislation and congressional Affairs to ensure any briefing
    requests from members of the HELP Committee regardless of party or
    position are responded to in a timely and appropriate manner, whenever
    participation by the Office of Special Education and Rehabilitative
    Services is requested.

        Question 51. If confirmed, do you commit to answer promptly and
    completely any letters or requests for information from individual
    members of the HELP Committee including request for Department of
    Education documents, communications, or other forms of data?
        Answer. If confirmed, I work with the Office of Legislation and
    congressional Affairs, as appropriate, to be as responsive as possible
    to all congressional inquiries and requests for information in a timely
    and thoughtful way.

                                senator sanders
        Question 1. While you were the Director of the Division of Learning
    Services and State Director of Special Education for the Kentucky
    Department of Education, the graduation rate for school year 2014-2015
    for white students was 89 percent, black students was 80 percent,
    Hispanic students was 83 percent, American Indian/Alaskan Native
    students was 81 percent, students with disabilities was 66 percent, and
    English learner students was 67 percent. What best practices did you
    determine from your time with the Kentucky Department of Education
    would help schools improve graduation rates for students with
    disabilities? As Assistant Secretary for Special Education and
    Rehabilitative Services, how will you help schools across the country
    improve their graduation rates for students with disabilities?
        Answer. I am proud of my tenure as the Director of the Division of
    Learning Services at the Kentucky Department of Education (KDE).
    Kentucky's Adjusted Cohort Graduation Rate (ACGR) for students with
    disabilities exceeds the national rate. Additionally, across the years
    of my tenure, the ACGR between students with disabilities and the all
    students group in Kentucky was smaller than the gap in the whole of the
    U.S. Over the years, the number of students with disabilities
    graduating with a regular high school diploma has remained steady,
    exceeding that of the U.S. as a whole. In 2014-2015, Black and Hispanic
    students with disabilities left school with a regular high school
    diploma at higher rates than the national average (7 percent and 8
    percent respectively).
        During my tenure I demonstrated a commitment to raising
    expectations and improving outcomes for all students with disabilities,
    including students with the most significant cognitive disabilities,
    and ensuring that those high expectations were met with the appropriate
    resources and supports students needed in order to achieve the outcomes
    that we and, most importantly they, envisioned. This included a focus
    on understanding and addressing the capacity needs of teachers and
    leaders so that they could meet the diverse and particular needs of the
    students they served. In service to that commitment, during my tenure,
    Kentucky applied for and received, from the U.S. Department of
    Education, Office of Special Education Programs (OSEP), a State
    Personnel Development Grant (SPDG). The SPDG Program, authorized by the
    Individuals with Disabilities Education Act (IDEA), provides funds to
    assist states in reforming and improving their systems for personnel
    preparation and professional development in early intervention,
    education and transition services in order to enhance results for
    children with disabilities.
        In addition, during my tenure, I demonstrated a commitment to
    collaborating meaningfully and effectively with any and all who had a
    stake in the success of students with disabilities, including across
    offices/ division within the state department of education, other state
    child serving agencies, local schools, districts, and communities, and
    parents and families.
        I am consistently struck by the fact that the Office of Special
    Education and Rehabilitative Services (OSERS) has the unique
    opportunity to impact positively across the life of an individual with
    a disability--from birth through competitive integrated employment. If
    confirmed as Assistant Secretary for OSERS, I will look forward to the
    opportunity to serve the millions of children, youth, and adults with
    disabilities and their families across our Nation, and will faithfully
    demonstrate the same commitments that I have across my career; namely,
    to raising expectations and improving outcomes for children, youth, and
    adults with disabilities, and to collaborating meaningfully and
    effectively with any and all who have a stake in their success.
        Question 2. The Every Student Succeeds Act requires stakeholder
    engagement in the development of state plans. But as you know, many in
    the disability community felt like this was a ``check the box''
    exercise instead of a meaningful opportunity to provide feedback. Since
    you were Director of Special Education Outcomes at the Council of Chief
    State School Officers (CCSSO) while the law was being implemented, what
    is your perspective on this? More generally, what responsibility do you
    see for the Assistant Secretary of OSERS to ensure that states involve
    parents and communities, especially those with diverse voices, in the
    development and implementation of state plans?
        Answer. I view components of Every Student Succeeds Act that
    require states to meaningfully engage with stakeholders, including
    stakeholders in the disability community, as key provisions and
    opportunities for state-led collaboration. In my previous capacity with
    CCSSO, I worked with state leaders and certainly encouraged such
    collaboration. In fact, while the Director of Special Education in
    Kentucky, I demonstrated a commitment to collaborating meaningfully and
    effectively with stakeholders. If confirmed, I will continue to
    prioritize stakeholder engagement and look forward to working with
    stakeholders on issues directly under the purview of OSERS.
                                 senator casey
        Question 1. The most recent Civil Rights Data Collection had over
    170,000 reported incidents of restraining or secluding students during
    the 2013-2014 school year. Restraints and seclusions can lead to
    significant emotional trauma as well as physical harm and, in the worst
    cases, death of a student. A 2014 report from this Committee reported
    incidents of families who had not known about their children being
    restrained or secluded in school. In some cases, families requested
    that schools stop these practices and they were denied that request.
    One family even reported they had to move in order to stop the use of
    restraint and seclusion with their daughter. In May 2012 the Department
    issued a resource document related to the use of restraint and
    seclusion in schools that emphasized prevention and use of those
    techniques only in emergency situations. That year the Civil Rights
    Data Collection reported just over 60,000 incidents of restraint and
    seclusion in schools. The use has almost tripled since that time and
    the Department has not issued formal guidance or regulations.
            a. What will you do to assist states and districts to increase
            their efforts to create positive school environments and reduce
            the use of restraint and seclusion in schools?
        Answer. OSERS has a strong record of investing in positive
    behavioral interventions and supports and, if confirmed, I look forward
    to ensuring states and local school districts have access to these
    tools and programs. If one child is harmed by the inappropriate use of
    seclusion and restraint, it is too many. I look forward to working with
    states to ensure they have access to training and the tools needed to
    provide the behavioral interventions and supports that students need.

            b. If confirmed, what efforts will you promote to decrease
            bullying in schools, increase student engagement, and decrease
            emergency situations where restraint or seclusion would be
            used?
        Answer. If confirmed, I look forward to examining how bullying
    affects children with disabilities, and working with the Office for
    Civil Rights to address these issues. I believe in the implementation
    schoolwide systems of support that include proactive strategies for
    defining, teaching, and supporting appropriate student behaviors to
    create positive school environments.

        Question 2. Students with disabilities were the overwhelming
    recipients of the use of restraint and seclusion as reported by the
    most recent Civil Rights Data Collection. How will you work with states
    and local school districts to reduce the use of restraint and seclusion
    with children with disabilities while also ensuring they have access to
    the least restrictive environment for instruction and access to the
    general curriculum?
        Answer. Consistent with OSERS' previous investments, I believe that
    supporting states and local school districts and providing technical
    assistance to schools as they implement positive behavioral
    interventions and supports is the best way to address this problem. If
    confirmed, I look forward to working with the Office for Civil Rights
    and examining how we can better support states and school districts.

        Question 3. GAO recently released a report about the use of private
    school vouchers on students with disabilities. One of the major
    findings was that only half of private schools provide families' of
    students with disabilities information about the specific services
    offered, even when the schools are specifically designed for students
    with disabilities. This information can include which disabilities are
    served at the school and how families' rights change under IDEA when
    they move from a public school to a private school. How will you ensure
    that families who may be considering private school placement for their
    children with disabilities receive all of the information about their
    rights and their children's rights?
        Answer. I am concerned about any parent not having the information
    they need to make informed decisions about their child's education. If
    confirmed, I look forward to working with the Secretary to determine
    how the U.S. Department of Education can support state-developed and
    operated voucher programs and how OSERS can empower parents with
    information under the current statutory provisions of the Individuals
    with Disabilities Education Act.

            a. How will you ensure that families of children with
            disabilities know how academically effective the school they
            are considering is with instructing their son or daughter to
            reach academic success?
        Answer If confirmed, I will encourage transparency of information
    on academic effectiveness and I will look into how OSERS can further
    help empower parents to receive relevant information. Children with
    disabilities who are considering placing their children in private
    school settings are best suited to make a decision regarding the
    effectiveness of a particular school and how that school may best meet
    the needs of their child.

            b. What requirements do you see implementing to ensure parents
            and families have the information they need to make the
            critical decision about where their children should attend
            school?
        Answer. The Individuals with Disabilities Education Act sets forth
    the legal rights of children with disabilities who are parentally
    placed in private schools. I am concerned about any parent not having
    the information they need to make informed decisions about their
    child's education. If confirmed, I am open to learning more and
    discussing with the Secretary how the Department might best empower
    parents as well as respond to the recommendations from the GAO report.

            c. Deciding to move from one public school to another or to a
            private school setting is a huge decision, particularly if that
            move includes giving up certain rights to due process and
            access to services. What regulations and guidance will you put
            in place to ensure families have the information they need?
        Answer. The Individuals with Disabilities Education Act sets forth
    the legal rights of children with disabilities who are parentally
    placed in private schools. If confirmed, I look forward to working with
    the Secretary to determine how the Department can best and most
    appropriately support and empower parents.

                                 senator bennet
        Question 1. As Assistant Secretary, what steps will you take to
    ensure that families can participate in the decisionmaking process of
    educating a child with disabilities?
        Answer. A long-standing, fundamental principle inherent in the
    Individuals with Disabilities Education Act (IDEA) is parental
    involvement in educational decisions involving their child. I am
    committed to this important principle and to upholding IDEA's focus on
    involving parents.

        Question 2. As you know, there's a shortage of special education
    teacher in the US? How do you believe our nation should address this
    shortage? What steps will you take at the Department of Education to
    ensure that students with disabilities are taught by qualified
    teachers?
        Answer. Teacher recruitment and teacher retention is a challenge
    for all states, and specifically in the area of special education.
    Teacher preparation, teaching training, and teacher certification is
    determined at the state level and the requirements and processes vary
    drastically by state. In my experience, the challenges are specific and
    vary by state. If confirmed, I am committed to supporting states in
    addressing these important issues and fostering an environment that
    allows states to innovatively address these challenges.

        Question 3. How can we better align education and employment
    programs to ensure that students with disabilities can work and live
    independently? How will you address this at the Department of
    Education?
        Answer. OSERS can play a key role in supporting states and local
    school districts as they focus on transition services--and as special
    educators and post-secondary leaders including vocational
    rehabilitation work together to ensure that youth with disabilities
    transition successfully from K-12 into post-secondary opportunities.
    OSERS has key investments that support states in these efforts and it
    is important to continue the focus on aligning services to ensure
    successful transition. If confirmed, I look forward to working with the
    Secretary to determine how the Department can best and most
    appropriately support these efforts.
                               senator whitehouse
        Question 1. In speaking with Rhode Island educators, I have often
    found that the most innovative solutions for improving education come
    from teachers themselves. Will you commit to meeting with public school
    teachers on a regular basis to discuss their ideas for improving public
    schools?
        Answer. I am committed to working with all stakeholders who play a
    key role in ensuring that children with disabilities receive quality
    special education and related services and access to a quality
    education and the opportunity to succeed. In my previous role as the
    Kentucky State Department of Education, I prioritized stakeholder
    engagement, including engagement with teachers. I utilized my
    relationships with stakeholders in my more recent role at CCSSO. If
    confirmed, I will continue to work with stakeholders so that we can
    leverage partnerships to improve outcomes for children with
    disabilities.

        Question 2. In ESSA, I authored several provisions to help keep
    kids who encounter the juvenile justice system stay on track, including
    having states establish procedures around timely transitions, back to
    school or re-entry programs upon release, and to better facilitate
    transferring academic credits and records between school and juvenile
    justice facilities. Research indicates that students with disabilities
    are overrepresented in the juvenile justice system. What steps do you
    believe are needed to ensure that students with disabilities are not
    unduly ensnared in the juvenile justice system?
        Answer. I believe that continued support to states and local school
    districts is necessary for public agencies to understand the
    requirements of the Individuals with Disabilities Education Act (IDEA)
    and how those requirements apply to youth with disabilities
    incarcerated in the juvenile justice system. If confirmed, I look
    forward to further examining this issue and determining how OSERS can
    work with states and local school districts to build capacity to
    address these issues within requirements of IDEA.

        Question 3. What obligation does the Federal Government have to
    provide funding to state and local entities to assist in covering
    public school costs related to serving children with disabilities?
            a. Do you believe the Federal Government should increase its
            financial commitment to states and local districts under IDEA?
        Answer. If confirmed, I am committed to working with the Secretary
    and Members of Congress to ensure that states and school districts have
    needed resources and funding to serve children with disabilities under
    IDEA.

            b. Should the Federal Government fund 40 percent of IDEA costs
            as it originally intended to?
        Answer. If confirmed, I am committed to working with the Secretary
    and Members of Congress to ensure that states and school districts have
    needed resources and funding to serve children with disabilities under
    IDEA.

        Question 4. Is it your position that students with disabilities who
    attend schools funded with public money, whether at public schools,
    public charter schools or through voucher programs should be protected
    under IDEA? If not, please explain what limitations you believe are
    appropriate.
        Answer. Charter schools are public schools and, therefore, required
    to meet any and all requirements under the Individuals with Disability
    Education Act (IDEA) applicable to traditional public schools. IDEA
    also sets forth the rights of children with disabilities who are
    parentally placed in private schools. The law itself designates the
    rights and protections afforded to this population of students. If
    confirmed, I look forward to working with the Secretary to determine
    how the Department can best and most appropriately implement the law.

        Question 5. Do you have concerns about voucher programs funded
    through public funds that require students with disabilities to waive
    their IDEA rights? What are your views on such waivers?
        Answer. The Individuals with Disabilities Education Act sets forth
    the rights of children with disabilities who are parentally placed in
    private schools-regardless of whether the child is attending a private
    school through a state-developed voucher program. While it is true that
    the rights of such children change once they are enrolled in private
    schools, they are eligible for equitable services under IDEA. They are
    also considered as a part of the statutorily prescribed meaningful
    consultation process. If confirmed, I look forward to working with the
    Secretary to determine how the Department can best and most
    appropriately support and empower parents.Q04
        Question 6. Do you commit to not using non-commercial airplane or
    helicopter travel paid for at taxpayer expense?
        Answer. The Administration has put into place procedures to address
    these concerns. I am fully committed to not using non-commercial
    airplane or helicopter travel--as a steward of the taxpayer funds--and
    committed to complying with all requirements and directives to ensure
    that taxpayers' funds are used appropriately.
                                 senator murphy
        Question 1. ESSA now requires that state plans explain how they
    will assist districts in reducing the use of aversive behavioral
    interventions, such as seclusion and restraint. Unfortunately, the
    Department has approved some state plans that omitted this requirement.
    OSERS staff are part of the team that reviews ESSA state plans. Would
    you advise the Secretary to approve a plan that does not meet this
    statutory requirement?
        Answer. If confirmed, I am committed to working with the Office of
    Elementary and Secondary Education and supporting the Department's
    efforts to implement ESSA as Congress intended.
        Question 2. In your role heading the Office of Special Education
    and Rehabilitative Services, how will you ensure students with
    disabilities are protected from harmful discipline practices like
    seclusion and restraint?
        Answer. If one child is harmed by the in appropriate use of
    seclusion and restraint, it is too many. If confirmed, I look forward
    to working with the Office for Civil Rights and other Department staff
    to address these issues. Additionally, OSERS has a strong record of
    investing in positive behavioral interventions and supports and
    providing technical assistance to states and school districts as they
    implement such systems. I look forward to ensuring states and local
    school districts have access to these tools and programs.

                                 senator kaine
        Question 1. During your time as state director in Kentucky, few
    School Districts were identified for significant disproportionality--
    for example, in 2010 merely 5 of the 176 school districts in Kentucky
    were identified and only 7 in 2011. Yet, when the Department of
    Education released its analysis of Kentucky last year--using a simple
    methodology for identifying problematic schools--they found that 115 of
    Kentucky's districts had significant disproportionality. How do you
    explain this?
        Question 1a. Why didn't more schools, under your direct leadership
    at the Kentucky DOE, get identified for significant disproportionality
    when the data clearly shows a big problem?
        Answer. I believe the analysis mentioned in this question refers to
    the February 2016 report from the Department of Education (ED)--Racial
    and Ethnic Disparities in Special Education: A Multi-Year
    Disproportionality Analysis by state, Analysis by Category, and Race/
    Ethnicity. If so, the purpose of this document, as stated by ED, was to
    ``provide the public with a set of tables showing the number and
    percentage of school districts that would be identified with
    significant disproportionality if ED's example risk ratio thresholds
    were adopted by all 50 states and the District of Columbia.''

        The IDEA does not itself define significant disproportionality, and
    places obligation on states to determine if significant
    disproportionality is occurring, and leaves how the determination is
    made to states. During my tenure as Director of the Division of
    Learning Services at the Kentucky Department of Education (KDE), the
    state made these determinations using the following process:
             Calculated the ratio at which students of a particular
            race/ethnicity were identified;
             Calculated the ratio at which students not of that
            race/ethnicity were identified;
             Compared these ratios
             When the comparison revealed that the ratio for
            students of a specific race/ethnicity was at least three (3)
            times greater than the ratio for students not of that race/
            ethnicity, KDE identified the district as having significant
            disproportionality in the area examined.
             If identified, districts were required to use 15
            percent of their Part B funds under IDEA on Comprehensive
            Coordinated Early Intervening Services (CEIS).
        * The ``N'' size required: Fifty (50) students of the particular
    race/ethnicity enrolled, and ten (10) students of that race/ethnicity
    identified for special education
        The KDE provided annual training/support to districts identified as
    having significant disproportionality. Moreover, in April 2015, KDE
    developed and conducted a series of web-based trainings on significant
    disproportionality and the use Part B funds under IDEA on Comprehensive
    Coordinated Early Intervening Services.
        During my tenure as Director of the Division of Learning Services
    at KDE, Kentucky complied with the requirements of IDEA regarding
    significant disproportionality. If confirmed as Assistant Secretary for
    the Office of Special Education and Rehabilitative Services, I will
    work faithfully to do what is best for students and am committed to
    upholding IDEA's provisions and safeguards on significant
    disproportionality.
        Question 2. According to a 2016 report by the Civil Rights Data
    Collection, students with disabilities are more than two times as
    likely as students without disabilities to receive a suspension in a K-
    12 setting. Furthermore, students with disabilities experience
    disproportionate seclusion and/or restraint as a disciplinary measure.
    In your role, how will you hold schools and school districts
    accountable for disproportionality in using exclusionary discipline
    practices targeted at students with disabilities?
        Answer. If confirmed, I look forward to working with the Office for
    Civil Rights to address disproportional discipline practices, including
    exclusionary discipline practice, in accordance with IDEA. OSERS has a
    strong record of investing in positive behavioral interventions and
    supports, which I believe can provide evidence-based tools for dealing
    with such challenges. I look forward to ensuring states and local
    school districts have access to these tools and programs.

            a. In your experience as a special education teacher, what are
            the most effective behavior management strategies to maximize
            student learning and eliminate the need for exclusionary
            discipline policies?
        Answer. The Individuals with Disabilities Education Act (IDEA)
    emphasizes the use of positive behavioral interventions and supports,
    and I found that to be effective to maximize student learning and
    eliminate the need for exclusionary discipline policies. The choice of
    effective behavior strategies should be made by a team of people who
    know the child best, be based on evidence, and be focused on what will
    best meet the needs of the child. In my experience, the implementation
    of schoolwide systems of support that include proactive strategies for
    defining, teaching, and supporting appropriate student behaviors help
    to create positive school environments where students' and educators'
    needs are met and where teaching and learning can most effectively
    occur. Within this system of support, careful attention to ensuring
    that appropriate behavioral supports are included in the students'
    Individualized Education Program (IEP), and that the IEP is implemented
    accordingly, is critical.
        Question 3. On November 30th, 2017, the U.S. Government
    Accountability Office (GAO) released a new report around private school
    choice for children with disabilities. One recommendation GAO offers is
    for the Assistant Secretary for OSERS to review and correct inaccurate
    IDEA-related information provided by a state. In your role as Assistant
    Secretary, do you commit to following this GAO recommendation?
        Answer. If confirmed, I am committed to examining the
    recommendation, within the statutory provisions of IDEA, and working
    with the Secretary to determine how we can best support parents so that
    they have access to accurate and helpful information.

            a. How will you work with states to ensure parents and students
            with disabilities are well-aware that a student's rights under
            IDEA will be given up if the student attends a private school?
        Answer. The Individuals with Disabilities Education Act (IDEA)
    prescribes the rights and protections afforded to children with
    disabilities who are parentally placed in private school programs. The
    law itself determines what rights are afforded to those children, and I
    look forward to looking at how the Department can appropriately help
    states, within the provisions of IDEA. If confirmed, I look forward to
    working with the Secretary to determine how we can best support parents
    so that they have access to accurate and helpful information.

        Question 4. What steps will you take to hold charter and private
    school accountable for offering appropriate services for students with
    disabilities?
        Answer. Charter schools are public schools required to meet any and
    all requirements under the Individuals with Disability Education Act
    (IDEA) applicable to traditional public schools. The provisions of IDEA
    that require free appropriate public education do not apply to private
    schools. If confirmed, I am committed to enforcing existing provisions
    of IDEA.

