[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

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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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          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\
---------------------------------------------------------------------------
    \2\ http://www.govexec.com/management/2017/04/former-labor-
statistics-chief-warns-trump-against-budget-cuts/137252/
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \3\ https://www.washingtonpost.com/news/wonk/wp/2017/03/10/19-
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
---------------------------------------------------------------------------
        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?
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    \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.
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        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?
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    \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.
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    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\
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    \3\ https://www.revealnews.org/blog/u-s-navy-coast-guard-continue-
awarding-contracts-to-vt-halter-despite-safety-lapses/
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        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\
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    \4\ https://www.bna.com/no-deep-cuts-n73014451453/
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        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?
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    \5\ https://www.uschamber.com/press-release/us-chamber-supports-
senate-osha-reform-measures
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        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?
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    \6\ Id.
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        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:
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    \7\ http://www.businessinsurance.com/article/20060521/ISSUE01/
100018988
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        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\
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    \8\ http://www.wci360.com/news/article/judge-upbraids-fedex-over-
work-injury-rules
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        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]