        Question 5. It is critical that the civil rights of all students,
    including those with disabilities, are protected. How will your office
    work with the Office of Civil Rights to ensure this is the case?
        Answer. While OCR's authority in enforcing anti-discrimination laws
    differs from OSERS' mission, the offices do have the shared mission of
    working on behalf of children with disabilities to ensure that they
    have an opportunity to succeed in an environment free from
    discrimination. I believe there are opportunities for collaboration
    that would allow the offices to focus on improved outcomes for children
    with disabilities. If confirmed, I look forward to working with OCR to
    ensure that students with disabilities have access to a quality
    education.

        Question 6. Infants, toddlers, and preschool children with
    disabilities deserve access to high-quality early childhood programs.
    How will you work with the Department of Health and Human Services to
    support the inclusion of young students with disabilities in these
    programs? The Department of Health and Human Services helps ensure that
    infants, toddlers, and young children with disabilities have access to
    high quality early education programs. This aligns with OSERS' mission
    of ensure that infants and toddlers with disabilities are provided
    quality early intervention services.
        Answer. If confirmed, I look forward to having an opportunity to
    work with HHS to support states as they work to provide quality
    services to all young children with disabilities, in accordance with
    IDEA.

                                 senator hassan
        Question 1. During the hearing, you said you had read the recent
    Government Accountability Office (GAO) report, ``Private School Choice:
    Federal Actions Needed to Ensure Parents are Notified About Changes in
    Rights for Students with Disabilities.'' On page 30 of this report
    there is a recommendation for executive action pertaining to the role
    of the Assistance Secretary for Special Education and Rehabilitative
    Services. This recommendation asks the Assistant Secretary to work with
    states to correct inaccurate information. If confirmed, do you commit
    to executing this recommendation?
        Answer. I am committed to implementing the Individuals with
    Disabilities Education Act (IDEA) and, if confirmed, I look forward to
    working with the Secretary to determine how OSERS can work with states
    to support state-developed opportunities that provide choices for
    parents and families of children with disabilities. I am concerned
    about any parent not having the information they need to make informed
    decisions about their child's education. If confirmed, I am open to
    learning more and discussing with the Secretary how the Department
    might best respond to the recommendations from the GAO report.

        Question 2. The Department of Education has two very broad grants
    of authority under law, 20 USC 1221e-3 (``to make, promulgate, issue,
    rescind, and amend rules and regulations governing the manner of
    operation of, and governing the applicable programs administered by,
    the Department''); and 20 USC 3474 (``to prescribe such rules and
    regulations as the Secretary determines necessary or appropriate to
    administer and manage the functions of the Secretary or the
    Department.'').
        Do you believe either authority enables the Department of Education
    and the Secretary to require that states disclose to students and their
    families when they give up their rights under the Individuals with
    Disabilities Education Act to a Free and Appropriate Public Education
    in the least restrictive environment when using a voucher to attend a
    private school? And would you work with the Secretary to do this?
        Answer. The cited provisions of the Individuals with Disabilities
    Education Act (IDEA) apply to the administration of authorized Federal
    programs under IDEA. The law does not include notification requirements
    relating specifically to how the rights of parents or children with
    disabilities change when they voluntarily ``un-enroll'' from the public
    school system. If confirmed, I look forward to working with the
    Secretary to determine how OSERS can address this issue within the
    parameters of IDEA.

                                 senator hatch
        Question 1. The issue of providing students with disabilities
    access to innovative technologies is very important. I recently
    cosponsored the Aim High Act with Senator Warren, which would establish
    an independent commission to provide institutions with voluntary
    guidelines to follow in providing access to educational technologies in
    a way that aligns with Federal disabilities law. Do you believe it's
    important to expand access to educational technology for students with
    disabilities in a way that coincides with Federal disabilities law?
        Answer. Ensuring that children and youth with disabilities have
    access to innovative technologies is a significant goal. OSERS has a
    long history of using discretionary grant funding under Part D of the
    Individuals with Disabilities Education Act (IDEA) to not only increase
    access to innovative technologies, but to provide technical assistance
    to states and local school districts as they work to provide fully
    accessible technology to disabled students. OSERS investments also
    encourage the development of new technologies that benefit children
    with disabilities. If confirmed, I look forward to learning more about
    OSERS ongoing investments and working further to ensure students with
    disabilities have access to innovative technologies that are key to
    their success in school.
                                senator collins
        Question 1. When I talk to school administrators in my state and
    ask them, what is the single greatest impact that the Federal
    Government could have on your ability to provide a good education for
    all students, invariably they tell me it would be for the Federal
    Government to pay it's promised share for IDEA--for special education
    for children with special needs. The Federal Government has never lived
    up to the promise it made in the mid-1970's when this landmark law was
    passed. Do you agree that this would make a difference for every school
    district?
        Answer. If confirmed, I am committed to working with the Secretary
    and Members of Congress to ensure that states and school districts have
    the resources and funding needed to serve children with disabilities.).
    I recognize that it is ultimately up to Congress to determine how much
    Federal funding should be appropriated for those purposes. Undoubtedly,
    financial resources contribute to a public agency's ability to meet the
    requirements of the IDEA. Funding, however, is not the sole
    determinative factor in a school's ability to provide quality special
    education and related services. Other factors such as the provision of
    quality instruction, progress monitoring within a schoolwide system of
    support, a commitment to having high expectations, and creating a
    supported learning environment are also critical components of ensuring
    schools have the resources to provide a high quality education for
    children with disabilities. If confirmed, I look forward to working
    with the Secretary and Members of Congress on these important issues.
      Response by Kenneth Marcus to Questions of Senator Murray, Senator
      Sanders, Senator Casey, Senator Bennet, Senator Whitehouse, Senator
    Baldwin, Senator Murphy, Senator Warren, Senator Kaine, Senator Hassan,
                      Senator Murkowski, and Senator Hatch
                                 senator murray
        Question 1. Previous Assistant Secretaries for Civil Rights have
    maintained oversight of specific types of cases to ensure uniform
    approaches to cases across regional offices. If confirmed, will you
    require regional directors to report to you on open investigations into
    certain types of complaints? If so, which types of complaints?
        Answer. Ensuring national consistency across the regional offices
    of OCR is an important purpose of management and oversight. If
    confirmed, I will take appropriate measures to further the goal of
    uniform approaches to cases throughout OCR.

        Question 2. Should OCR investigators only open systemic
    investigations when the complainant has alleged a systemic problem?
        Answer. There are many factors that should be considered in a
    decision whether an investigation should be opened systemically. If
    confirmed, I will ensure that OCR's approach to systemic investigations
    furthers OCR's mission of vigorous enforcement of the civil rights
    statutes under OCR's jurisdiction.

        Question 3. When is it appropriate to use each of the following
    types of OCR enforcement activities: 1) systemic investigations; 2)
    individual investigations; and 3) compliance reviews?
        Answer. There are many factors that should be considered in
    determining the facts and circumstances under which an individual
    investigation, systemic investigation, or compliance review is most
    appropriate for a particular enforcement activity. If confirmed, I will
    ensure that OCR's approach to each type of investigation furthers OCR's
    mission of vigorous enforcement of the civil rights statutes under
    OCR's jurisdiction.

        Question 4. OCR has seen an increase in the number of civil rights
    complaints filed from approximately 8,600 complaints in 2009 to about
    10,500 unduplicated complaints in 2016. This year, the Department
    suggested increasing the caseload of field investigators while also
    proposing cutting the non-attorney staff by 59 employees. Given your
    experience at the Department, do you agree OCR needs fewer staff
    members? Do you think OCR has sufficient staff to resolve complaints in
    a high quality and efficient matter?
        Answer. If confirmed, I look forward to examining the resources
    available to OCR and to the best of my ability ensuring that OCR
    continues to have sufficient staff to resolve complaints in a high
    quality, efficient manner.

        Question 5. The 2018 budget proposed by the Trump Administration
    for the Office for Civil Rights includes a reduction of $1.7 million
    that, combined with increases for the Civil Rights Data Collection
    (CRDC), would result in 59 fewer staff at a time when OCR continues to
    experience increasing workloads of complaints and investigations. Both
    the House and Senate Committees on Appropriations rejected this
    proposal, with the Senate Committee increasing OCR's budget to the
    level required to maintain all existing staff and implement the CRDC.
        I have strongly argued for increases in OCR's budget because of its
    critical mission and increasing workloads. Unfortunately, this year OCR
    reduced its staffing of attorney/equal opportunity specialists by more
    than 40, or 10 percent, and offered buyouts to another 45 employees.
    That means that the number of staff available to effectively
    investigate and monitor complaints and investigations will further
    increase when they already are at unacceptably high levels.
        Do you commit that you will advocate for the resources necessary to
    thoroughly investigate and monitor OCR's workloads and fulfill the
    mission of OCR? If confirmed and Congress provides you with funding for
    staff needed to fully investigate and monitor complaints in a timely
    way, can you assure me that you will use the appropriation for this
    purpose?
        Answer. If confirmed, I will advocate for OCR having the budget and
    resources necessary to fulfill its critical mission, and will manage
    OCR's operations in such a way that OCR stewards its congressional
    appropriations to ensure that OCR's role enforcing civil rights is
    conducted vigorously and efficiently.

        Question 6. In your view, how does implicit bias contribute to
    disparate impact?
        Answer. Generally speaking, disparate impact in many contexts
    (e.g., rates of discipline of students) can be caused by a multitude of
    factors, which may include implicit biases of decisionmakers.

        Question 7. At the 10th Anniversary National Convention of the
    American Constitution Society, you participated in a panel on disparate
    impact, during which you stated that there should be a ``good faith
    exception'' to disparate impact liability. What did you mean by ``good
    faith exception,'' and what sorts of evidence would you accept to
    demonstrate ``good faith'' in the disparate impact context? How would a
    good faith exception operate in practice?
        Answer. Disparate impact can be a useful civil rights enforcement
    tool for identifying discrimination in the absence of direct evidence
    of intent. I presented my personal legal assessment of the issues
    raised in this question, as I understood them at roughly the time of
    that ACS conference, in my article on ``The War Between Disparate
    Impact and Equal Protection.'' That article can be found here: https://
    object.cato.org/sites/cato.org/files/serials/files/supreme-court-
    review/2009/9/ricci-marcus--0.pdf. To my knowledge, a ``good faith''
    exception does not exist under current OCR policy. If I were confirmed,
    I would not infer a good faith exception in OCR disparate impact
    policies unless one was provided within a statute or regulation over
    which OCR has jurisdiction.

        Question 8. At the same panel, you shared that during your tenure
    ``overseeing civil rights enforcement agencies during the President
    George W. Bush administration,'' you were concerned that the disparate
    impact doctrine had been ``abused'' in prior administrations. Please
    give examples of how the disparate impact doctrine was abused.
        Answer. I do not recall what examples I had in mind at the time.

        Question 9. If a school district's African-American students are
    4.5 times less likely than their white peers to have been identified as
    eligible for the district's Gifted and Talented Education (GATE)
    programs, is that sufficient evidence to open a disparate impact
    investigation?
        Answer. There are many factors considered by OCR's dedicated,
    qualified career investigators in deciding whether a particular set of
    circumstances warrant opening an investigation, and it would be
    inappropriate for me to predetermine a hypothetical set of facts that
    could come before my potential employer. If confirmed, I will support
    enforcement of Title VI of the Civil Rights Act of 1964 to ensure that
    instances of racial discrimination are fully, vigorously investigated
    and remedied.

        Question 10. Do you commit to maintaining the Department of
    Education and Department of Justice joint 2014 Dear Colleague on
    disparate discipline?
        Answer. It's my understanding that the Department is under
    Presidential Executive Order to systematically review all regulations
    and guidance, and it would be premature of me to weigh in on that
    process without being privy to the discussions occurring in the
    Department in that regard. If confirmed, I look forward to engaging in
    the regulatory review process as it pertains to the 2014 Dear Colleague
    Letter on racially discriminatory discipline.

        Question 11. As I noted in a letter to Secretary DeVos, there have
    been far too many examples of messages of intolerance and hate directed
    at and often intended to intimidate students on our college campuses.
    As just a few examples, a swastika was found at Georgetown University
    in a bathroom on the first day of Rosh Hashanah. Flyers saying
    ``Imagine a Muslim-Free America'' and ``Beware the International Jew''
    were papered across the University of Houston's campus. And at the
    University of Maryland, a noose was placed in the kitchen of the Phi
    Kappa Tau fraternity.
        In fact, since March 2016, the Southern Poverty Law Center has
    identified more than 329 incidents of white nationalist fliers and
    recruitment materials on 241 different college campuses. Buzzfeed News
    identified 154 incidents of white supremacist propaganda and other acts
    of racism on college campuses since the election, and more than one in
    three of these incidents directly cited President Trump's name or one
    of his slogans. Do you believe college and university leadership should
    exercise their rights to disavow hate speech by naming the hate in
    open, campus-wide communications?
        Answer. In my personal capacity, and as President of the Louis D.
    Brandeis Center for Human Rights Under Law, I have repeatedly expressed
    that view. If confirmed, I will advise the Secretary and work with
    policymakers in OCR and other areas of the Department to promote the
    ability and responsibility of college and university leadership to
    maintain a safe, nondiscriminatory, inclusive campus culture and
    environment in which the robust exchange of ideas can occur.

        Question 12. What do you believe is the role of OCR in combating
    hate and discrimination on college campuses? What specific steps will
    you take at OCR to advance that role?
        Answer. Hate and discrimination have no place on college campuses,
    and OCR's critical mission includes enforcing the civil rights statutes
    prohibiting discrimination based on race, color, national origin, sex,
    age, and disability over which Congress has granted OCR enforcement
    authority. If confirmed, I will work to ensure that OCR's enforcement
    activities identify and remedy illegal discrimination and I will advise
    the Secretary and other areas of the Department to promote campus
    environments where free speech is exercised in a manner that ensures
    the safety and dignity of all students.

        Question 13. You authored the law review article ``Higher
    Education, Harassment, and First Amendment Opportunism,'' in the
    William & Mary Bill of Rights Journal in 2008. In that article, you
    wrote ``needless to say, the U.S. Department of Education's Office for
    Civil Rights may limit the extent to which it regulates speech
    activities as a matter of administrative discretion, even if it is not
    constitutionally mandated to do so.'' What factors will you consider
    when determining whether and how to regulate speech activities?
        Answer. If I were confirmed, I would apply existing law and policy,
    rather than my personal views or past academic publications. With
    respect to speech activities, I would consider the issues set forth in
    OCR's 2003 First Amendment Dear Colleague letter as well as other
    applicable guidance and law. https://www..ed.gov/about/offices/list/
    ocr/firstamend.html

        Question 14. In addition to speech activities, when does OCR have
    discretion to limit its enforcement of Federal or constitutional law?
        Answer. As a Federal agency, OCR has a responsibility to conduct
    its enforcement consistent with the protections guaranteed under the
    U.S. Constitution and to vigorously fulfill its mission of ensuring
    equal access to education for all students by remedying discrimination
    based on race, ethnicity, national origin, sex, and disability. If
    confirmed, my priority will be to robustly enforce the civil rights
    with which OCR has been granted jurisdiction, rather than to seek out
    the limits on OCR's enforcement activities.

        Question 15. You have written that without a definition of anti-
    Semitism, OCR ``has been paralyzed'' and ``is failing in its mission to
    protect Jewish students.'' If confirmed, will you adopt a definition of
    anti-Semitism? Do you support the adoption by OCR of the State
    Department's definition of anti-Semitism?
        Answer. In my personal capacity, and as President of the Louis D.
    Brandeis Center for Human Rights Under Law, I have indeed supported
    OCR's adoption of the State Department's definition of anti-Semitism,
    and I have not changed my views on this subject. If confirmed, however,
    I would engage in a different process, involving broader discussions
    with staff within the Department and outside stakeholders, before
    recommending particular policies of this sort.

        Question 16. If confirmed, do you plan to make investigations of
    anti-Semitic bullying and harassment a priority? Do you plan to
    initiate systemic investigations of anti-Semitic bullying and
    harassment?
        Answer. I am greatly concerned about incidents and patterns of
    anti-Semitic bullying and harassment in our nation's schools and
    college campuses. If confirmed, I will support OCR exercising its
    jurisdiction under Title VI of the Civil Rights Act of 1964 to address
    anti-Semitic harassment consistent with current law. I am equally
    concerned about incidents and patterns of bullying and harassment based
    on other forms of discrimination. If confirmed, I will evaluate the
    range of enforcement issues facing OCR and advise the Secretary as to
    any enforcement priorities that may best fulfill OCR's mission of
    vigorous enforcement of each of the civil rights statutes under OCR's
    jurisdiction, including whether systemic investigations or compliance
    reviews into particular types of discrimination will best fulfill that
    mission.

        Question 17. When does criticism of foreign governments constitute
    actionable harassment?
        Answer. The line between political speech protected by the First
    Amendment and actionable harassment often turns on the particular facts
    and circumstances. Recognizing and taking action against illegal
    harassment in a manner consistent with constitutional speech
    protections is one of the most difficult and important functions of
    OCR's enforcement activities. If confirmed, I will do my best to ensure
    that OCR consistently undertakes vigorous enforcement of civil rights
    statutes in a manner consistent with the U.S. Constitution.

        Question 18. Erwin Chemerinsky, Dean of Berkeley Law School and
    constitutional scholar, has criticized your approach to enforcing Title
    VII. According to news reports, Chemerinksy has said, ``any
    administrator in a public university who tried to follow Professor
    Marcus's approach would certainly be successfully sued for violating
    the First Amendment.'' (Stephen Zunes, ``Trump's Dangerous Appointment
    to Key Civil Rights Position: Kenneth Marcus,'' Huffington Post, 11/08/
    17). How would you advise a college administrator to balance concerns
    about discriminatory rhetoric with the mandate to protect free speech?
        Answer. It is my understanding that Dean Chemerinsky made this
    statement specifically about the approach taken in the article on
    ``First Amendment Opportunism'' that is discussed in Question 13. That
    article was not intended to provide advice for university
    administrators. The advice that I have given to university
    administrators, in my role as President of the Louis D. Brandeis
    Center, is reflected rather in the LDB Best Practices Guide for
    Combating Campus Anti-Semitism and Anti-Israelism. (see http://
    brandeiscenter.com/best-practices-guide-for-combating-campus-anti-
    semitism-and-anti-israelism/). Specifically, I have generally tried to
    avoid advising college administrators to ``balance'' the concerns
    described in this question. Rather, I have urged public university
    administrators to protect free speech to the full extent required under
    the First Amendment while also fully complying with all applicable
    anti-discrimination laws. If confirmed, I would advise administrators
    to comply with all applicable statutes and regulations and would direct
    them to OCR policies, such as the 2003 First Amendment Dear Colleague
    letter.

        Question 19. When does hate speech become harassment or
    discrimination? When does hate speech create a hostile environment so
    severe that OCR has jurisdiction to take enforcement action to address
    it?
        Answer. The line between hate speech protected by the First
    Amendment and actionable harassment often turns on the particular facts
    and circumstances. Recognizing and taking action against illegal
    harassment in a manner consistent with constitutional speech
    protections is one of the most difficult and important functions of
    OCR's enforcement activities. If confirmed, I will do my best to ensure
    that OCR consistently undertakes vigorous enforcement of civil rights
    statutes in a manner consistent with the U.S. Constitution.

        Question 20. In April of 98, you spoke at a Traditional Values
    Coalition news conference. You spoke in opposition to a bill sponsored
    by Senator Kennedy and Senator Specter to expand hate crimes
    legislation to cover violence based on sexual orientation, calling it a
    ``slippery slope to controlling our thoughts and motivations,'' and
    referenced a ``multicultural'' and ``homosexual'' agenda. Do you stand
    by the comments you made at the April 1998 Traditional Values Coalition
    news conference about hate crimes legislation? Do you support the
    Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act enacted
    into law in 2009?
        Answer. My views on such matters have evolved since 1998. I support
    full enforcement of Federal hate crimes laws.

        Question 21. During the same conference, you spoke strongly against
    President Clinton's National Hate Crimes Prevention Curriculum
    (``Healing the Hate'' curriculum.) You said it authorizes and
    legitimizes indoctrination. You read a particular quote that you
    objected to, which referenced ``prejudice and contempt, cloaked in the
    pretense of religion or political conviction.'' Do you stand by the
    comments you made at the April 1998 Traditional Values Coalition news
    conference? When does religious conviction or personal moral beliefs
    permit students to make discriminatory or hurtful comments about their
    peers based on their race, religion, gender or sexual orientation?
        Answer. As I indicated in response to the prior question, my views
    on such matters have evolved since 1998. I can think of no such
    exception to Federal civil rights laws.

        Question 22. Secretary DeVos revoked joint Department of Justice
    and Department of Education guidance clarifying the protections
    afforded to transgender students. In doing so, she said that
    protections for transgender students are ``best solved at the state and
    local level. Schools, communities, and families can find--and in many
    cases have found--solutions that protect all students.'' Do you agree
    that the scope of protections afforded to students under Title IX is an
    issue best resolved at the state and local level?
        Answer. Title IX is a Federal civil rights statute. For this
    reason, the scope of protections afforded to students under Title IX is
    best resolved at the Federal level. Title IX prohibitions on sex
    discrimination, including harassment based on sex stereotyping,
    continue to protect all students, including transgender students. It is
    also appropriate for state and local authorities to adopt additional
    measures to protect all students if they choose to do so.

        Question 23. Does Title IX provide transgender students the right
    to access facilities consistent with their gender-identity? Will you
    commit to ensuring that OCR consistently investigates complaints that
    allege transgender students have been denied access to facilities
    consistent with their gender-identity?
        Answer. Title IX prohibits discrimination based on sex. As
    previously indicated, Title IX prohibitions on sex discrimination,
    including harassment based on sex stereotyping, continue to protect all
    students, including transgender students. The question as to whether
    Title IX provides additional protections to transgender students beyond
    those described above, and the nature and scope of such protections, is
    currently being litigated. If Congress should pass a law providing OCR
    with the authority described in this question, I would commit, if
    confirmed, to ensuring that OCR fully and vigorously enforces it.
    Similarly, if confirmed, I would commit to ensuring that OCR
    investigates complaints consistently with any decision that the U.S.
    Supreme Court should issue on this matter.

        Question 24. Does Title IX require schools to take action in
    response to bullying or harassment on the basis of a students' sexual
    orientation or gender identity? If so, under what circumstances does
    OCR have jurisdiction over these types of complaints?
        Answer. Title IX obligates schools to respond to incidents of
    bullying and harassment based on sex so that all students are protected
    against sex discrimination. This protection applies to each and every
    student regardless of sexual orientation or gender identity. OCR has
    jurisdiction over complaints that any school receiving Federal
    education funding has subjected students to sex discrimination in the
    form of sex-based bullying or harassment.

        Question 25. Are there any regions where you believe OCR
    investigators do not have the authority to investigate complaints of 1)
    gender-identity discrimination or 2) sexual-orientation discrimination?
    If so, which regions?
        Answer. OCR has nationwide jurisdiction under Title IX to
    investigate complaints of sex discrimination against any student,
    regardless of gender identity or sexual orientation.

        Question 26. In your view, is it appropriate for Regional Directors
    or individual OCR investigators to determine whether Title IX prohibits
    sexual orientation or gender identity discrimination?
        Answer. No; the scope of Title IX's prohibition against
    discrimination based on sex is a legal determination that requires
    national consistency within OCR, and should not be determined by OCR's
    individual Regional Directors or individual investigators.

        Question 27. In interviews with my staff and in your confirmation
    hearing, you have repeatedly called the U.S. Department of Education's
    Civil Rights Data Collection (CRDC) ``valuable'' and ``important,''
    citing your experiences using the data when you worked at the
    Department during the George W. Bush administration. Do you commit to
    maintaining, at a minimum, the current categories of data collection?
        Answer. I support the data collection efforts represented in the
    CRDC. If confirmed, I will continue to consider ways in which the
    CRDC's usefulness can be improved upon in future data collection
    cycles.

        Question 28. In an August 25, 2017 letter, I wrote to Secretary
    DeVos about my support for several updated proposals in the most recent
    proposed revision to the CRDC, including the proposal to include school
    districts in Puerto Rico in the data collection as well as the proposal
    to add reporting on computer science classes and school internet
    access. What do you think of these proposals? Are there other new
    categories of data collection you would consider adding to the CRDC?
        Answer. I support the data collection efforts represented in the
    CRDC. If confirmed, I will continue to evaluate ways in which the
    CRDC's usefulness can be improved upon in future data collection
    cycles.

        Question 29. In the same letter, I strongly objected to the new
    proposal to define a student's sex as ``the concept of describing the
    biological traits that distinguish the male and female of a species''
    rather than the ``designation of female or male as indicated in a
    student's record.'' As I wrote in the letter, ``[b]y asking schools not
    to identify students based on their own school records, it appears the
    Department is requiring school employees conduct individual inquiries
    into students' past medical and social histories. This is an extremely
    invasive request and an unnecessary violation of students' privacy. All
    students, including transgender students, deserve to be treated with
    dignity and respect and their privacy protected by their teachers,
    schools, and the government.'' What is your view on this definition of
    sex as it applies to the CRDC?
        Answer. Without the benefit of being privy to the discussions
    occurring in OCR and the Department concerning reasons for inclusion of
    particular definitions used in the CRDC, I cannot provide an informed
    view of that definition; however, if confirmed, I look forward to
    considering all perspectives in determining ways in which the value of
    the CRDC as a data and enforcement tool can be strengthened.

        Question 30. Beginning with the 2009-2010 collection, school
    districts have been required to report information about restraint and
    seclusion of students at school to the Civil Rights Data Collection
    (CRDC). But according news reports, many school districts-including
    school districts with large student enrollments such as New York and
    Chicago-fail to report any data about restraint and seclusion. If
    confirmed, what specific steps will you take to bring school districts
    that do not report accurate information on the CRDC into compliance?
    Will you accept and investigate OCR complaints about schools that fail
    to report their restraint and seclusion data to the CRDC?
        Answer. I am aware through media reports of the problem of
    discrepancies in data reported through the CRDC. If confirmed, I will
    consider appropriate ways for continually strengthening the reliability
    of the data collected by the CRDC, including enforcement options as
    allowed by law.

        Question 31. The Brandeis Center under your leadership filed a
    joint amicus brief in Fisher v. University of Texas at Austin. The
    brief quotes Daniel Golden's argument that ``Asian-Americans are the
    new Jews'' and the ``most disenfranchised group'' in college
    admissions. Do you personally endorse this view? What does ``Asian-
    Americans are the new Jews'' mean to you?
        Answer. I personally believe that many Asian Americans face
    stereotypes, discrimination, and bias today, just as Jewish Americans
    have faced analogous challenges historically. This is unacceptable. I
    do not have a view on whether Asians are the ``most disenfranchised
    group.'' However, I do think that it is important to address
    discrimination against all groups.

        Question 32. The Supreme Court disagreed with the positions set out
    in this brief and ruled in favor of the University and important non-
    governmental partners of the Office of Civil Rights. Do you still agree
    with arguments made in the Brandeis Center's amicus brief in Fisher v.
    University of Texas (Fisher I)?
        Answer. I believe that OCR must apply the law as interpreted by the
    U.S. Supreme Court in its decisions including the Fisher case.

        Question 33. As Acting Assistant Secretary for Civil Rights in
    2004, you published a report encouraging schools to use race-neutral
    policies, characterizing affirmative action as a set of discriminatory
    and unlawful ``racial preferences'' that pose an obstacle ``to the
    achievement of a color-blind society.'' Do you agree with the Supreme
    Court that race-conscious admissions are constitutional and that
    affirmative action is necessary to achieve the compelling interest of
    diversity in education?
        Answer. Respectfully, I do not share that characterization of the
    2004 report. Indeed, in the letter introducing that report, I wrote
    that, ``The Supreme Court's decisions in the Michigan affirmative
    action litigation affirm that our shared commitment to diversity is
    both compelling and just when pursued within lawful parameters.'' If
    confirmed, I would apply the law in the manner set forth by the U.S.
    Supreme Court, including Supreme Court decisions dealing with the
    constitutionality of affirmative action and the compelling interest of
    diversity.

        Question 34. In a law review article you authored titled, ``The
    Right Frontier for Civil Rights Reform,'' you wrote that the use of
    race-conscious admissions ``appears to have caused demonstrable harms,
    not only to the qualified white and Asian applicants who have
    presumably been denied admission on the basis of their race, but also
    the black (or Hispanic) applicants who have been admitted on that
    basis.'' Do you stand by that position? If so, how will that influence
    your enforcement of Title VI as interpreted by the Bakke, Grutter, and
    Gratz decisions?
        Answer. The quoted language referred to the situation at one
    institution at a particular time in the past. I do not recall the
    particular incident well enough to have a view about it now; however,
    any views that I might have had about it in the past would not
    influence my enforcement of Title VI if I were confirmed.

        Question 35. Do you believe disparities in accessing or
    participating in athletics exist for women and girls of color? If so,
    do you think that OCR should take steps to address those disparities?
        Answer. I believe that disparities unfortunately exist for women
    and girls of color with respect to access to and participation in
    athletics. If confirmed, I will ensure that OCR remains committed to
    vigorous enforcement of Title IX and Title VI by investigating
    discrimination based on sex and race so that all students have access
    to their school's programs and activities, including athletics.

        Question 36. The Department adopted a three-part test in 1979 to
    assess schools' compliance with Title IX's athletics participation
    requirements. Do you believe this three-part test requires institutions
    to implement quotas or to cut male teams to come into compliance with
    Title IX?
        Answer. No.

        Question 37. Title IX prohibits discrimination on the basis of
    pregnancy, childbirth, false pregnancy, termination of pregnancy, and
    recovery therefrom. In order to comply with that prohibition, schools
    are required to excuse absences for pregnant students for as long as
    medically necessary, to allow students to make up work missed due to
    pregnancy or related conditions, and to provide accommodations that are
    reasonable and responsive to pregnant students' needs. Will you enforce
    Title IX protections for pregnant and parenting students, as well as
    for students who terminate their pregnancies?
        Answer. If confirmed, I will enforce Title IX protections against
    sex discrimination for all students, including pregnant and parenting
    students.

        Question 38. The Supreme Court has ruled in Brown v. Board of
    Education of Topeka that separating students based on race is
    unconstitutional, creating inherent inequities. You have supported
    policies that allow for separating schools and classrooms based on the
    sex of students. In your opinion, how can separate schools for boys and
    girls offer equal opportunity when separate schools based on race do
    not?
        Answer. If confirmed, I will support policies that implement
    applicable law and regulation. Current Department regulations permit
    single-sex education to occur within certain parameters, and I will
    enforce those regulations.
        Brown v. Board of Education was a decision of fundamental
    importance. On matters pertaining to single-sex education, I would if
    confirmed refer specifically to the principles established by Justice
    Ruth Bader Ginsberg in United States v. Virginia (the ``VMI'' case) and
    reflected in OCR regulations.

        Question 39. Is it permissible for schools to offer classes in a
    coeducational setting and a single-sex setting for one sex but not the
    other?
        Answer. Current Department regulations permit schools to provide
    single-sex classes or extracurricular activities only under certain
    circumstances as set forth in 34 C.F.R. 106.34(b). To comply with that
    regulation, a school may be required to provide a substantially equal
    single-sex class or extracurricular activity for the excluded sex.

        Question 40. Women and girls, particularly girls and women of
    color, are severely under-represented in fields that are non-
    traditional for their gender, such as science, technology, engineering,
    and math (STEM). Do you believe that OCR has a role in ensuring that
    discrimination does not prevent girls and women from entering or being
    pushed out of fields that are nontraditional for their gender? If so,
    what is that role and what steps would you take to determine what needs
    to be done to eliminate such discrimination?
        Answer. OCR has a critical role in remedying sex-based
    discrimination for all students, including women and girls in the
    context of discrimination that prevents women and girls from
    participating in STEM education. If confirmed, I would ensure that OCR
    vigorously enforces Title IX protections for women and girls in all
    educational programs and activities.

        Question 41. Do you believe that direct cross-examination of a
    complainant by a respondent is ever appropriate in Title IX hearings
    and investigations? If yes, when is it appropriate? Are there times
    when it is required?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department, but if
    confirmed, I look forward to working with the Secretary on this issue.

        Question 42. Do you believe that mediation is appropriate in cases
    of sexual violence and sexual assault? Do you believe that informal
    resolutions are appropriate in cases of sexual violence and sexual
    assault?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department, but if
    confirmed, I look forward to working with the Secretary on this issue.

        Question 43. Do you believe that schools should wait or not wait
    for the conclusion of a criminal investigation or criminal proceeding
    to begin their own Title IX investigation (with allowances for
    temporarily delaying fact-finding while police are gathering evidence)?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department, but if
    confirmed, I look forward to working with the Secretary on this issue.

        Question 44. Do you believe that it is ever appropriate for
    respondents to be allowed the right to appeal case outcomes but not
    complainants?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department, but if
    confirmed, I look forward to working with the Secretary on this issue.

        Question 45. Can schools fulfill their Title IX obligations if
    their process or procedure for handling a case of sexual violence or
    assault is different from other dispute resolution processes?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department, but if
    confirmed, I look forward to working with the Secretary on this issue.

        Question 46. If you are confirmed, will the Office for Civil Rights
    enforce the ADA's community integration mandate, pursuant to the
    Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999),
    which prohibits the unnecessary segregation of people with
    disabilities, including students? If not, why not?
        Answer. It's my understanding that the Department of Justice and
    the Department of Health and Human Services' Office for Civil Rights
    have primary responsibility for implementing the Supreme Court's
    decision in Olmstead to ensure that persons with disabilities receive
    services in the most integrated setting appropriate to their needs. If
    confirmed to lead OCR, I will as appropriate work with the Department
    of Education's Office of Special Education and Rehabilitative Services
    as well as DOJ and HHS to ensure that OCR abides by all applicable
    Supreme Court precedent.

        Question 47. The Department of Education took the position in K.M.
    v. Tustin Unified School District (725 F.3d 1088 (9th Cir. 2013)) that
    the Individuals with Disabilities Education Act (IDEA) and Title II of
    the ADA impose different requirements on schools providing
    communication services to students with disabilities. Do you agree with
    this position? If not, why not?
        Answer. It would not be appropriate of me to opine on particular
    actions undertaken by the previous Administration. If confirmed, I will
    lead OCR in such a manner as to fully and effectively enforce all
    applicable provisions of Title II of the ADA (over which OCR has
    jurisdiction), and work with the Department's Office of Special
    Education and Rehabilitative Services with respect to enforcement of
    the IDEA.

        Question 48. In 2013 the Department of Justice sent a letter to the
    State of Wisconsin stating that the state's school choice program,
    which is funded and administered by the state, was subject to Title II
    of the ADA, which prohibits disability discrimination by state and
    local governments. The letter states that a student who is eligible for
    the school choice program ``is entitled to the same opportunity as her
    non-disabled peers to attend the voucher school of her choice and to
    meaningfully access the general education curriculum offered by that
    school.'' Do you agree with this interpretation of the ADA? If not, why
    not?
        Answer. It would not be appropriate of me to opine on particular
    actions undertaken by the previous Administration. If confirmed, I will
    lead OCR in such a manner as to fully and effectively enforce all
    applicable provisions of Title II of the ADA.

        Question 49. Under your leadership, will the Office for Civil
    Rights continue to process complaints regarding whether private schools
    participating in voucher programs violate a student's rights under the
    ADA or Section 504?
        Answer. If confirmed, I will lead OCR in such a manner as to fully
    and effectively enforce the provisions of Title II of the ADA and
    Section 504 of the Rehabilitation Act of 1973.

        Question 50. The Departments of Education and Justice issued joint
    guidance in 2014 to explain schools' obligations under Title VI to
    ensure that their enrollment practices do not discriminate against
    students on the basis of their ``actual or perceived citizenship or
    immigration status.'' This guidance applies the Supreme Court's ruling
    in Plyler v. Doe, 457 U.S. 202 (1982). Was this guidance appropriate?
    Do you commit to maintain this 2014 guidance? If not, why not?
        Answer. It is my understanding that the Department is under
    Presidential Executive Order to systematically review all regulations
    and guidance, and it would be premature of me to weigh in on that
    process without being privy to the discussions occurring in the
    Department in that regard. If confirmed, I look forward to engaging in
    the regulatory review process as it pertains to the 2014 Dear Colleague
    Letter on school enrollment procedures that addresses compliance with
    Federal civil rights laws and U.S. Supreme Court precedent.

        Question 51. The 2015 joint guidance issued by the Departments of
    Education and Justice clarifies schools' obligations under Title VI to
    ensure that English Language Learner (ELL) students have equitable
    access to educational opportunities. Further, the guidance promotes
    access to meaningful communication with schools for limited English
    proficiency (LEP) parents. Was this guidance appropriate? Do you commit
    to maintain this 2015 guidance? If not, why not?
        Answer. It is my understanding that the Department is under
    Presidential Executive Order to systematically review all regulations
    and guidance, and it would be premature of me to weigh in on that
    process without being privy to the discussions occurring in the
    Department in that regard. If confirmed, I look forward to engaging in
    the regulatory review process as it pertains to the 2015 Dear Colleague
    Letter on ELL and LEP issues.

        Question 52. Earlier this year President Trump rescinded Deferred
    Action for Childhood Arrivals (DACA), effectively revoking Dreamers'
    work permit eligibility and protection from deportation. What will OCR
    do under your leadership to protect access to education for Dreamers
    and undocumented students?
        Answer. If confirmed, I will ensure that OCR vigorously enforces
    Title VI of the Civil Rights Act of 1964 to protect every student's
    right to access his or her education free from discrimination based on
    race, color, or national origin, consistent with U.S. Supreme Court
    precedent, such as Plyler v. Doe. Plyler v. Doe established every
    child's right to receive a public education regardless of immigration
    status.

        Question 53. If confirmed, how will OCR under your leadership treat
    schools that offer sanctuary protections to undocumented students and
    teachers?
        Answer. Under my leadership if I am confirmed, OCR will hold all
    schools that receive Federal funds accountable for compliance with the
    civil rights statutes under OCR's jurisdiction.

        Question 54. Secretary DeVos has denounced the longstanding use of
    Dear Colleague Letters, and in a September 7th speech, she declared
    ``the era of rule by letter is over.'' In your role as Acting Assistant
    Secretary for OCR during the George W. Bush administration, you signed
    five Dear Colleague letters clarifying schools' Title VI and Title IX
    obligations. What is your view on the use of Dear Colleague Letters? Do
    you agree with Secretary DeVos' position on the use of subregulatory
    guidance? When is the use of subregulatory guidance appropriate?
        Answer. Dear Colleague Letters and other forms of subregulatory
    guidance do not have the force or effect of law, but can provide useful
    clarifications of existing law and regulation. I agree with the
    Secretary's position as to subregulatory guidance that has been treated
    as legally binding without complying with the Administrative Procedures
    Act.

        Question 55. Do you intend to maintain all current Dear Colleague
    letters unless there is an intervening change in the law or
    regulations? If not, what factors would lead you to revoke current
    guidance on a particular issue?
        Answer. It is my understanding that the Department is under
    Presidential Executive Order to systematically review all regulations
    and guidance, and it would be premature of me to weigh in on that
    process without being privy to the discussions occurring in the
    Department in that regard, including factors to be considered in
    recommending whether particular guidance should be modified or revoked.

        Question 56. Do you commit to inform the members of this Committee
    if you intend to undertake any review or revision of any existing
    guidance?
        Answer. My understanding is that the Department is thoroughly
    reviewing all guidance pursuant to Executive Order 13777. If confirmed,
    I will work, as appropriate within my role, with Department officials,
    including the Department's Office of Legislation and congressional
    Affairs, on these matters.

        Question 57. What is your opinion about whether minority members of
    the HELP Committee have the authority to conduct oversight of the U.S.
    Department of Education?
        Answer. I appreciate and respect the oversight responsibilities of
    Members of Congress and this Committee. If confirmed, I will work with
    the Office of Legislation and congressional Affairs to be as responsive
    as possible to all congressional inquiries in a timely and thoughtful
    way, regardless of party.

        Question 58. If confirmed, do you agree to provide briefings to
    members of the HELP Committee, including minority members, if
    requested?
        Answer. If confirmed, I will work with my colleagues in the Office
    of Legislation and congressional Affairs to ensure any briefing
    requests from members of the HELP Committee regardless of party or
    position are responded to in a timely and appropriate manner, whenever
    participation by the Office for Civil Rights is requested.

        Question 59. If confirmed, do you commit to answer promptly and
    completely any letters or requests for information from individual
    members of the HELP Committee including request for Department of
    Education documents, communications, or other forms of data?
        Answer. If confirmed, I work with the Office of Legislation and
    congressional Affairs, as appropriate, to be as responsive as possible
    to all congressional inquiries and requests for information in a timely
    and thoughtful way.
                                senator sanders
        Question 1. President Trump's Budget Proposal for fiscal year 2018,
    which Secretary DeVos supports, suggested cutting the Office for Civil
    Rights (OCR) budget by 7 percent, and reducing the number of full-time
    equivalent employees by 46. As you may have heard, as part of the
    effort to cut staff, the Department of Education has received approval
    to buy out 45 staff from OCR, out of the 255 voluntary offers made
    November 1 to employees to separate or retire early. What will you do
    to ensure that OCR has the full-time, skilled staff it needs to
    properly conduct investigations, provide technical assistance to
    schools and school districts that request assistance in preventing and
    addressing discrimination, and issue guidance and regulations to
    clarify school officials' responsibilities?
        Answer. If confirmed, I will advocate for OCR having the budget and
    resources necessary to fulfill its critical mission, and will manage
    OCR's operations in such a way that OCR stewards its congressional
    appropriations to ensure that OCR's role enforcing civil rights is
    conducted vigorously and efficiently.

        Question 2. The Assistant Secretary for Civil Rights oversees OCR,
    to ``ensure equal access to education and to promote educational
    excellence throughout the Nation through vigorous enforcement of civil
    rights.'' In addition, OCR enforces a number of Federal civil rights
    laws that prohibit discrimination, including Title VI of the Civil
    Rights Act of 1964, the Americans with Disabilities Act, Section 504 of
    the Rehabilitation Act, Title IX, and the Age Discrimination Act. OCR
    also investigates and resolves complaints of discrimination on the
    basis of race, sex, disability, age, and national origin. Do you agree
    with the U.S. Supreme Court that colleges and universities have a
    compelling interest in promoting racial diversity in higher education?
    Do you think OCR should play a role in enforcing the principles of
    diversity and inclusion? How, in your view, is this best accomplished?
        Answer. If confirmed, I will conduct OCR enforcement activities,
    including investigation of complaints over whether colleges and
    universities are legally promoting racial diversity, by rigorously
    applying Title VI and U.S. Supreme Court precedent.

        Question 3. On June 25, 2002, when you were Deputy General
    Assistant Secretary for Fair Housing and Equal Opportunity at HUD, you
    testified before a subcommittee of the House Committee on Financial
    Services on the role that lending discrimination may play in the
    disparity in homeownership rates between whites and some people of
    color. In congressional testimony you referenced a HUD-commissioned
    study, titled All Other Things Being Equal: A Paired Testing Study of
    Mortgage Lending Institutions, that examined how lenders treated blacks
    and Hispanics at the pre-application stage, when they inquired about
    residential mortgage financing. You mentioned that the study revealed
    that while the majority of mortgage lending transactions do not involve
    discrimination, blacks and Hispanics, in the markets studied, tended to
    receive less information, less assistance, and worse terms. You said
    then that HUD was ``stepping up its efforts to combat lending
    discrimination.'' As Assistant Secretary for Civil Rights, would you
    take a similar approach to enforce a number of Federal civil rights
    laws that prohibit discrimination, including Title VI of the Civil
    Rights Act of 1964, the Americans with Disabilities Act, Section 504 of
    the Rehabilitation Act, Title IX, and the Age Discrimination Act? If
    confirmed, what specific policies will you lead to carry out Federal
    anti-discrimination laws?
        Answer. Thank you for highlighting my work in this area. I
    certainly was appalled by this evidence of discrimination against
    African American and Hispanic lenders, and I was pleased to play a role
    in enforcement efforts developed to combat it. Yes, I would be
    similarly concerned about discriminatory treatment of minorities,
    women, or the disabled under the statutes listed in this question. If
    confirmed, I will follow the existing policies of the Office for Civil
    Rights unless or until such time as they were changed, rescinded, or
    supplemented under appropriate procedures.

        Question 4. It is clear that schools violate civil rights laws when
    they intentionally discriminate against students because of their race,
    national origin, sex, or other protected class. It is also true that
    schools may be liable for unintentional discrimination against students
    when they adopt policies that seem neutral, but have a different impact
    on students because of their race or gender. This is called ``disparate
    impact,'' and while complicated to prove and controversial, is a key
    part of OCR's jurisdiction and ability to enforce the full scope of
    Federal civil rights laws. As Assistant Secretary for Civil Rights,
    what will you do to enforce the doctrine of disparate impact that
    protects students against discrimination, and allows for a remedy
    similar to when an employment practice that may be neutral on its face
    has an unjustified adverse effect on members of a protected class?
        Answer. If confirmed, I will ensure that OCR enforces the civil
    rights statutes under its jurisdiction vigorously within the bounds of
    current law and regulation. Current regulations under Title VI of the
    Civil Rights Act of 1964 [at 34 C.F.R. 100.3(b)(2)(3)] prohibit schools
    that receive Federal funds from adopting policies that have the effect
    of subjecting students to discrimination based on race.
                                 senator casey
        Question 1. In 2014, the Department of Education's Office of Civil
    Rights published a list of colleges and universities with open Title IX
    complaints regarding campus sexual harassment and assault. In previous
    Administrations, including during your prior tenure, this information
    was not made publicly available. Releasing this information shined a
    light on how pervasive sexual violence is on our college campuses. It
    increased scrutiny, and encouraged many colleges and universities to
    take a look at their policies to ensure all students were able to
    receive an education in a safe environment. As Louis Brandeis said,
    ``sunlight is said to be the best of disinfectants.''
            a. You testified that you could not commit to continuing to
            make this data publicly available because you felt you needed
            to evaluate the best approach. Will you commit to sharing
            information about your evaluation with this committee,
            including the process, stakeholders, and research you use?
            Answer. If confirmed, I will work with my colleagues in the
            Office of Legislation and congressional Affairs to be
            responsive to any requests for information from members of the
            HELP Committee or other congressional offices.

            b. In addition, OCR is responsible for investigating complaints
            regarding discrimination on the basis of disability, race and
            national origin, religion, and age. Would you share your views
            on expanding transparency by making information about open
            investigations on the basis of these claims publicly available?
            Answer. If confirmed, I will work with my colleagues in the
            Office of Legislation and congressional Affairs to be
            responsive to any requests for information from members of the
            HELP Committee or other congressional offices.

            c. OCR does not publish all data, such as the length of time it
            takes to complete an investigation. However, when asked, they
            have provided such information to Congress. This information is
            critical to helping us to perform our oversight
            responsibilities as well as ensure the Department has the
            resources needed to complete investigations in a timely manner.
            If confirmed, would you commit that OCR would continue to
            provide this data to Congress?
            Answer. If confirmed, I will work with my colleagues in the
            Office of Legislation and congressional Affairs to be
            responsive to any requests for information from members of the
            HELP Committee or other congressional offices.

        Question 2. You have been the director of a research center and you
    have been both a consumer and producer of data upon which policy is
    based. One of the great values of the Office of Civil Rights has been
    the publication and availability to the public, of the Civil Rights
    Data Collection. The data set has allowed researchers, state and local
    policymakers, school administrators, and parents and family members to
    examine the practices of schools and then use the information to help
    shape policies at the building level all the way up to the state level.
    The Civil Rights Data Collection allows us to see if students in poor
    districts are gaining access to higher level science and math classes,
    to Advanced Placement curriculum, and to such challenging programs as
    the International Baccalaureate program. It allows us to see when and
    which children schools suspend or expel. It helped us see the
    significant problem with preschool expulsions so that local school
    districts and states could address those concerns.

            a. If confirmed, will you continue the collection of the Civil
            Rights Data Collection and continue to make it readily
            available to states, schools, and the public?
            Answer. I support the data collection efforts represented in
            the CRDC. If confirmed, I will continue to consider ways in
            which the CRDC's usefulness can be improved upon in future data
            collection cycles.

            b. As you probably know, while the data set is extremely
            valuable for examining the outcomes of schools and districts,
            some local school districts do not report data in areas such as
            incidents of bullying. Will you continue to assist states and
            school districts to increase the validity and accuracy of their
            reporting of the data?
            Answer. If confirmed, I will consider ways for continually
            strengthening the reliability of the data collected by the
            CRDC, including improving or expanding assistance available to
            states and school districts to help them comply with their
            reporting obligations.

        Question 3. The most recent Civil Rights Data Collection had over
    170,000 reported incidents of restraining or secluding students during
    the 2013-2014 school year. Restraints and seclusions can lead to
    significant emotional trauma as well as physical harm and, in the worst
    cases, death of a student. A 2014 report from this Committee reported
    incidents of families who had not known about their children being
    restrained or secluded in school. In some cases, families requested
    that schools stop these practices and they were denied that request.
    One family even reported they had to move in order to stop the use of
    restraint and seclusion with their daughter. In May 2012 the Department
    issued a resource document related to the use of restraint and
    seclusion in schools that emphasized prevention and use of those
    techniques only in emergency situations. That year the Civil Rights
    Data Collection reported just over 60,000 incidents of restraint and
    seclusion in schools. The use has almost tripled since that time and
    the Department has not issue formal guidance or regulations. Will you
    commit to continue the collection of data on incidents of the use of
    restraint and seclusion in schools so that school leaders and the
    families and communities they serve will know about these incidents and
    efforts to eliminate their use?
        Answer. As I have stated I support the data collection efforts
    represented in the CRDC, and if confirmed I will advocate for the
    Department to continue to collect and publish this important data.
    However, it would not be appropriate for me to commit to any particular
    data element within this collection, out of deference to the Secretary.
    If confirmed, I look forward to working with the Secretary and you on
    this issue.

        Question 4. According to data from the Office for Civil Rights
    Civil Rights Data Collection, there are significant disparities in
    discipline for students of color and their white peers in both
    preschool and elementary and secondary education. Indeed, during the
    2013-14 school year, black K-12 students were 3.8 times more likely to
    receive an out-of-school suspension compared to their white peers and
    black preschool students were 3.6 times more likely to receive a
    suspension. This is an alarming gap. In your view, what is the role of
    Office of Civil Rights in addressing these disparities?
        Answer. No student should be subjected to discipline based on his
    or her race, and an important part of OCR's mission is to conduct
    enforcement activities that address instances of racial discrimination,
    including in the way in which a student is disciplined.
        Question 5. Bullying is a major epidemic in our nation's schools
    and a serious problem facing children. According to data released in
    2016 from the National Center for Education statistics, more than 20
    percent of students report being bullied. Research shows that bullying
    and harassment have adverse long-term consequences, including decreased
    concentration at school, increased school absenteeism, damage to the
    victim's self-esteem, and increased social anxiety. LGBTQ students are
    particularly vulnerable to bullying and harassment. Title IX prohibits
    gender-based harassment, which includes ``harassing conduct based on a
    student's failure to conform to sex stereotypes.'' Far too often, LGBTQ
    students are the target of gender-based harassment. How do you view the
    Office of Civil Rights' role in ensuring that LGBTQ students are free
    from harassment, including gender-based harassment?
        Answer. A critical aspect of OCR's mission is to conduct
    enforcement activities designed to combat bullying in the form of sex-
    based harassment. Under my leadership, if confirmed, OCR will seek to
    protect every student regardless of his or her sexual orientation or
    gender identity, from illegal sex-based discrimination.

                                 senator bennet
        Question 1. How will you enforce Plyler v. Doe to ensure that the
    status of an undocumented or their guardian does not affect their right
    to receive a public education?
        Answer. If confirmed, I will ensure that OCR vigorously enforces
    Title VI of the Civil Rights Act of 1964 to protect every student's
    right to access his or her education free from discrimination based on
    race, ethnicity, or national origin, consistent with U.S. Supreme Court
    precedent such as Plyler v. Doe, which established every child's right
    to receive a public education regardless of immigration status.
    Enforcement efforts in this regard may include investigating incoming
    complaints, initiating compliance reviews or directed investigations,
    and providing technical assistance to schools, students, and parents.

        Question 2. Will you evaluate residency requirements to ensure that
    they do not bar or discourage undocumented students from enrolling in
    school?
        Answer. Under my leadership, if confirmed, OCR will examine school
    policies that may operate to violate the rights of students under Title
    VI to full and equal access to education free from barriers based on
    race, color, or national origin.

        Question 3. How will you ensure that districts do not request
    information that they will use to deny access to schools on the basis
    of race, color, or national origin?
        Answer. Under my leadership, if confirmed, OCR will examine school
    policies that may operate to violate the rights of students under Title
    VI to full and equal access to education free from barriers based on
    race, color, or national origin.

        Question 4. How will your office enforce Lau v. Nichols to ensure
    that schools are meaningfully communicating with guardians who have
    limited English proficiency?
        Answer. Under the U.S. Supreme Court's decision in Lau v. Nichols,
    schools' compliance with their legal obligations under Title VI of the
    Civil Rights Act of 1964 includes taking affirmative steps to ensure
    that students with limited English proficiency can meaningfully
    participate in their educational programs and services. If confirmed, I
    will ensure that OCR continues to undertake enforcement activities so
    that schools comply with their obligations to English language learners
    and LEP students and parents, including effective communications with
    LEP parents and guardians.

        Question 5. What steps will your office take to ensure that English
    Learner students can participate meaningfully and equally in curricular
    and extracurricular programs?
        Answer. Under the U.S. Supreme Court's decision in Lau v. Nichols,
    schools' compliance with their legal obligations under Title VI of the
    Civil Rights Act of 1964 includes taking affirmative steps to ensure
    that students with limited English proficiency can meaningfully
    participate in their educational programs and services. If confirmed, I
    will ensure that OCR continues to undertake enforcement activities so
    that schools comply with their obligations to English language learners
    and LEP students and parents, including participation in the school's
    programs and activities

        Question 6. How will you enforce Lau v. Nichols to ensure that
    schools are avoiding unnecessary segregation of English Learner
    students?
        Answer. Under the U.S. Supreme Court's decision in Lau v. Nichols,
    schools' compliance with their legal obligations under Title VI of the
    Civil Rights Act of 1964 includes taking affirmative steps to ensure
    that students with limited English proficiency can meaningfully
    participate in their educational programs and services. If confirmed, I
    will ensure that OCR continues to undertake enforcement activities so
    that schools comply with their obligations in a manner that avoids
    unnecessary isolation or segregation of English language learners.
                               senator whitehouse
        Question 1. Many believe that sexual harassment and violence are
    pervasive problems in schools, at every level, that interfere with
    students' access to education. Do you agree with this characterization?
        Answer. Yes.

        Question 2. One obstacle to obtaining justice for sexual assault
    survivors can be the views of local law enforcement agencies or agents.
    When law enforcement officers have views that include beliefs like:
    false rape reports are common, women ``ask for it'', or that men can't
    be raped-beliefs that are demonstrably false, this can negatively
    affect the course of an investigation. Do you agree that these types of
    perspectives can be obstacles for sexual assault victims when working
    with law enforcement to obtain justice?
        Answer. Yes.

            a. Are you aware of the Trauma Informed Sexual Assault
            Training? If so, what applicability would it have to your work
            if confirmed? If not, will you commit to reviewing it before
            you are confirmed?
            Answer. I am familiar with commonly understood and applied
            principles of trauma-informed approaches to sexual assault
            training of investigators and adjudicators. If confirmed, I
            will review and consider all aspects of issues surrounding the
            critically important problem of combating sexual assault in
            schools, including the way in which trauma-informed training is
            incorporated into campus sexual assault investigations.

        Question 3. Under your leadership, how would the Office of Civil
    Rights proceed with sexual assault and misconduct investigations?
        Answer. If confirmed, OCR under my leadership will continue to
    vigorously enforce Title IX's statutory and regulatory prohibitions on
    sex discrimination, including holding schools accountable for
    responding promptly and equitably to reports of sexual harassment and
    assault.

        Question 4. Do you agree with the account of the Acting Assistant
    Secretary of campus sexual assault that ``Rather, the accusations-90
    percent of them-fall into the category of `we were both drunk,' `we
    broke up, and 6 months later I found myself under a Title IX
    investigation because she just decided that our last sleeping together
    was not quite right,'''? What are your views of this description?
        Answer. I disagree with the characterizations expressed in that
    description and consider sexual assault on campus to be a serious
    problem across our country. If confirmed, OCR under my leadership will
    continue to vigorously enforce Title IX's statutory and regulatory
    prohibitions on sex discrimination, including holding schools
    accountable for responding promptly and equitably to reports of sexual
    harassment and assault.

        Question 5. In your view would it be appropriate for a school to
    use a preponderance of the evidence standard in its disciplinary
    proceedings for academic violations, vandalism, and drug use, but used
    a clear and convincing standard for sexual assault investigations?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department. If
    confirmed, I look forward to working with the Secretary on this issue.

        Question 6. Do you believe an individual can choose their sexual
    orientation or gender identity? Do you believe LGBT individuals receive
    ``preferred treatment'' under Federal hate crimes law?
        Answer. No, that is not my personal belief. If confirmed to this
    position, I would evaluate, consider, and help develop policy based not
    on my personal beliefs, but on sound legal analysis and consideration
    of the policy perspectives expressed by stakeholders, the public,
    Members of Congress, and other Department officials. If confirmed, I
    would work to ensure that the civil rights laws over which OCR has
    jurisdiction are vigorously enforced with the goal of protecting every
    student in our nation's schools from the evils of illegal
    discrimination.

        Question 7. What assurances can you provide me that you will work
    to protect the rights of LGBT students in school settings if you are
    confirmed?
        Answer. If confirmed, I would work to ensure that the civil rights
    laws over which OCR has jurisdiction are vigorously enforced with the
    goal of protecting every student in our nation's schools, including
    LGBT students, from the evils of illegal discrimination.

        Question 8. You have written that racial inequality and gaps
    between black and white Americans can be significantly attributed to
    black ``cultural dysfunction'' and ``family structure,'' rather than to
    a history of systemic discrimination. Is this still your view?
        Answer. No. For that matter, I do not recall having endorsed those
    views in the past either, although I remember describing the positions
    and attributing them to others.

        Question 9. Disparate impact discrimination results when facially
    neutral policies adversely affect members of a protected class more
    than other students and aren't necessary for meeting any important
    educational goal-for example, a school policy prohibiting students from
    having braided hair can have a disparate impact on black students and
    lead to black students being singled out for discipline as a result.
    You have been an outspoken critic of disparate impact liability,
    claiming that remedies for disparate impact discrimination likely
    violate the Fourteenth Amendment's Equal Protection Clause. Do you
    believe disparate impact discrimination is a form of discrimination
    reached by the laws enforced by OCR?
        Answer. Yes. As I have indicated above, disparate impact doctrine
    plays an important role in civil rights enforcement.

        Question 10. Do you commit to not using non-commercial airplane or
    helicopter travel paid for at taxpayer expense?
        Answer. Yes.
                                senator baldwin
        Question 1. As the Department continues to examine its Title IX
    policy and practice with regard to campus sexual assault, it is
    critical that the perspectives of survivors are taken into account.
    Will you commit to inclusion of those voices in your policy
    decisionmaking, including meeting with individual survivors and the
    organizations representing their interests?
        Answer. Meeting with and carefully considering the views,
    perspectives, and experiences of sexual assault survivors is an
    important component of policymaking. If confirmed, I will ensure that
    OCR follows that approach on the critical issue of how best to enforce
    Title IX's prohibition against sex-based discrimination that occurs in
    the form of sexual harassment and assault.

        Question 2. I am concerned that the Department's February
    rescission of guidance to schools about their obligations to provide a
    safe and equitable educational environment for transgender students has
    left school districts without a clear understanding of what they should
    be doing--the very purpose of guidance from the Department. On June 6,
    the Office of Civil Rights issued instructions to its regional
    directors about processing complaints involving transgender students.
    This document states that OCR may not rely on the policy set forth in
    the prior guidance, but ``should rely on Title IX and its implementing
    regulations, as interpreted in decisions of Federal courts and OCR
    guidance documents that remain in effect.''
        My home State of Wisconsin is one of the states in which a Federal
    appeals court has ruled that Title IX prohibits school policies that
    treat students differently because they are transgender, including
    policies that exclude them from using restrooms and other facilities
    consistent with their gender identities. If you are confirmed, under
    your leadership would OCR review and pursue a Wisconsin transgender
    student's Title IX complaint consistent with that interpretation of the
    law? If you are confirmed, under your leadership would OCR advise a
    Wisconsin school district about its obligations under Title IX with
    regard to transgender students consistent with that interpretation of
    the law?
        Answer. I am aware of the Secretary's decision to rescind the 2016
    Dear Colleague Letter on Transgender Students. It would be
    inappropriate for me to opine about the Department's legal positions
    when I do not work for the Department. If confirmed, I will work with
    the Department's lawyers and the Secretary to address this important
    topic.

        Question 3. In withdrawing that guidance regarding transgender
    students, the Department cited ``significant litigation'' involving
    this issue and cited to a single district court ruling contrary to the
    guidance. Since that time, a number of Federal courts, including the
    U.S. Court of Appeals for the Seventh Circuit, has ruled consistently
    with the Department's prior position.
        Many issues related to civil rights laws, including those OCR is
    charged with enforcing, have not and may never be specifically
    addressed by the U.S. Supreme Court. Do you believe OCR should follow
    the law as interpreted by the lower Federal courts? If the Supreme
    Court has not addressed an issue, would you, if confirmed, direct OCR
    to interpret a law under its jurisdiction in a manner consistent with a
    majority of Federal courts that have addressed that issue?
        Answer. It would be inappropriate for me to opine about the
    Department's legal positions when I do not work for the Department, but
    if confirmed, I will work with the Department's lawyers and the
    Secretary to address this important topic.

        Question 4. During your tenure at the Brandeis Center, the
    organization filed a number of Title VI discrimination claims with OCR
    alleging that student organizing and academic programming regarding
    Israel and the Palestinian Territories created a hostile environment
    for Jewish students at several colleges and universities. While these
    claims were dismissed by the Office, you subsequently wrote in a
    September 2013 op-ed in the Jerusalem Post that filing them had ``the
    effect we had set out to achieve'' by exposing universities to bad
    publicity, making it harder for certain student groups to recruit new
    members, and harming the future employment prospects of certain
    students.
        Given the perspective you expressed in that op-ed and the
    underlying work of the Brandeis Center under your leadership, if
    confirmed, how would you address any actual or apparent conflict of
    interest in the handling of similar Title VI claims filed with OCR?
    Will you commit to recusing yourself from consideration of any similar
    claim of discrimination under Title VI?
        Answer. I do not believe that this description of the Brandeis
    Center's work is factually accurate. Having said that, if confirmed, I
    will abide by the ethics recommendations and decisions made by ethics
    counsel.
                                 senator murphy
        Question. The Civil Rights Data Collection is a unique and
    invaluable source of information for researchers and practitioners on
    ``school-pushout'' indicators like suspensions, expulsions, and
    referrals to law enforcement. If confirmed, what steps would you take
    to bring school districts into compliance when they fail to report data
    as required?
        Answer. If confirmed, I will consider ways for continually
    strengthening the reliability of the data collected by the CRDC,
    including enforcement options as allowed by law for school districts
    that do not comply with their reporting obligations.
                                 senator warren
        Question 1. In your legal opinion, what statutes and laws does the
    Office of Civil Rights (OCR) have the ability to enforce? What is
    within the office's jurisdiction?
        Answer. OCR has enforcement jurisdiction under: Title VI of the
    Civil Rights Act of 1964 (prohibiting race, color, or national origin
    discrimination in all programs or activities receiving Federal funds);
    Title IX of the Education Amendments of 1972 (prohibiting sex
    discrimination in all education programs or activities receiving
    Federal funds); Section 504 of the Rehabilitation Act of 1973
    (prohibiting discrimination based on disability in programs, services,
    and activities receiving Federal funds); the Age Discrimination Act of
    1975 (prohibiting age discrimination in all programs or activities
    receiving Federal funds); Title II of the Americans with Disabilities
    Act of 1990 (prohibiting disability discrimination in state and local
    government services regardless of receipt of Federal funds); and the
    Boy Scouts of America Equal Access Act of 2001 (prohibiting public
    elementary and secondary schools from denying equal access to school
    facilities to the Boy Scouts of America and certain other youth
    groups). In undertaking enforcement activities pursuant to its
    jurisdiction under the foregoing statutes, OCR must conduct its
    enforcement and apply its laws, regulations, and policies in a manner
    consistent with the U.S. Constitution and all applicable U.S. Supreme
    Court precedent.

        Question 2. In your legal opinion, what civil rights statutes or
    laws, which may be violated in a school setting in a manner that harms
    students, fall outside of OCR's jurisdiction?
        Answer. OCR's jurisdiction under the civil rights statutes
    prohibiting discrimination based on race, color, national origin, sex,
    disability, age, and equal access for the Boy Scouts (and similar youth
    groups) provides the basis for OCR's authority to undertake enforcement
    activities.

        Question 3. In your legal opinion, what type of evidence is needed
    for OCR to initiate an investigation?
        Answer. The type of evidence needed for OCR to initiate an
    investigation depends on the facts and circumstances of the particular
    potential investigation, but generally, OCR initiates investigations
    (whether directed investigations or compliance reviews) where facts
    indicate concern that a recipient of Federal funds may be in violation
    of one or more of the civil rights statutes OCR is charged with
    enforcing.

        Question 4. During your nomination hearing, you were ``unsure'' if
    ensuring undocumented students had access to education fell under OCR's
    jurisdiction. What is OCR's role and obligation with regard to
    complying with and enforcing the Supreme Court's decision in Plyler v.
    Doe, concluding that the Equal Protection Clause of the Fourteenth
    Amendment protects of undocumented students from discrimination?
        Answer. OCR enforces Title VI of the Civil Rights Act of 1964 to
    protect every student's right to access his or her education free from
    discrimination based on race, color, or national origin, consistent
    with U.S. Supreme Court precedent, such as Plyler v. Doe, which
    established every child's right to receive a public education
    regardless of immigration status.

        Question 5. According to a July 2012 OCR report, under Title VI of
    the Civil Rights Act of 1964, OCR is responsible for ``affirming the
    equal right of all children in the U.S., regardless of their
    immigration status, race, color or national origin, to attend public
    elementary and secondary school.''\1\ Do you believe that
    discrimination on the basis of citizenship status is protected under
    Title VI's protection against discrimination on the basis of race,
    color, or national origin?
    ---------------------------------------------------------------------------
        \1\ Office of Civil Rights. (2012, July). ``Title VI Enforcement
    Highlights.'' U.S. Department of Education.
    ---------------------------------------------------------------------------
        Answer. If confirmed, I will ensure that OCR vigorously enforces
    Title VI of the Civil Rights Act of 1964 to protect every student's
    right to access his or her education free from discrimination based on
    race, ethnicity, or national origin, consistent with U.S. Supreme Court
    precedent, such as Plyler v. Doe, which established every child's right
    to receive a public education regardless of immigration status.

        Question 6. In your legal opinion, does Title VI prohibit states
    and districts from unjustifiably utilizing criteria or methods of
    administration that have the effect of subjecting individuals to
    discrimination because of their race, color, or national origin, or
    have the effect of defeating or substantially impairing accomplishment
    of the objectives of a program for individuals of a particular race,
    color, or national original?
        Answer. If confirmed, I will ensure that OCR vigorously enforces
    Title VI of the Civil Rights Act of 1964 to protect every student's
    right to access his or her education free from discrimination based on
    race, ethnicity, or national origin, consistent with U.S. Supreme Court
    precedent, such as Plyler v. Doe, which established every child's right
    to receive a public education regardless of immigration status. Under
    my leadership, if confirmed, OCR will examine any school policy that
    may operate to violate the rights of students under Title VI to full
    and equal access to education free from barriers based on race,
    ethnicity, or national origin.

        Question 7. In 2011, the U.S. Department of Justice and U.S.
    Department of Education (``The Department'') issued a joint Dear
    Colleague letter, which notes that a ``State may not deny access to a
    basic public education any child residing in the state, whether present
    in the United States legally or otherwise''. \2\ In 2014, the same
    Departments reaffirmed these rights and instructed school districts on
    how to ensure equal access for all children to public schools,
    regardless of status.\3\ Do you agree that under both the U.S.
    Constitution and Title VI of the Civil Rights Act of 1964, states may
    not deny access to a basic public education to any child residing in
    the state, whether present in the United States legally or otherwise?
    ---------------------------------------------------------------------------
        \2\ https://www..ed.gov/about/offices/list/ocr/letters/colleague-
    201101.html
        \3\ https://www..ed.gov/about/offices/list/ocr/letters/colleague-
    201405.pdf
    ---------------------------------------------------------------------------
        Answer 7. OCR enforces Title VI of the Civil Rights Act of 1964 to
    protect every student's right to access his or her education free from
    discrimination based on race, color, or national origin, consistent
    with U.S. Supreme Court precedent, such as Plyler v. Doe, which
    established every child's right to receive a public education
    regardless of immigration status.

        Question 8. In your legal opinion, do you believe OCR has the
    authority to ensure that states and districts do not deny access to a
    basic public education to any child residing in the state, whether
    present in the United States legally or otherwise?
        Answer. OCR has authority under Title VI of the Civil Rights Act of
    1964 to protect every student's right to access his or her education
    free from discrimination based on race, ethnicity, or national origin,
    consistent with U.S. Supreme Court precedent, such as Plyler v. Doe,
    which established every child's right to receive a public education
    regardless of immigration status.

            a. If confirmed, what would be your duty to act in a
            circumstance where undocumented students are clearly facing
            discrimination in schools?
            Answer. If confirmed, I will ensure that OCR vigorously
            enforces Title VI of the Civil Rights Act of 1964 to protect
            every student's right to access his or her education free from
            discrimination based on race, ethnicity, or national origin,
            consistent with U.S. Supreme Court precedent, such as Plyler v.
            Doe, which established every child's right to receive a public
            education regardless of immigration status.

            b. Will you commit to referring such clear and unconstitutional
            discrimination to the U.S. Department of Justice if it came to
            your attention?
            Answer. If confirmed, I will work with my colleagues in the
            U.S. Department of Justice, along with the Department of
            Education's Office for General Counsel, to abide by all
            memoranda of understanding, delegation agreements, and other
            inter-agency agreements, as well as applicable laws and
            regulations, regarding referrals of matters to appropriate
            enforcement agencies.

        Question 9. A school district refuses to enroll a student who has a
    foreign birth certificate or fails to provide social security number.
    Based solely on this information, does OCR have the authority to
    investigate this district for discrimination against this student?
        Answer. OCR enforces Title VI of the Civil Rights Act of 1964 to
    protect every student's right to access his or her education free from
    discrimination based on race, ethnicity, or national origin. Under my
    leadership, if confirmed, OCR will examine school policies that may
    operate to violate the rights of students under Title VI to full and
    equal access to education free from barriers based on race, color, or
    national origin. It would be inappropriate of me to opine on
    hypothetical facts that could lead to opening an OCR investigation.

        Question 10. If confirmed, will your office ensure that school
    districts will not collect social security numbers in a manner that
    impedes the enrollment of undocumented or foreign-born students?
        Answer. Under my leadership, if confirmed, OCR will examine school
    policies that may operate to violate the rights of students under Title
    VI to full and equal access to education free from barriers of
    discrimination based on race, color, or national origin. It would be
    inappropriate of me to opine on hypothetical facts that could lead to
    opening an OCR investigation.

        Question 11.  If a public school teacher refused to teach any
    undocumented students, even those who are U.S. citizens, because they
    believe these students to be undocumented, if confirmed, would OCR step
    in to protect the civil rights of those undocumented students?
        Answer. Under my leadership, if confirmed, OCR will examine any
    school policy that may operate to violate the rights of students under
    Title VI to full and equal access to education free from barriers of
    discrimination based on race, color, or national origin. It would be
    inappropriate of me to opine on hypothetical facts that could lead to
    opening an OCR investigation.

        Question 12. In February, 2017, Secretary of Education Betsy DeVos
    and Attorney General Jeff Sessions rolled back guidance from the Obama
    administration regarding transgender student rights, suggesting there
    was no legal basis to interpret Title IX in this manner. Do you believe
    that harassment of lesbian, gay, bisexual, and transgender (LGBT)
    students falls under the jurisdiction of Title IX?
        Answer. Title IX prohibitions on sex discrimination, including
    harassment based on sex stereotyping, protect all students, including
    LGBT students.

        Question 13. Numerous Federal circuit\4\ and district \5\ courts
    have held that Federal civil rights nondiscrimination laws that
    prohibit discrimination on the basis of sex protect transgender people
    from discrimination. Additionally, a growing body of case law has
    determined that those laws also prohibit sexual orientation
    discrimination. For example, the Seventh Circuit has determined that
    sexual orientation discrimination and gender identity discrimination
    are prohibited Title VII and Title IX in Hively v. Ivy Tech \6\ and
    Whitaker v. Kenosha Unified School District\7\ respectively. In the
    Seventh Circuit, and in any jurisdiction with applicable case law, do
    you believe OCR has the authority, under its Title IX responsibilities,
    to protect LGBT students from discrimination on the basis of their
    sexual orientation and gender identity?
    ---------------------------------------------------------------------------
        \4\ See Schwenk v. Hartford, 204 F.3d 1187, 1200 (9th Cir. 2000);
    Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000);
    Smith v. city of Salem 378 F.3d 566 (6th Cir. 2004); Glenn v. Brumby,
    663 F.3d 1312, 1316 (11th Cir. 2011); Whitaker v. Kenosha Unified
    School District, 858 F.3d 1034 (7th Cir. 2017).
        \5\ See ,e.g., Miles v. New York Univ., 979 F. Supp. 248, 249-50
    (S.D.N.Y. 1997), Lopez v. River Oaks Imaging & Diagnostic Grp., Inc.,
    542 F. Supp. 2d 653 (S.D. Tex. 2008), and Schroer v. Billington, 577 F.
    Supp. 2d 293, 305 (D.D.C. 2008).
        \6\ Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016)
        \7\ Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th
    Cir. 2017)
    ---------------------------------------------------------------------------
        Answer. Title IX prohibitions on sex discrimination, including
    harassment based on sex stereotyping, protect all students, including
    LGBT students.

        Question 14. I understand that a complaint does not automatically
    and necessarily constitute a violation of civil rights law. I also
    understand that a complaint is used by OCR to determine whether or not
    the office should open an investigation to determine if students' civil
    rights have been violated.
        Answer. We note there is no question asked here for response.

        Question 15. I would like to understand what types of complaints
    indicate to you that an OCR investigation is necessary to protect the
    civil rights of the LGBT students. In your legal opinion, in the
    following cases, is there enough information to open an OCR
    investigation to determine if violations of civil rights laws under OCR
    jurisdiction have occurred? (Please answer each question individually.)
            a. A public high school softball coach refuses to allow a
            transgender girl to play on the school's softball team.
            Answer. Evaluation by OCR as to whether to open an
            investigation depends on the particular facts and
            circumstances. It would be inappropriate of me to opine on
            hypothetical facts that could lead to opening an OCR
            investigation.

            b. A public school suspends a transgender boy for wearing the
            boy's version of the school's required uniform.
            Answer. Evaluation by OCR as to whether to open an
            investigation depends on the particular facts and
            circumstances. It would be inappropriate of me to opine on
            hypothetical facts that could lead to opening an OCR
            investigation.

            c. A public high school prohibits a student from bringing his
            boyfriend (or her girlfriend) to prom solely because the school
            leadership does not believe homosexuality aligns with the
            school's values.
            Answer. Evaluation by OCR as to whether to open an
            investigation depends on the particular facts and
            circumstances. It would be inappropriate of me to opine on
            hypothetical facts that could lead to opening an OCR
            investigation.

            d. A transgender student's parent notifies school officials
            that their child prefers a different name and gender pronoun
            that what is on official school records, but the public school
            refuses to recognize this preference.
        Answer. Evaluation by OCR as to whether to open an investigation
    depends on the particular facts and circumstances. It would be
    inappropriate of me to opine on hypothetical facts that could lead to
    opening an OCR investigation.

            e. A public college prohibits the creation of a Gay Straight
            Alliance, but allows for other non-curricular student clubs.
        Answer. Evaluation by OCR as to whether to open an investigation
    depends on the particular facts and circumstances. It would be
    inappropriate of me to opine on hypothetical facts that could lead to
    opening an OCR investigation.

        Question 16. Do you believe all American youth, regardless of race,
    have equal access to resources and activities (e.g., tutors, well-
    funded public education, extracurricular programs, etc.) that are
    traditionally considered in the college admissions process?
        Answer. No.

        Question 17. Do you believe that peaceful expressions of criticism
    of Israeli government policy on United States college and university
    campuses are protected speech under the First Amendment? Please explain
    and cite applicable legal authority.
        Answer. Yes. The Supreme Court has decisively and correctly
    declared the following: ``The essentiality of freedom in the community
    of American universities is almost self-evident. No one should
    underestimate the vital role in a democracy that is played by those who
    guide and train our youth. To impose any strait jacket upon the
    intellectual leaders in our colleges and universities would imperil the
    future of our Nation. Teachers and students must always remain free to
    inquire, to study and to evaluate, to gain new maturity and
    understanding; otherwise our civilization will stagnate and die.''
    Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

        Question 18. Do you believe that peaceful expressions of criticism
    of Israeli government policies or actions on United States college and
    university campuses represent prima facie evidence of violations of the
    civil rights of Jewish students? Please explain and cite applicable
    legal authority.
        Answer. No. See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
    OCR has properly recognized that it ``interprets its regulations
    consistent with the requirements of the First Amendment, and all
    actions taken by OCR must comport with First Amendment principles.''
    See 2003 Dear Colleague Letter, https://www..ed.gov/about/offices/list/
    ocr/firstamend.html

        Question 19. Do you believe that peaceful expressions of criticism
    of the policies or actions of the Palestinian Liberation Organization
    (PLO), the Palestinian Authority (PA), any other Palestinian entity or
    group, or a Palestinian individual on United States college and
    university campuses are protected speech under the First Amendment?
    Please explain and cite applicable legal authority.
        Answer. Yes. Please see my response to question number 17.

        Question 20. In your April 2011 paper assessing OCR's bullying and
    harassment policy, you recommended that OCR adopt the State Department-
    endorsed definition of anti-Semitism, which includes examples of ways
    in which anti-Semitism can intersect with hatred toward Israel (i.e.,
    demonizing Israel, applying a double standard when assessing Israeli
    government policy, delegitimizing Israel's existence, etc.). Kenneth
    Stern, a former director of the division on anti-Semitism and extremism
    at the American Jewish Committee (AJC) and the lead author of that
    definition, wrote in an editorial in December 2016 that it ``was
    intended for data collectors writing reports about anti-Semitism in
    Europe. It was never supposed to curtail speech on campus.''
        Are you concerned that, were you to implement your recommendation
    and require OCR to adopt the State Department definition of anti-
    Semitism for the purposes of investigating complaints for alleged
    violations of students' civil rights, would such an approach lead to
    unconstitutional restrictions on speech regarding the Israeli-
    Palestinian conflict on United States college and university campuses?
    Please explain and cite applicable legal authority.
        Answer. In my personal capacity and as President of the Louis D.
    Brandeis Center for Human Rights Under Law, I have recommended that OCR
    use the State Department definition of anti-Semitism in a manner
    consistent with the proposed Anti-Semitism Awareness Act and the First
    Amendment. That is to say, I have recommended that the definition be
    used to determine whether certain conduct, pertinent to Title VI of the
    Civil Rights Act of 1964, is motivated by anti-Semitic intent. The
    Supreme Court has held that ``The First Amendment . . . does not
    prohibit the evidentiary use of speech to establish the elements of a
    crime or to prove motive or intent.'' Wisconsin v. Mitchell, 508 U.S.
    476, 489 (1993).

        Question 21. In your capacity as President of the Louis D. Brandeis
    Center for Human Rights Under Law, or in any other role in your
    professional life, please describe your efforts to promote dialog and
    mutual understanding between Jewish and Arab students on United States
    college and university campuses.
        Answer. I have promoted dialog and mutual understanding in a
    variety of ways. For example, I have personally made it a point to
    speak out against anti-Arab stereotypes in the media and in the
    entertainment industry, and I have given public testimony on this
    issue. http://brandeiscenter.com/wp-content/uploads/2017/10/testimony--
    021313.pdf.
        I have also spoken out against anti-Muslim discrimination,
    especially in American penal institutions, and have given testimony as
    well as published research on this area. https://link.springer.com/
    article/10.1007/s12552-009-9003-5.
        This reflects the Brandeis Center's vision statement, which
    provides that ``The Louis D. Brandeis Center promotes justice for all
    as a means of securing the rights of the Jewish people and secures the
    rights of the Jewish people as a means of advancing justice for all.''
    I have also encouraged the Brandeis Center's law student chapters to
    collaborate with a wide range of other law student groups and to share
    best practices for such collaborations with one another.
        If you have any questions, then please contact Josh Delaney in my
    office at (202) 224-4543.
                                 senator kaine
        Question 1. President Trump and Secretary DeVos have been huge
    proponents of spending taxpayer dollars to fund private voucher
    programs. There have been numerous stories about private school voucher
    programs discriminating against children and families, including
    students with disabilities and LGBT students or students whose parents
    may be from the LGBT community.
            a. Do you believe that private school receiving taxpayer
            dollars should be able to deny admissions to a student who is
            gay?
            Answer. Schools receiving Federal financial assistance must
            comply with Federal civil rights laws, including prohibitions
            under Title IX against discrimination based on sex.

            b. What about for a child whose parents are gay?
        Answer. Schools receiving Federal financial assistance must comply
    with Federal civil rights laws, including prohibitions under Title IX
    against discrimination based on sex.

            c. What about if a child is in a wheelchair?
        Answer. Schools receiving Federal financial assistance must comply
    with Federal civil rights laws, including prohibitions against
    discrimination based on disability.

        Question 2. According to the Civil Rights Data Collection, African
    American students are almost four times as likely to be suspended and
    nearly twice as likely to be expelled than white students, while
    students with disabilities are more than twice likely to be suspended
    than students without disabilities.
            a. If a school discipline policy resulted in a disparate impact
            on students of a particular race as compared with students of
            other races, is it the role of the OCR Assistant Secretary to
            examine this policy and combat disparate discipline based on
            race?
            Answer. Yes, it is the role of OCR to do so, if the matter is
            identified through OCR's complaint-resolution process or in its
            proactive compliance reviews, and if the identified policy is
            in violation of Title VI; although this work is typically
            conducted not by the Assistant Secretary alone, but rather with
            OCR's career enforcement staff.

            b. If confirmed, do you commit to investigating these schools
            and school districts?
            Answer. If confirmed, I commit to working with departmental
            staff to ensure that such matters are addressed properly under
            applicable laws, regulations, and policies.

            c. Do you commit to maintaining the disparate discipline
            guidance too?
            Answer. Out of deference to the Secretary, whom I have not had
            the opportunity to discuss this matter with, I cannot commit to
            any particular policy or decision related to this matter.

            d. Based on your prior leadership as Acting Assistant Secretary
            of OCR, what alternative policy or practices would you
            recommend to be put in place to alleviate disparate impact?
            Answer. If OCR were to replace its existing guidance on student
            discipline, as this question seems to envision, the process of
            doing so would be appropriate for a rulemaking process with
            public notice and comment. I would not pre-decide the issue.
            Instead, any recommendations would be based on a process
            providing for public input.

        Question 3. In September 2017, OCR's Acting Assistant Secretary,
    Candice Jackson, rescinded critical Title IX guidance that was issued
    in 2011 and 2014. This decision came 2 days after the comment
    collection period ended, in which 99 percent of the 12,000 comments it
    received on the guidance advised the Department of Education to
    maintain it. After rescinding the guidance, OCR issued problematic and
    confusing interim guidance and announced that new Title IX policy would
    be created through a public comment period.
            a. Why release new interim guidance on a topic prior to
            consideration of public comments?
            Answer. It would be inappropriate for me to comment on the
            decision made to release the interim guidance when I have not
            been privy to Department discussions leading to that decision.

            b. Do you think the public comment period is an important
            aspect of the decisionmaking process? If so, do you commit to
            considering public comments before rescinding guidance or
            issuing new guidance?
            Answer. If confirmed, I will support Department compliance with
            the Administrative Procedures Act and meaningful review and
            consideration by the Department of public comments received.

            c. How will you consider public comments when making decisions
            around guidance?
        Answer. If confirmed, I will support Department compliance with the
    Administrative Procedures Act and meaningful review and consideration
    by the Department of public comments received.

        Question 4. During your tenure at OCR you issued a 2004 Dear
    Colleague letter which stated you will ``aggressively prosecute'' a
    school for what you believe to be ``religious harassment.''
            a. Will you do so in the instance that a school abides with its
            Title IX obligations to address anti-LGBTQ harassment by
            disciplining a perpetrator who cites his or her religious
            beliefs?
            Answer No. In the 2004 Dear Colleague letter to which you
            refer, I noted that ``OCR lacks jurisdiction to prohibit
            discrimination against students based on religion per se'' but
            announced that ``OCR will aggressively prosecute harassment of
            religious students who are targeted on the basis of race or
            gender, as well as racial or gender harassment of students who
            are targeted on the basis of religion.'' If confirmed, I would
            not prosecute ``religious harassment'' unless given the
            statutory authority to do so.

            b. Do you think it is acceptable for a student to harass LGBTQ
            students based on the student's personal religious beliefs?
            Answer. No.

        Question 5. During your tenure as Acting Assistant Secretary for
    OCR in 2004, you proposed new Title IX regulations to allow schools to
    offer single-sex education. There is overwhelming evidence that
    suggests single-sex education reinforces harmful gender stereotypes and
    does not actually improve educational outcomes.
            a. Considering this abundance of research, how do you justify
            your decision?
            Answer. During my prior tenure at the Department, the Secretary
            of Education proposed new regulations on this subject.
        During my prior tenure at the Department, the Secretary of
    Education proposed new regulations on this subject. The Department set
    forth the basis for its decision at: https://www.Federalregister.gov/
    documents/2006/10/25/E6-17858/nondiscrimination-on-the-basis-of-sex-in-
    education-programs-or-activities-receiving-Federal

            b. Do you believe that students learn differently based on sex?
        Answer. While my personal beliefs or opinions do not determine how
    I would, if confirmed, approach OCR's responsibility to enforce
    applicable regulations, I believe that all students have the right to
    learn in an environment free from discrimination based on sex, and I am
    aware that the question of whether students learn differently based on
    sex is the subject of debate and varying perspectives.

            c. How will you utilize evidence from research as you make
            decisions in your role?
            Answer. If confirmed, I will enforce the statutes and
            regulations that apply to issues falling under OCR's purview,
            and provide advice to the Secretary based on many factors
            including evidence-based research.
                                 senator hassan
        Question 1. During your nomination hearing, I referenced an
    internal memo Acting Assistant Secretary Candice Jackson sent in
    June.\8\ This memo addresses the way in which the Office of Civil
    Rights investigates claims. Specifically, this memo removed a
    recommended 3 year look back to determine whether a particular claim is
    part of a larger systemic issue and advised investigators that a
    systemic approach may only be applied when individual complaint
    allegations raise systemic concerns.
    ---------------------------------------------------------------------------
        \8\ OCR Instructions to the field re Scope of Complaints (https://
    www.documentcloud.org/documents/3863019-doc00742420170609111824.html)
    ---------------------------------------------------------------------------
        When asked about the Office of Civil Rights' use of systemic
    investigations, you said, ``I believe that there is a role for systemic
    investigations just as there is a role for individual investigations
    and that the decision should be made on a fact-specific, case-by-case
    basis,'' indicating that you may also have concerns with this memo.
        You committed to me that you would review this memo and report back
    to the HELP committee your findings and any changes you make to the
    investigation process.
        If confirmed, can you commit to do this within 3 months?
        Answer. If confirmed, I will work with my colleagues in the Office
    of Legislation and congressional Affairs to be responsive to any
    requests for information from members of the HELP Committee or other
    congressional offices.

        Question 2. Does Section 504 of the Rehabilitation Act apply to a
    student who experiences a learning disability, such as ADHD who is
    reaching grade level proficiency year over year but may misplace
    assignments, and be inattentive or disruptive in class?
        Answer. Section 504 applies to any student with a disability
    (whether or not the student is also IDEA-eligible), and a disability is
    defined to mean a physical or mental impairment that substantially
    limits a major life activity (or a record of such an impairment, or is
    regarded as having such an impairment). A student with a learning
    disability that substantially limits a major life activity is therefore
    covered under Section 504.

        Question 3. What standard of evidence do you believe is appropriate
    to use in adjudicating cases of sexual harassment and violence in Title
    IX proceedings?
        Answer. It would not be appropriate for me to provide an opinion on
    a matter that is under pending consideration by the Department, but if
    confirmed, I look forward to working with the Secretary on this issue.
                               senator murkowski
        Question 1. Under the Commerce Clause, Congress can provide
    programs specifically to benefit Indians due to their indigenousness-a
    political, rather than racial, classification. Congress has tasked the
    Department with treating Native Hawaiians in that manner. During your
    tenure as Staff Director at the U.S. Commission on Civil Rights, the
    Commission came to the conclusion that Congress could not pass the
    Native Hawaiian recognition bill because Native Hawaiians are not
    Indians under the Constitution. Did you agree with that conclusion? If
    so, how will you act in your capacity (if confirmed) as Assistant
    Secretary of OCR in addressing congressionally authorized programs
    pertaining to Native Hawaiians and their rights as indigenous people?
    Do you believe that statutes providing programs for Native Hawaiians
    through the Department of Education are unconstitutional? If disputes
    arising as to the enforceability of such statutes occur will you
    decline to enforce?
        Answer. The Commission's findings and recommendations were adopted
    by the Commissioners rather than by the Staff Director. As Staff
    Director, I tried to ensure that the Commissioners had sufficient staff
    support for their determinations, rather than supplanting my own
    personal views for theirs. OCR is not responsible, to the best of my
    knowledge, for administration of any congressionally authorized
    programs pertaining to Native Hawaiians and their rights as indigenous
    people. I do not recall having formed a personal legal opinion on the
    constitutional issue described in this question. However, if I were
    called upon to administer such programs, or take other action with
    respect to the programs, I would enforce the law. If a question
    concerning constitutionality should arise, I would consult with the
    Office of General Counsel and any other applicable governmental legal
    advisors before taking action. If confirmed I would be faithful to the
    Constitution and enforce all statutes within the lawful authority of
    the position to which I were confirmed.

        Question 2. During your tenure as Staff Director of the U.S.
    Commission on Civil Rights, the agency was polarized between a majority
    of Republicans and independents who were once Republicans and the
    minority. The Democrats serving on the Commission felt that their views
    were neither heard nor respected. What actions did you take to reduce
    that ideological polarization and address concerns that the Commission
    was ineffectual because of that polarization?
        Answer. During my tenure, the Commission took several steps to
    protect and respect the views of minority commissioners. It is however
    the Commissioners themselves who deserve credit for these reforms,
    since they took the lead based on the understanding that addressing
    such matters fell within their responsibility. The General
    Accountability Office summarized some of the reforms adopted during my
    tenure in this way: ``In 2005, the Commission acted to implement our
    2003 recommendation to increase Commissioners' involvement in the
    development of its national office products.'' https://www.gao.gov/
    assets/260/250044.html The GAO further elaborated: ``Under new policies
    effective in May 2005, the Commissioners are required to approve
    Commission products at all key stages, from proposal development
    through final report stages, and their approval requires a majority
    vote. If there are any significant changes to a product at any stage,
    the Staff Director and Commissioners are required to approve these
    changes as well. This change marks a significant improvement over
    previous Commission policy, in which the Commissioners had limited
    involvement in the development of its products. The previously limited
    role was a source of considerable concern to some Commissioners and led
    to our 2003 recommendation that the Commission provide for increased
    involvement of the Commissioners in planning and implementation.''
        In addition, during this period, the Commission adopted other
    measures to protect appointees of the minority party, including reforms
    to enable separate votes on each finding and recommendation; to give
    all Commissioners adequate time to prepare opinions for publication; to
    ensure that the agency is specific as to whether certain findings and
    recommendations are made on behalf of all Commissioners or only a
    certain number of them; and to prevent public communications that
    mischaracterize the Commission's findings and recommendations. I
    oversaw the development of a system that would ensure that every
    Commissioner could provide equal input into the process for selecting
    the topics of national enforcement reports.

        Question 3. During the hearing held on December 5, you were asked
    whether the Office of Civil Rights would investigate complaints filed
    by transgender students. You replied that all students deserve freedom
    from harassment and discrimination and that if confirmed, you would
    enforce all applicable laws, and investigate if the facts of the case
    meet the standards for investigation. However, on November 14, 2017 in
    his hearing before the Committee, General Zais stated that LGBT
    students do not belong to a protected class and that he is unclear
    right now what the law is if an LGBT student is subjected to bullying.
    Given this, can you please clarify your position as to what protections
    the Office of Civil Rights can provide LGBT students who file
    complaints that they have experienced bullying and harassment in
    school?
        Answer. Every student, including every LGBT student, is protected
    from discrimination based on sex, race, and disability under the laws
    in OCR's jurisdiction. Title IX prohibits sex discrimination (including
    harassment, bullying, and violence) where the sex-based harassment or
    bullying targets a student for being gender non-conforming or otherwise
    failing to adhere to sex stereotypes. Any student, regardless of sexual
    orientation or gender identity, is entitled to file a complaint with
    OCR arising from sex-based bullying and harassment.
                                 senator hatch
        Question 1. Mr. Marcus, your office routinely collects data on
    civil rights abuses at schools across the country, which has made it
    possible to see when states and districts and schools are providing
    great support for students or are underserving students. Will you
    continue to collect this information and make it available to the
    public so that communities can make informed educational decisions?
        Answer. Yes; I support the data collection efforts represented in
    the CRDC, and if confirmed I will advocate for the Department to
    continue to collect and publish this important data.
      Response by Scott A. Mugno to Questions of Senator Murray, Senator
         Whitehouse, Senator Baldwin, Senator Warren, and Senator Hatch
                                 senator murray
        Question 1. The mission of the Occupational Safety and Health
    Administration (OSHA) is ``to assure safe and healthful working
    conditions for working men and women by setting and enforcing standards
    and by providing training, outreach, education and assistance.'' If
    confirmed, how will you assure safe and healthful working conditions as
    the head of OSHA?
        Answer. As I stated in my testimony before the committee, it begins
    by leading and facilitating transparent discussions between all safety
    professionals--the career experts at OSHA, as well as those from the
    various stakeholder sectors. By using timely, actionable, and accurate
    data as well as all the ``tools'' OSHA is provided by the OSH Act
    appropriately, OSHA can continue to improve the safe and healthy
    working conditions for working men and women.

        Question 2. You participate in the safety, health, and labor policy
    activities of the Chamber of Commerce, and the Chamber strongly
    supports your nomination to head OSHA. You have also served as Chair of
    the Chamber's OSHA committee, and the Labor Policy Committee. Please
    provide the following information:
            a. During what time period did you Chair each of these
            committees?
            b. What are/were your responsibilities in each of these
            positions?
            c. Are there particular policies of the Chamber with regard to
            safety and health that you do not support or agree with?
        Answer. I have been Chairman of the U.S. Chamber of Commerce's OSHA
    Subcommittee since June 2006. I have been Chairman of the U.S. Chamber
    of Commerce's Labor Relations Committee since June 2011. I have been a
    member of each of these member committees prior to that. In these
    Chairman's roles, I lead and facilitate the meetings and their
    discussions through an agenda set by the Chamber's staff. At times, as
    the Labor Relations Committee Chairman, I made recommendations to the
    Chamber staff concerning speakers members would be interested in
    hearing from at those committee meetings. While I don't recall specific
    policies, FedEx (I as their representative) always advocated for clear
    effective policies or regulations that would improve safety and health
    in the workplace.

        Question 3. You noted in your opening statement at your
    confirmation hearing that you ``fully respect the role organized labor
    has played in the safety arena over its history.'' In what ways do you
    believe that organized labor contributes to worker health and safety in
    today's workplaces?
        Answer. Some of organized labor's safety professionals repeatedly
    and continually reach out to their peers in other sectors in sincere,
    passionate efforts to find common ground to improve safety and health
    in our country's workplaces. As I stated in my opening statement, this
    is noble work.

        Question 4. What do you see as the correct balance between
    enforcement and compliance assistance? Would you seek to change that
    balance to provide additional resources to compliance assistance
    activities relative to enforcement?
        Answer. As I mentioned in my testimony, both compliance assistance
    and enforcement are necessary tools, but they are not mutually
    exclusive. As specified in the OSH Act, OSHA is authorized to use
    enforcement, compliance assistance, training, outreach, and voluntary
    collaborative programs to maximize its effectiveness. These multiple
    avenues currently exist for OSHA and employers to engage with each
    other in their mutual goal to improve workplaces. They include the
    Alliance Program, The Strategic Partnership program, the Voluntary
    Protection Program, the Challenge program and the SHARP program. The
    balanced use and expansion of all these effective tools should be
    encouraged and supported.

        Question 5. OSHA collected summary injury and illness data from
    employers from 1996-2011. In 2004, a court ruled that OSHA had to make
    that data publicly available under FOIA, and in recent years, OSHA also
    made the data available in a searchable data base on its website. Will
    you continue to make establishment specific injury and illness data
    collected by OSHA publicly available?
        Answer. I understand the data base this data sits on is several
    generations behind in the technology world. It is also my understanding
    that OSHA is working to update the injury and illness data base system
    in order to continue to make this information searchable on newer
    computers.

        Question 6. As you know, OSHA has limited resources and would take
    over 150 years to get into every workplace just once. How do you
    believe OSHA should target its inspection and compliance assistance
    resources? Do you think it should target inspections to the most
    dangerous workplaces or the most dangerous industries?
        Answer. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff. Clearly a prioritization
    process must be used to address the highest risks responsible for the
    highest number of fatalities and serious injuries occurring. The
    prudent approach in addressing these is using the appropriate ``tools'
    provided under the OSH Act--enforcement, compliance assistance,
    training, outreach, and voluntary collaborative programs--in order to
    maximize lifesaving effectiveness and improvement.
        Question 7. What data do you think OSHA needs to make
    determinations regarding how to target inspections?
        Answer. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff. Additionally, I would
    seek input from NIOSH and BLS. Timely, actionable, and accurate data is
    key to developing and executing a successful safety improvement effort.

        Question 8. OSHA has a long-standing policy of holding multiple
    employers responsible for the safety and health hazards that they
    create or control that put workers at risk. In addition, in recent
    years, with the growth in the use of staffing agencies by employers,
    OSHA has set forth policies on the safety and health responsibilities
    of staffing agencies and host employers.
        a. Do you support OSHA's multiemployer and joint employer
    enforcement policies?
        b. As OSHA Assistant Secretary, would you maintain them?
        Answer. As I stated in my testimony before the committee, OSHA has
    a longstanding multiemployer policy with regard to enforcement and I
    expect this to continue.
        Question 9. One of OSHA's major responsibilities is to set safety
    and health standards.
            a. What in your view are the most important and effective S&H
            standards that OSHA has issued?
            b. Are their OSHA standards that you think are ineffective or
            problematic and should be revised or repealed? Which ones?
            c. What safety and health hazards do you think are not
            adequately addressed by current OSHA standards where new
            standards are needed?
        Answer. There are many important and effective safety and health
    standards; hazardous materials, toxic and hazardous substances,
    personal protective equipment, and control of hazardous energy to name
    a few. I am an advocate for periodic review of all safety and health
    standards--so standards do not become problematic or ineffective. But
    if they do become outdated, then they can be retired. Permissible
    exposure limits (PELs) are an example of requirements in need of this
    attention.

        Question 10. In a discussion on worker safety at the Chamber of
    Commerce, you are quoted as saying ``we have got to free OSHA from its
    own statutory and regulatory handcuffs.'' And that ``maybe some
    regulations should be subject to sunset provisions.'' What specific
    regulations do you think should be removed or ``sunset''?
        Answer. As stated above, I am an advocate for periodic review of
    all safety and health standards--so standards do not become problematic
    or ineffective but if they do become outdated, then they can be
    retired. Permissible exposure limits (PELs) are an example of
    requirements in need of this attention. The fast changing workplace
    along with technologies not envisioned when many regulations were
    implemented may dictate some regulations be revised, updated, or
    retired.

        Question 11. In 2014, FedEx filed comments regarding OSHA's rule to
    ``Improve Tracking of Workplace Injuries and Illnesses,'' also known as
    the ``electronic recordkeeping rule,'' opposing the collection of
    detailed injury data from larger employers and stronger anti-
    retaliation protections. FedEx also opposed making any of the injury
    and illness data public. The FedEx comments listed you as the contact
    for FedEx. Do you believe that this information should not be publicly
    available?
        Answer. Among other concerns raised, protecting employee privacy
    and personal identifying information was critical. In August that
    concern was legitimized when OSHA took down the data base gathering
    this data due to a suspected breach.
        Question 12. Do you believe that workers who report injuries to
    their employers should be legally protected against retaliation?
        Answer. Absolutely. No employee should be subjected to illegal
    retaliation in the workplace for exercising a legal right they possess.

        Question 13. OSHA's electronic recordkeeping rule does not allow
    employers to discourage workers from reporting an injury or illness,
    and it requires education around and enforcement of anti-retaliation
    rights. The rule's anti-retaliation provisions went into effect in
    2016. As FedEx Ground's Vice President of Safety, Sustainability and
    Vehicle Maintenance, what steps have you taken to comply with the anti-
    retaliation requirements within the rule?
        Answer. FedEx Ground enhanced its injury reporting policy in 2016
    to ensure compliance with this rule.

        Question 14. Section 550 of the House consolidated appropriations
    bill for fiscal year 2018 (H.R. 3354), which was passed by the House of
    Representatives on September 14, 2017, blocks funding for the
    implementation of the above mentioned rule to ``Improve Tracking of
    Workplace Injuries and Illnesses.'' Do you support or oppose House
    Section 550, which would block funding for the implementation of the
    injury and illness reporting rule?
        Answer. Should I be confirmed, I will abide by the laws enacted.

        Question 15. In January, the Chamber of Commerce and other industry
    groups filed a lawsuit against the Department of Labor (DOL) and OSHA
    regarding the electronic recordkeeping rule, citing regulatory
    overreach and concerns over the anti-retaliation portion of the rule.
    You serve as Chairman of the Chamber of Commerce's OSHA Subcommittee.
    The Subcommittee's May 2017 agenda includes the agenda item: ``Status
    of Legal Challenge to OSHA Injury/Illness reporting regulation with
    anti-retaliation supplemental.'' The agenda closes with: ``Developing
    recommendations for new OSHA Assistant Secretary beyond just undoing
    various Obama administration actions and regulations.'' Given the
    apparent conflicts between these two roles, what assurances can you
    provide that you will seek to preserve and fully implement all
    components of the electronic recordkeeping rule, including the anti-
    retaliation measures?
        Answer. Again, should I be confirmed, I will abide by the laws
    enacted. The Injury and Illness regulation is under court challenge,
    and I will examine the rule in light of any instructions by the court.

        Question 16. Do you have specific, articulable concerns with the
    anti-retaliation measures?
        Answer. If I am confirmed, I will consult with the professional
    career staff at OSHA to determine if there are concerns about the anti-
    retaliation measures. As stated in my response to question 12, no
    employee should be subjected to illegal retaliation in the workplace
    for exercising a legal right they possess.

        Question 17. Please describe FedEx's internal whistleblower program
    to assure that the company learns of and acts responsibly against any
    illegality. OSHA's Directorate of Whistleblower Protection Programs
    (DWPP) faces many structural and financial restrictions, making it
    difficult to enforce the 22 Federal whistleblower statutes that it
    administers. An audit by the DOL Office of Inspector General in
    September 2015 concluded that while OSHA has improved its
    administration of Whistleblower Programs, OSHA must continue to
    strengthen its efforts. Specifically, the OIG found that OSHA was not
    consistently reviewing complaints in a complete, sufficient, and timely
    manner; OSHA had not updated its manual and training to reflect the
    most recent program updates; more than 70 percent of investigations
    were not conducted within statutory timeframes; and OSHA did not timely
    and adequately communicate alleged violations to OSHA's enforcement
    units or to other Federal agencies with jurisdiction to investigate the
    allegations. What concrete actions would you take as Assistant
    Secretary to increase the effectiveness of OSHA's Directorate of
    Whistleblower Protection Programs?
        Answer. FedEx is committed to legal compliance, including
    prohibiting any form of retaliation. Information about the FedEx
    Whistleblower Program and FedEx Alert line is available on its Investor
    Relations web page under Governance and Citizenship. If confirmed, I
    look forward to discussing this issue with the Department's OSHA staff
    to review OSHA's program to determine what can be done to increase its
    effectiveness. If confirmed, I look forward to discussing this issue
    with the Department's OSHA staff to review the program to determine
    what can be done to increase its effectiveness.

        Question 18. In 2016, OSHA made substantial improvements to its
    Whistleblower Investigations Manual. However, questions remain about
    effective enforcement of the manual. As Assistant Secretary, what
    actions would you take to ensure that OSHA whistleblower investigators
    are in compliance with the updated manual?
        Answer. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff.

        Question 19. Outside OIG review, there never has been an
    independent audit of regional compliance and performance enforcing the
    22 corporate whistleblower laws for which OSHA's DWPP is responsible.
    All attempts have been met with intense resistance, including charges
    of associated retaliation. As Assistant Secretary, will you support
    holding DWPP to the same standards of accountability that a business
    organization must pass? Toward that end, would you support an
    independent national audit of regional compliance with consistent
    national standards, to ensure greater accountability across the
    regional offices?
        Answer. If confirmed as Assistant Secretary, I will expect all OSHA
    directorates to maintain high professional standards.

        Question 20. Last year Secretary Perez ordered a ``top to bottom''
    investigation of DWPP, sparked by the agency's failure to act on
    whistleblower complaints in 2010 by Wells Fargo employees warning of
    the same abuses regarding fraudulent opening of accounts and other
    abuses exposed in 2016. In 2017, DOL halted the investigation. Will you
    commit to resuming a complete investigation of why DWPP failed to
    properly investigate and address whistleblower complaints at Wells
    Fargo and other financial institutions?
        Answer. If confirmed, I look forward to being briefed on this
    situation and review what actions might be necessary to correct the
    problem.

        Question 21. Delays of three to 6 years at initial DWPP
    investigations leave whistleblower rights suspended because
    whistleblowers cannot pursue a due process appeal until DWPP has ruled.
    As Assistant Secretary, would you support the authority for the DWPP to
    close a case at the complainant's request if the regional office has
    not completed its investigation within the stated regulatory deadlines?
    Alternatively, would you permit the complainant to pursue an
    administrative due process appeal if there is no decision within 60
    days, analogous to the ``kick out'' provision allowing whistleblowers
    to go to court for jury trials in there as not been final DOL action
    within 180-210 days. In general, would you support structural reform so
    that whistleblower rights are not frozen during lengthy OSHA delays?
        Answer. OSHA's twenty-two whistleblower statutes have different
    statutory requirements related to timelines and appeals. If confirmed,
    I would be committed to following the legal framework outlined in each
    of these statutes.

        Question 22. Section 11(c) of the OSH Act has more complaints than
    all other combined whistleblower statutes enforced by DOL. Yet this law
    remains as originally drafted in 1970 and is generally regarded to be
    in need of updating. The Protecting America's Workers Act would
    modernize section 11(c) by establishing consistency with the procedures
    and burdens of proof for all relevant whistleblower laws enacted since
    2002. As Assistant Secretary, would you support this reform to
    establish consistent standards within DOL-administered whistleblower
    laws?
        Answer. If I am confirmed, I would be committed to following the
    legal framework outlined by Congress to enforce OSHA's whistleblower
    statute.

        Question 23. OSHA has issued two new standards to better protect
    workers exposed to respirable crystalline silica, including one for
    construction and one for general industry and maritime. Worker
    inhalation of silica can lead to an incurable lung disease known as
    silicosis, lung cancer, chronic obtrusive pulmonary disease, and kidney
    disease. OSHA announced it will begin enforcing the standard for
    general industry and maritime on June 23, 2018. If confirmed as
    Assistant Secretary, will you commit to protecting workers against
    these life-threatening diseases through full implementation and
    enforcement of the new silica standards? Will you commit to continue
    enforcing the rule and vigorously defending the rule as written against
    all legal challenges by business groups-including not scaling back any
    portion of the rule?
        Answer. It is my understanding that on September 23, 2017, OSHA
    began enforcing the silica standard in the construction industry. I
    also understand the legal challenge related to the regulation is
    awaiting a decision by the court. If confirmed, I would examine the
    court's decision to determine how OSHA would proceed with the
    regulation.

        Question 24. As Assistant Secretary, how would you ensure the full
    implementation and enforcement of the general industry and maritime
    silica standard on the projected timeline?
        Answer. It is my understanding that on September 23, 2017, OSHA
    began enforcing the silica standard in the construction industry. OSHA
    has a variety of ways to ensure compliance with any standard the agency
    issues. If confirmed, I would work with career staff to provide
    compliance assistance, outreach, written materials, and other agency
    resources to help the regulated community achieve compliance.

        Question 25. In January 2017, OSHA issued a final rule to modernize
    the beryllium workplace exposure limit in general industry, in addition
    to the construction and shipyard trades. Beryllium is known to cause
    cancer and other fatal diseases, such as chronic beryllium disease of
    the lungs, when even very low levels are inhaled. According to OSHA,
    its beryllium rule would save 94 lives and prevent 46 new cases of
    chronic beryllium disease each year. Yet, in June 2017 OSHA issued a
    proposal to rescind all ancillary provisions from its final beryllium
    rule for construction and shipyard workers. OSHA also announced that it
    would not enforce any of the provisions in the final beryllium rule for
    construction and shipyard employers while its new proposal is under
    consideration. As Assistant Secretary, would you support withdrawal of
    OSHA's proposal to rescind the beryllium rule for construction and
    shipyard workers?
        Answer. I also understand OSHA's beryllium is facing a legal
    challenge from several industry sectors. If confirmed, I will examine
    the state of the legal issues related to implementation of the
    beryllium regulation.

        Question 26. Worker exposure to extreme heat can result in
    occupational illnesses and injuries, as severe as heat stroke and death
    if not promptly treated. NIOSH has repeatedly recommended that OSHA
    adopt a standard to protect workers from dangerous heat-related
    effects. Meanwhile, the U.S. Military and a growing number of states
    have implemented heat stress standards. As Assistant Secretary, would
    you support OSHA adopting a heat stress standard for workers?
        Answer. I believe OSHA has effective educational materials
    regarding best practices, as well as timely and effective communication
    efforts on heat illness awareness and awareness. If I am confirmed, I
    look forward to learning more about the success of these efforts and
    any additional efforts that may be needed from the Department's OSHA
    staff.

        Question 27. In the U.S., nurses and health care workers suffer
    from work-related musculoskeletal disorders (MSDs) at a rate much
    higher than the average worker. The Department of Veterans Affairs and
    a growing number of states have implemented safe patient handling
    procedures to reduce MSD injuries, and in 2015 up to a quarter of
    hospitals had adopted voluntary programs, through the use of equipment
    and training. According to OSHA, ``reducing injuries not only helps
    workers, but also will improve patient care and the bottom line.'' As
    Assistant Secretary, would you support OSHA adopting safe patient
    handling standards?
        Answer. If confirmed, I would examine the issues surrounding safe
    patient handling, existing OSHA regulations, and consult with career
    OSHA staff to determine gaps in this area.

        Question 28. In 2017 the Government Accountability Office (GAO)
    issued the report: Workplace Safety and Health: Better Outreach,
    Collaboration, and Information Needed to Help Protect Workers at Meat
    and Poultry Plants, U.S. Gov't Accountability Off., GAO-18-12, (2017).
    GAO made several recommendations to OSHA to improve the agency's
    efforts to secure safe working conditions for workers in the meat and
    poultry processing industries. On October 5, 2017, OSHA issued a
    response that stated, ``GAO's recommendation to conduct additional
    offsite interviews, however, is challenging in terms of witness
    cooperation, resources, and CSHO safety. Moreover, each inspection
    requires a flexible approach to address unique workplace hazards. OSHA
    cannot commit to routinely asking about bathroom access during each
    inspection at a meat or poultry processing facility. As we mentioned,
    OSHA does not routinely ask questions about any potential hazards that
    go beyond the scope of a complaint inspection, unless those hazards are
    in plain sight.'' See id. at Appendix III It is has been a longstanding
    OSHA practice to conduct offsite interviews when workers fear
    retaliation for cooperating with OSHA inspectors at the worksite.
    Indeed, OSHA's Field Operations Manual provides, ``If necessary,
    interviews may be conducted at locations other than the workplace.''
    See Field Operations Manual at 3-17, Occupational Safety and Health
    Administration (Aug. 2, 2016) available at https://www.osha.gov/OshDoc/
    Directive--pdf/CPL--02-00-160.pdf. Will you commit that when evidence
    suggests offsite interviews are necessary to secure witness cooperation
    or prevent retaliation, you will require such interviews?
        Answer. If confirmed, I will examine inspection protocols with
    career OSHA staff, as necessary, to determine the best approach to
    securing the information needed to complete the inspection. Inspectors
    will be expected to follow the standard operating procedures related to
    gathering evidence and witness interviews.

        Question 29. Contrary to OSHA's assertion, regarding bathroom
    access at meat or poultry processing facility inspections, CSHOs are
    already instructed to ask workers about specific topics. See id.
    (instructing CSHOs to ask workers about advance notice of OSHA
    inspections). Given GAO's deeply disturbing findings on these workers'
    access to bathrooms, do you believe that OSHA should adopt GAO's
    recommendation? If not, why not?
        Answer. If confirmed, I will examine the GAO report and discuss the
    findings with career and regional staff to understand OSHA's response.
    And, if appropriate, change the agency's position.

        Question 30. OSHA's statement that it ``does not routinely ask
    questions about any potential hazards that go beyond the scope of a
    complaint inspection, unless those hazards are in plain sight'' is
    deeply troubling. If true, it would represent a significant departure
    from OSHA's practices in carrying out Regional Emphasis Programs
    (REPs). Indeed, in an August 19, 2016 court filing, OSHA said of the
    REP for poultry processing facilities in the region that GAO focused
    on, ``The REP, in targeting 16 of the most common hazards in the
    poultry processing industry, mandates OSHA expand all unprogrammed
    inspections of poultry processors in Region IV (comprising Georgia and
    several nearby states) stemming from one of the 16 hazards to a
    programmed inspection for all 16 hazards.'' See The Secretary of
    Labor's Objections to the Report and Recommendation to Grant
    Respondent's Motion to Quash at 7-8, In the Matter of the Establishment
    Inspection of: Mar-Jac Poultry, Inc., No. 16-192 (N.D. Ga. filed Aug.
    19, 2016) (emphasis added). Further, the now-effective REP for poultry
    processing facilities in Region IV states, ``Area offices will normally
    conduct inspections for all complaints, formal or non-formal, which
    contain allegations of potential worker exposure to poultry processing
    hazards. In addition and where applicable, all unprogrammed inspections
    will be expanded to include all areas required by this emphasis
    program.'' See OSHA Regional Notice: Regional Emphasis Program (REP--
    for Poultry Processing Facilities CPL 18/09 (CPL 04) at 3, Occupational
    Safety and Health Administration (Oct. 30, 2017) (emphasis added)
    available at https://www.osha.gov/dep/leps/RegionIV/.
        Will you commit that, if confirmed, you will continue to expand
    unprogrammed inspections as outlined under the emphasis program?
        Answer. If confirmed, I will examine the GAO report and discuss the
    findings with career and regional staff to understand OSHA's response.
    And, if appropriate, change the agency's position.

        Question 31. During your tenure at FedEx, the company opposed
    provisions in the Dodd Frank law to strengthen Sarbanes Oxley
    whistleblower protections. Please describe how FedEx has complied with
    the Sarbanes Oxley requirement that every publicly traded corporation
    have a whistleblower hotline to the Audit Committee of its Board of
    Directors. What is its record of results, including the volume of
    disclosures and the number of corrective actions?
        Answer. FedEx is committed to legal compliance, including
    prohibiting any form of retaliation. Information about the FedEx
    Whistleblower Program and FedEx Alert line is available on its Investor
    Relations web page under Governance and Citizenship.

        Question 32. Do you agree with the goals of OSHA's silica and
    beryllium standards, being to reduce the incidence of lung disease
    caused by exposure to silica and beryllium?
        Answer. OSHA's permissible exposure limits are designed to reduce
    worker exposure to harmful chemicals.

        Question 33. Under the Obama administration, OSHA pursued robust
    transparency in enforcement by issuing press releases detailing
    enforcement actions taken and citations issued by the agency. Should
    DOL continue to issue press releases detailing enforcement actions and
    citations? Do you believe transparency can have a deterrent effect?
        Answer. If done with transparency, consistency, and fairness, yes,
    issuing press releases can be an effective communication tool.

        Question 34. In June 2010, OSHA initiated the Severe Violator
    Enforcement Program (SVEP), which identifies companies that have
    repeated serious violations of health and safety standards. Do you
    support the SVEP? Should OSHA continue the SVEP?
        Answer. The Severe Violator Enforcement Program can be an effective
    tool in improving safety and health in certain workplaces provided it
    is transparent, consistent, and fair.

        Question 35. OSHA relies on its Special Emphasis Programs to
    respond to workplace safety problems that are unique to or unacceptably
    prevalent in particular industries, regions, or local areas. These
    programs ensure that OSHA is using its enforcement resources in a
    targeted, effective manner to combat hazards causing worker injuries
    and deaths where they are most likely to occur. Do you support the use
    of Special Emphasis Programs? Will you commit to use new Special
    Emphasis Programs when data suggest dangerous safety trends in
    particular industries or regions?
        Answer. Special Emphasis Programs can be an effective tool in
    improving safety and health in certain industries, regions, or local
    areas provided they are transparent, consistent, and fair.

        Question 36. In January of this year, OSHA issued a rule to protect
    workers from unsafe exposure to beryllium, which is linked to lung
    cancer and chronic beryllium disease. However, under President Trump,
    OSHA has proposed weakening the rule. OSHA has proposed revoking the
    additional protections the rule affords workers beyond establishing a
    permissible exposure limit. These protections--called ``ancillary
    provisions''--include requirements for exposure assessment, methods for
    controlling exposure, respiratory protection, personal protective
    clothing and equipment, housekeeping, medical surveillance, hazard
    communication, and recordkeeping. Will you commit to a thorough review
    of the comments submitted in response to this proposal? If credible
    evidence suggests that revoking the requirements of the ancillary
    measures could lead to increased exposure to unsafe concentrations of
    beryllium, will you refuse to move forward with any such revocation?
        Answer. I understand OSHA's beryllium regulation is facing a legal
    challenge from several industry sectors. If confirmed, I will examine
    the state of the legal issues related to implementation of the
    beryllium regulation.

        Question 37. This January, OSHA determined that workers exposed to
    beryllium are at a significant risk of developing chronic beryllium
    disease (CBD) and lung cancer. How serious do you consider beryllium-
    caused cancer? Should combating it be high on OSHA's priority list?
        Answer. I take all exposure limit issues seriously. I do not intend
    to prioritize one chemical over another, but work to ensure all OSHA
    standards are protective of employees.

        Question 38. For fiscal year 2016, the average initial Federal OSHA
    penalty for a serious violation was about $5,100, reduced to an average
    of $2,400 after settlement. A serious violation under the OSH Act is a
    condition that presents a substantial probability of causing death or
    serious physical harm. In cases involving fatalities, the typical total
    penalty was $7,000. Do you believe that $2,400 for a serious violation,
    or $7,000 for a violation involving the death of a worker, is too high?
        Answer. No.

        Question 39. In 2015, all workplaces in states under Federal OSHA
    (as opposed to state run OSHAs, which started this approximately a year
    later) began reporting to OSHA every incidence of a severe work related
    injury to their employees-such as an amputation or an injury or illness
    that required that the worker be hospitalized. In the first 2 years of
    reporting from the 29 states under Federal OSHA, FedEx had the 7th
    highest number of severe injuries reported, As FedEx Ground's Vice
    President of Safety, Sustainability and Vehicle Maintenance, what
    additional steps if any did you take to address this injury rate?
        Answer. FedEx provides information and training to its station
    management regarding how to respond to serious accidents. First and
    foremost, that information and training is geared toward ensuring the
    injured individual receives prompt and proper treatment. Additionally,
    FedEx cooperates with law enforcement and investigating agencies in
    connection with their investigation of the accident, and FedEx conducts
    their own review of the accident to identify possible root causes,
    which FedEx then address to ensure a similar accident does not occur in
    the future.

        40. A review of FedEx enforcement history and search of OSHA's
    inspection data base shows that since 2001 there were more 300 Federal
    and state OSHA inspections of FedEx facilities that resulted in one of
    more violations of OSHA standards. In almost every case where FedEx has
    been cited for violations of OSHA standards, including in cases of
    employee fatalities, the company has contested these citations. Is it
    your policy to contest OSHA violation citations? If so why?
        Answer. FedEx is committed to cooperating fully with OSHA, and it
    evaluates each OSHA citation on a case-by-case basis. It is not FedEx's
    policy to contest OSHA violation citations.
        41. Please provide the amount of fines and penalties assessed to
    FedEx by OSHA between 2001 and the present, along with the amount of
    fines and penalties paid after contesting and appealing those
    citations.
        Answer. Information responsive to this question is publicly
    available and can be obtained on OSHA's website, at the following link:
    https://www.osha.gov/pls/imis/establishment.html
        Question 42. FedEx has experienced three fatalities in as many
    years. What did you learn, and what steps did you take in response to
    these tragedies to better protect your employees and improve your
    company's safety program?
        Answer. FedEx has invested in sustaining robust training and daily
    communications programs designed to raise awareness of potential safety
    issues and industry best safety practices. FedEx's training and
    communications are routinely updated to incorporate key learnings and
    latest developments that could impact workplace safety and health.

        Question 43. OSHA previously had as part of its regulatory agenda
    creating a standard preventing workers from being hit and run over by
    vehicles that are backing up. However, OSHA under the Trump
    administration removed that standard from its agenda. Please provide
    the steps that FedEx takes to address the risk of injury from vehicles
    that are backing up, including whether FedEx vehicles have backup
    cameras.
        Answer. Many FedEx trucks have backup cameras, and FedEx champions
    the adoption of numerous transportation safety technologies proven to
    reduce accidents and make our workplaces and highways safer. FedEx
    supports Federal mandates for proven transportation safety technology,
    where those mandates are clear, practical and have reasonable timelines
    for implementation.

        Question 44. In written comments filed with OSHA in March 2010 in
    response to a request for views from stakeholders on OSHA programs and
    policies, you recommended that OSHA, ``Balance the `stick and carrot'
    '' and ``favor carrot use.'' As Assistant Secretary, what specific
    steps will you take to better encourage use of the ``carrot''?
        Answer. As I mentioned in my testimony, both compliance assistance
    and enforcement are necessary tools, but they are not mutually
    exclusive. As specified in the OSH Act, OSHA operates a balanced
    program of enforcement, compliance assistance, training, outreach, and
    voluntary collaborative programs to maximize its effectiveness. I would
    work with career staff to provide compliance assistance, outreach,
    written materials, and other agency resources to help the regulated
    community achieve compliance.
        Question 45. FedEx Ground operations depend on the services of tens
    of thousands of drivers who are either independent contractors or work
    for independent service providers.
            a. Does FedEx have safety and health standards or policies that
            it requires these contractors to follow, and if so what are
            those standards and policies?
            b. Are they part of a written agreement between FedEx and its
            contractors?
            c. Does FedEx conduct oversight to determine if these standards
            and policies are complied with? If so, how is this oversight
            conducted?
            d. How are these standards and policies enforced?
        Answer. FedEx Ground contracts with nearly 6,000 locally owned
    businesses for various transportation, pickup and delivery services.
    Each of these businesses contractually agrees to incorporate a safety
    program and to comply with all applicable Federal and state laws
    regarding the safety of their operations and the well-being of their
    employees. FedEx Ground is proud of the fact that its innovative
    business model has enabled thousands of entrepreneurs to own
    independent businesses while providing a valued service to millions of
    customers. FedEx reviews vendor relationships for contract compliance.
    FedEx takes appropriate action responding to businesses that do not
    fulfill contractual safety requirements, up to and including contract
    termination.

        Question 46. Regarding the role of OSHA enforcement, in your view,
    were the enforcement policies followed by the Obama administration too
    aggressive or appropriate? If too aggressive, explain in what way and
    list what specific enforcement policies you believe to have been too
    aggressive.
        Answer. Enforcement is only one ``tool'' OSHA has to improve
    workplace safety and health. The question is whether that tool is being
    used as efficiently and effectively as possible--along with the other
    tools it has at its disposable--in pursuing OSHA important mission. If
    confirmed, I look forward to discussing this and many other issues with
    the Department's OSHA staff.

        Question 47. The National Institute for Occupational Safety and
    Health has linked a deadly lung disease known as `popcorn lung' to an
    artificial butter flavoring chemical called diacetyl. In recent years,
    OSHA has failed to issue a standard to protect workers from exposure to
    diacetyl, relying on the OSH Act's General Duty Clause to cite
    employers regarding diacetyl overexposures. Will you support an OSHA
    standard to minimize worker exposure to diacetyl?
        Answer. If confirmed, I will consult with career staff to examine
    what action the agency has taken to minimize worker exposure to
    diacetyl.

        Question 48. Do you commit to inform the members of this Committee
    if you intend to undertake any review or revision of any existing
    guidance?
        Answer. If confirmed, I will follow the law as it relates to public
    rulemaking and guidance changes.

        Question 49. What is your opinion about whether minority members of
    the HELP Committee have the authority to conduct oversight of OSHA?
        Answer. It is my understanding that various committees and their
    members, spanning both chambers of Congress, have jurisdiction over the
    Department of Labor and its constituent agencies, such as OSHA,
    including an oversight role in addition to legislative, budgeting and,
    in the case of the Senate, the advice and consent role for nominations.

        Question 50. If confirmed, do you agree to provide briefings to
    members of the HELP Committee, including minority members, if
    requested?
        Answer. If confirmed, I look forward to maintaining an open dialog
    with you and your congressional colleagues regarding all aspects within
    OSHA.
        Question 51. If confirmed, do you commit to answer promptly any
    letters or requests for information from individual members of the HELP
    Committee including request for OSHA documents, communications, or
    other forms of data?
        Answer. If confirmed, I will provide responses to all Members of
    Congress.

                               senator whitehouse
        Question 1. Please list the OSHA rules issued under the previous
    Administration that you supported and continue to support.
        Answer. As I mentioned in my testimony, if no comments were
    submitted to any proposed rule there were no concerns.

        Question 2. Given your extensive history and experience working for
    employers, what assurances can you provide that you will adequately
    undertake enforcement activities to protect employees and the public
    interest?
        Answer. As a safety professional I have worked every day to ensure
    the safety and health of our company's employees. Along with my safety
    teams, we have established policies and procedures to meet or exceed
    compliance with all applicable safety and health regulations to include
    Federal DOT, FAA, and OSHA regulations.

        Question 3. Please list the three most significant cases in which
    you successfully obtained relief for an individual who brought a claim
    against an employer. Why were those cases significant to you?
        Answer. Given my position for the last 17 years, I'm not sure I
    understand the nature of the question.

        Question 4. Please detail a safety issue from your experience that
    put employers and employees (or their representatives) at odds with one
    another.
        Answer. I have always advocated for an inclusive approach to safety
    issues.

        Question 5. Do you commit to not using non-commercial airplane or
    helicopter travel paid for at taxpayer expense?
        Answer. If confirmed, I will fully comply with all Federal
    Government travel policies.
                                senator baldwin
        Mr. Mugno, as I mentioned at your nomination hearing, I have been
    extensively involved in calling OSHA's attention to Greif Inc. and its
    subsidiary, Mid-America Steel Drum Company, a barrel refurbishing
    company with operations in Wisconsin. I was disappointed that you did
    not provide complete answers to my questions at the hearing, despite
    advanced materials on the matter being supplied to Department of Labor
    Legislative Affairs. As I mentioned, I have faced significant
    challenges when trying to bring the workplace safety issues at the
    company to the attention of OSHA. My experience has given me the
    impression of an agency that appears hesitant to use its statutory
    authority to its fullest extent. I'd like to ask you some questions
    about what you will do to address my concerns.
        Question 1. How will you encourage OSHA staff to use their
    statutory authority to its fullest extent and encourage staff to issue
    violations that are sufficient to protect workers and incentivize
    employers to comply with the law?
        Answer. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff and working with them to
    make certain that the appropriate measures are in place to help ensure
    the safety of all workers. As specified in the OSH Act, OSHA operates a
    balanced program of enforcement, compliance assistance, training,
    outreach and voluntary collaborative programs to maximize its
    effectiveness.

        Question 2. Do you believe OSHA's investigation into Mid-America
    Steel Drum and its parent company Greif Inc. have been carried out
    thoroughly and efficiently?
        Answer. I am not sufficiently familiar with the specific facts
    regarding OSHA's case to provide an informed answer on this specific
    matter. My knowledge of this matter is only limited to news reports. If
    confirmed, I will discuss this with the Department's OSHA staff.

        Question 3. If you were Administrator, how would you have handled
    the referrals to investigate the additional facilities differently?
        Answer. I am not sufficiently familiar with the specific facts
    regarding OSHA's case to provide an informed answer on this specific
    matter. It would be necessary for me to review the case files to
    understand what actions were (or were not) taken by OSHA and why.

        Question 4. If confirmed, will you agree to prioritize the
    investigation into this company?
        Answer. If confirmed, I look forward to learning more about the
    events and history surrounding this case and working with OSHA staff to
    make certain that the appropriate prioritizations for inspections are
    in place to help ensure worker safety.
        Question 5. If confirmed, will you commit to examining the referral
    process that delayed inspections into the St. Francis and Oak Creek
    facilities for months?
        Answer. Yes.

        Question 6. I have called on OSHA to expand its investigation of
    Greif to include barrel refurbishing operations nationwide, as the
    Department of Transportation has already done. If confirmed, will you
    expand the investigation to all Greif barrel refurbishing facilities
    throughout the nation?
        Answer. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff and working with them to
    make certain that the appropriate prioritizations for inspections are
    in place to help ensure worker safety.

        Question 7. In April, OSHA cited Mid-America Steel Drum for 15
    `serious' violations at its Milwaukee facility. The violations included
    the mixing of unknown reactive chemicals and exposing employees to
    reactive chemical hazards. Audio recordings of the corporate safety
    manager, provided by a whistleblower, suggested the violations were
    willful. However, OSHA declined to cite the company for willful
    violations, claiming the recordings (just 2 years old) could not be
    included as part of the current investigation. This was in spite of the
    fact that the recordings showed that the current violations were the
    same ones that OSHA had previously called on the company to fix 2 years
    prior. It appears that OSHA is looking for reasons to avoid issuing
    willful citations as opposed to pursuing the evidence that points to a
    willful violation.
            a. Do you believe that repeating the same violation that a
            company was previously penalized for constitutes a willful
            violation?
            b. How would you utilize the authority to issue willful
            violations?
        Answer. I am not sufficiently familiar with the specific facts
    regarding OSHA's case to provide an informed conclusion on this
    question. As a general matter, I believe there would be a number of
    factors to consider. If confirmed, I look forward to discussing this
    with the Department's OSHA staff.
                                 senator warren
        Question 1. Even when OSHA is fully funded, it cannot inspect every
    workplace every year. What types of inspections will be the highest
    priority to OSHA, and which industries will you prioritize?
            a. What data will you use to make such determinations?
        Answer. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff. Clearly a prioritization
    process must be used to address the highest risks responsible for the
    highest number of fatalities and serious injuries occurring. The
    prudent approach in addressing these is using the appropriate ``tools'
    provided under the OSH Act--enforcement, compliance assistance,
    training, outreach, and voluntary collaborative programs--in order to
    maximize life saving effectiveness and improvement. Timely actionable
    accurate data is key in making these decisions.

        Question 2. What metrics will you use to assess the effectiveness
    of the OSHA's enforcement efforts?
        Answer. Timely actionable accurate data is key in identifying and
    setting the appropriate metrics, and determining their effectiveness,
    when using all the ``tools' provided under the OSH Act--enforcement,
    compliance assistance, training, outreach, and voluntary collaborative
    programs. If confirmed, I look forward to discussing this and many
    other issues with the Department's OSHA staff.

        Question 3. Will you continue ongoing debarment proceedings against
    Federal contractors who have violated the law?
        Answer. If confirmed, I will follow the Departments procedures
    regarding debarment actions for Federal contracting.

        Question 4. Will you promise to continue the Department's ongoing
    investigation of OSHA whistleblower violations at Wells Fargo?
        Answer. If confirmed, yes, I look forward to being briefed on this
    situation and review what next actions might be necessary.

        Question 5. Will you commit to pursue all penalties allowed by law
    for employers who put their workers in harm's way?
            a. Will you commit to pursuing criminal penalties, including
            jail time, for employers who willfully violate OSHA and cause
            the death of an employee?
        Answer. As I stated in my testimony before the committee, if
    confirmed, yes, I will work with the Solicitor's Office and the
    Department of Justice when facts and circumstances warrant.

        Question 6. In June, OSHA's new Silica Rule, which will save
    hundreds of lives by protecting the 2.3 million workers exposed to
    silica in their workplaces from diseases like silicosis and lung
    cancer, went into effect, and enforcement in the construction industry
    has begun.\1\ Will you commit to ensuring that the upcoming compliance
    date for Maritime and General Industry are implemented as currently set
    forth in the final rule?
    ---------------------------------------------------------------------------
        \1\ ``OSHA's Final Rule to Protect Workers from Exposure to
    Respirable Crystalline Silica.'' Occupational Safety and Health
    Administration. United States Department of Labor. Online at: https://
    www.osha.gov/silica/factsheets/OSHA--FS-3683--Silica--Overview.html.
    ---------------------------------------------------------------------------
            a. Will you commit to enforcing this rule and inspecting
            workplaces to ensure that this rule is being properly
            implemented?
        Answer. On September 23, 2017, OSHA began enforcing the silica
    standard in the construction industry. The court challenge related to
    the regulation is awaiting a decision by the court. If confirmed, I
    would examine the court's decision to determine how OSHA would proceed
    with the regulation.

        Question 7. On February 22, the Senate repealed OSHA's ``Volks
    Rule'' using a resolution of disapproval under the congressional Review
    Act. The rule clarifies OSHA's authority to hold employers accountable
    for their continuing obligation to maintain accurate injury and illness
    records for 5 years. As a result, underreporting of workplace injuries
    and illnesses will skyrocket and the odds that a worker is increased on
    the job will increase.
            a. If confirmed, how will you enforce OSHA's recordkeeping
            requirements in the absence of this important rule?
            b. How will you ensure that the DOL's statistics on workplace
            injury rates remain accurate, considering that employers will
            not be required to maintain accurate records after 6 months?
        Answer. It is my understanding the Occupational Safety and Health
    Act continues to require employers to maintain records for 5 years and
    the DC Circuit Court only overturned an attempt to apply a continuing
    violation that would have exceeded the Act's 6-month statute of
    limitations. If confirmed, however, I look forward to discussing these
    and many other issues with the Department's OSHA staff to ensure
    employers comply with the law regarding the recording and recordkeeping
    of injuries and illnesses in the workplace in order to ensure all
    workers are protected.

        Question 8. Now that congressional Republicans and President Trump
    have rescinded the Fair Pay and Safe Workplaces Executive Order, what
    authorities does OSHA have to ensure that contracting agencies have
    access to and can consider prior labor violations in procurement
    decisions (as Federal law and acquisition regulation requires)?\2\ Will
    you implement these authorities?
    ---------------------------------------------------------------------------
        \2\ 41 U.S.C. Sec. 6706; 41 U.S.C. Sec. 6504; 41 U.S.C. Sec. 3144;
    Manuel, K. ``Responsibility Determinations Under the Federal
    Acquisition Regulation: Legal Standards and Procedures.'' congressional
    Research Service (January 4, 2013). Online at: https://fas.org/sgp/crs/
    misc/R40633.pdf.
    ---------------------------------------------------------------------------
        Answer. OSHA enforcement actions are publicly available on the OSHA
    website. If confirmed, I will ensure this data base continues to remain
    public while being transparent, consistent, and fair. I will also
    ensure OSHA is available to address inquiries from the agency's Federal
    partners regarding such information.

        Question 9. Some large Federal contractors have reportedly
    continued receiving large Federal contracts after being caught
    committing serious violations of labor laws, in some cases resulting in
    the deaths of workers, but, during your confirmation hearing, you did
    not clarify whether you believe these companies should be eligible for
    additional Federal contracts.\3\
    ---------------------------------------------------------------------------
        \3\ https://www.revealnews.org/blog/u-s-navy-coast-guard-continue-
    awarding-contracts-to-vt-halter-despite-safety-lapses/
    ---------------------------------------------------------------------------
            a. Do you believe that the Department of Labor should award
            contracts to companies that have violated health and safety
            laws?
            b. If you believe that violators should in some cases be
            eligible for contracts, what specific criteria should the
            government use to assess their eligibility?
            c. Will you commit to informing contracting officers in other
            government agencies of OSHA violations committed by companies
            bidding on Federal contracts?
        Answer. Federal procurement laws govern the selection of Federal
    contractors. If confirmed, I will follow the law to provide the
    agency's Federal partners information needed to meet those contracting
    laws.

        Question 10. Please describe your views on the role of public
    information on specific OSHA violations in safety and health law
    enforcement, especially to deter future violations.
            a. Will you commit to preserving all existing public sources of
            data on OSHA inspections and labor law violations?
            b. For the first several months of the Trump administration,
            OSHA broke with longstanding practice, with no public
            explanation, by almost completely halting public press releases
            related to serious violations of health and safety laws. While
            OSHA has begun issuing some press releases regarding violations
            since May, it appears to be doing so at a far less frequent
            rate than it did during the previous administration.
                    i. Do you believe that public press releases on serious
                    OSHA violations are beneficial to America's employers
                    and workers?
                    ii. If confirmed, will you commit to ensuring that OSHA
                    issues a press release every time a company is cited
                    for a major violation, as previous Democratic and
                    Republican administrations have done?
                            1. If not, why not?
        Answer. As I stated in the hearing, the use of press releases and
    other such communications are useful education and awareness tools. If
    confirmed, I look forward to discussing this with the Department's OSHA
    staff with a particular focus on transparency, consistency, and
    fairness in the use of these tools.

        Question 11. In addition to issuing fewer press releases, OSHA
    removed from its homepage a list of names of workers who died on the
    job, other data on workplace deaths, and a video explaining workers'
    right to request an inspection.
            a. Do you believe that concealing this information is conducive
            to deterring OSHA violations? Do you believe that it encourages
            or discourages to report violations and request inspections?
            b. Will you commit to recommitting OSHA to full transparency
            and reversing these decisions to hide data and useful
            information for workers?
        Answer. If confirmed, I will discuss this with the Department's
    OSHA staff and examine these actions with a focus on transparency,
    consistency, fairness, and any privacy concerns for a worker or their
    family.

        Question 12. Will you commit to enforce occupational health and
    safety regulations against The Trump Organization if the company
    violates these laws and harms its employees?
        Answer. If confirmed, I will enforce occupational health and safety
    regulations on all entities OSHA has jurisdiction to do so.

        Question 13. What is your specific plan for insulating yourself and
    OSHA from conflicts of interest related to OSHA actions that may impact
    the Trump Organization?
        Answer. If confirmed, I will enforce occupational health and safety
    regulations on all entities OSHA has jurisdiction to do so.

        Question 14. Will you commit to recusing yourself from any OSHA
    inspections or enforcement actions related to FedEx? What is your
    specific plan for insulating yourself from any conflicts of interest
    related to your former employer?
        Answer. The ethics agreement letter I signed addresses this issue
    and I will abide by it. Recusal from such actions is just common sense.
    If confirmed, I will fully comply with all Federal Government ethics
    policies, including conflict of interest policies, and will rely on the
    Department's Designated Agency Ethics Officer for guidance.

        Question 15. Do you support President Trump's proposed elimination
    of the Susan Harwood Training Grants program, which provides workers in
    dangerous jobs with life-saving information such as how to protect
    themselves from chemical hazards, prevent falls, and guard themselves
    against dangerous machines?\4\
    ---------------------------------------------------------------------------
        \4\ https://www.bna.com/no-deep-cuts-n73014451453/
    ---------------------------------------------------------------------------
            a. If so, why?
            b. If not, will you commit to aggressively advocating for
            funding for these grants?
        Answer. As a nominee, I have not participated in any budget
    discussions. Additionally, my familiarity with this program is limited.
    If confirmed, I will confer with Department's OSHA staff to learn more
    about the program.

        Question 16. In 2005, the U.S. Chamber of Commerce expressed
    support for a bill that would, according to the Chamber, ``give
    employers an incentive to use independent safety consultants to conduct
    inspections and assist in fixing workplace safety problems.''\5\ Do you
    believe that it is a good idea for the government to allow safety
    inspections to be conducted by consultants paid by employers, rather
    than OSHA inspectors?
    ---------------------------------------------------------------------------
        \5\ https://www.uschamber.com/press-release/us-chamber-supports-
    senate-osha-reform-measures
    ---------------------------------------------------------------------------
            a. If not, will you commit to publicly advocating against such
            policies if you are confirmed?
        Answer. I stated in my opening statement before the committee, that
    by leading and facilitating transparent discussions between all safety
    professionals--the career experts at OSHA, as well as those from the
    various sectors--OSHA could improve safety and health in workplaces
    quicker. If confirmed, I would encourage all ideas and proposals--such
    as the one mentioned above--to learn if it could effectively and
    efficiently expand the OSHA toolbox to improve workplace safety and
    health.

        Question 17. The Chamber also supported a bill that would,
    according to the Chamber ``give employers the right to correct a
    violation within 72 hours before a citation could be issued.''\6\ Do
    you believe that employers in violation of OSHA should be able to avoid
    receiving a citation just by rectifying the violation within several
    days?
    ---------------------------------------------------------------------------
        \6\ Id.
    ---------------------------------------------------------------------------
            a. If not, will you commit to publicly advocating against such
            policies if you are confirmed?
        Answer. Again, as stated above and if confirmed, I would lead in a
    manner that would encourage all ideas and proposals that could
    effectively and efficiently improve safety and health in the
    workplaces. If ever considered, such a specific proposal would have to
    require specific use or non-use criteria. I would look forward to
    learning more from the career OSHA safety professionals as well as
    other offices in the Department on any such proposal.

        Question 18. You reportedly said in 2006 that ``We've got to free
    OSHA from its own statutory and regulatory handcuffs'' and that OSHA
    should consider sunsets for some regulations.\7\ If you still believe
    this, please list:
    ---------------------------------------------------------------------------
        \7\ http://www.businessinsurance.com/article/20060521/ISSUE01/
    100018988
    ---------------------------------------------------------------------------
            a. All statutes that you believe OSHA should be ``freed'' from;
            b. All OSHA regulations that you believe should be revoked; and
            c. All regulations that you believe should be subject to sunset
            provisions.
        Answer. I am an advocate for periodic review of all safety and
    health standards. I contend this is necessary so standards do not
    become problematic or ineffective. However, if they do become outdated,
    then they should be revisited, revised, or retired. Permissible
    exposure limits (PELs) are an example of requirements in need of this
    attention. The fast changing workplace along with technologies not
    envisioned when many regulations were implemented may dictate some
    regulations be revisited, revised, or retired.

        Question 19. At an ``OSHA Listens'' meeting in 2010, you said that
    OSHA should balance the ``stick and carrot'' but favor use of the
    carrot. Could you explain what you meant by this?
            a. Do you believe that OSHA has the statutory authority to
            prioritize ``carrot use'' over enforcement? If so, where?
        Answer. As I mentioned in my testimony, both compliance assistance
    and enforcement are necessary tools, but they are not mutually
    exclusive. As specified in the OSH Act, OSHA is authorized to use
    enforcement, compliance assistance, training, outreach, and voluntary
    collaborative programs to maximize its effectiveness. These multiple
    avenues currently exist for OSHA and employers to engage with each
    other in their mutual goal to improve workplaces. They include the
    Alliance Program, The Strategic Partnership program, the Voluntary
    Protection Program, the Challenge program, and the SHARP program. The
    balanced use and expansion of all these effective tools should be
    encouraged and supported.

        Question 20. In 2014, a Federal judge ruled that FedEx's policy
    requiring workers to call their supervisors before seeking medical
    treatment for injuries on the job was illegal.\8\
    ---------------------------------------------------------------------------
        \8\ http://www.wci360.com/news/article/judge-upbraids-fedex-over-
    work-injury-rules
    ---------------------------------------------------------------------------
            a. Were you involved in the creation or enforcement of this
            policy?
            b. Do you believe that such policies are more likely to help or
            hurt the safety and health of workers?
            c. How if it all do you believe OSHA should revise its policies
            to ``look harder at the employee?''
        Answer. The facts in this matter occurred prior to my arrival at
    FedEx Ground. Additionally, FedEx's policy prohibits retaliation and
    provides employees multiple avenues to report concerns that they are
    being retaliated against for reporting a workplace injury or for
    seeking medical treatment for a workplace injury.

                                 senator hatch
        Question 1. You have spoken much about a position in which I agree
    strongly, that OSHA should be focused on compliance assistance, rather
    than harsh enforcement. However, whenever a workplace runs afoul law
    and causes serious injury or repeatedly does not take steps to be in
    compliance, enforcement and penalty must step in. With the Severe
    Violator Program (SVEP), please share with me the process you will take
    to reexamine the features to create the right balance of enforcement
    and compliance.
        Answer. As I mentioned in my testimony, both compliance assistance
    and enforcement are necessary tools in ensuring regulatory compliance
    and safe and healthy workplaces for America's workers. However, those
    tools are not mutually exclusive. As specified in the OSH Act, OSHA is
    authorized to use enforcement, compliance assistance, training,
    outreach, and voluntary collaborative programs to maximize its
    effectiveness. These multiple avenues currently exist for OSHA and
    employers to engage with each other in their mutual goal to improve
    workplace safety and health. They include the Alliance Program, The
    Strategic Partnership Program, the Voluntary Protection Program, the
    Challenge Program, and the SHARP Program. The balanced use and
    expansion of all these effective tools should be encouraged and
    supported. Concerning the Severe Violator Enforcement Program (SVEP),
    it too can be an effective tool in ensuring compliance and improving
    safety and health in certain workplaces provided it is used in a
    transparent, consistent, and fair manner.
                                     ______

        [Whereupon, at 12:15 p.m., the hearing was adjourned.]

                                       [all]