[Senate Hearing 117-193]
[From the U.S. Government Publishing Office]
S. Hrg. 117-193
NOMINATIONS OF CATHERINE
LHAMON, ELIZABETH BROWN,
AND ROBERTO RODRIGUEZ
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE NOMINATIONS OF CATHERINE ELIZABETH LHAMON, OF CALIFORNIA,
TO BE ASSISTANT SECRETARY FOR CIVIL RIGHTS, WHO WAS INTRODUCED BY
SENATOR MURRAY, ELIZABETH MERRILL BROWN, OF MARYLAND, TO BE GENERAL
COUNSEL, WHO WAS INTRODUCED BY SENATOR VAN HOLLEN, AND ROBERTO JOSUE
RODRIGUEZ, OF THE DISTRICT OF COLUMBIA, TO BE ASSISTANT SECRETARY FOR
PLANNING, EVALUATION, AND POLICY DEVELOPMENT, WHO WAS INTRODUCED BY
FORMER REPRESENTATIVE GEORGE MILLER, ALL OF THE DEPARTMENT OF EDUCATION
__________
JULY 13, 2021
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-773 PDF WASHINGTON : 2023
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
PATTY MURRAY, Washington, Chair
BERNIE SANDERS (I), Vermont RICHARD BURR, North Carolina,
ROBERT P. CASEY, JR., Pennsylvania Ranking Member
TAMMY BALDWIN, Wisconsin RAND PAUL, M.D., Kentucky
CHRISTOPHER S. MURPHY, Connecticut SUSAN M. COLLINS, Maine
TIM KAINE, Virginia BILL CASSIDY, M.D., Louisiana
MAGGIE HASSAN, New Hampshire LISA MURKOWSKI, Alaska
TINA SMITH, Minnesota MIKE BRAUN, Indiana
JACKY ROSEN, Nevada ROGER MARSHALL, M.D., Kansas
BEN RAY LUJAN, New Mexico TIM SCOTT, South Carolina
JOHN HICKENLOOPER, Colorado MITT ROMNEY, Utah
TOMMY TUBERVILLE, Alabama
JERRY MORAN, Kansas
Evan T. Schatz, Staff Director
David P. Cleary, Republican Staff Director
John Righter, Deputy Staff Director
C O N T E N T S
----------
STATEMENTS
TUESDAY, JULY 13, 2021
Page
Committee Members
Murray, Hon. Patty, Chair, Committee on Health, Education, Labor,
and Pensions, Opening statement................................ 1
Burr, Hon. Richard, Ranking Member, a U.S. Senator from the State
of North Carolina, Opening statement........................... 3
Van Hollen, Hon. Chris, a U.S. Senator from the State of
Maryland, Statement............................................ 6
Miller, Hon. George, a U.S. Congressmen from the State of
California, Statement.......................................... 8
Witnesses
Lhamon, Catherine, Takoma Park, MD............................... 10
Prepared statement........................................... 11
Brown, Elizabeth, Bethesda, MD................................... 12
Prepared statement........................................... 13
Rodriguez, Roberto, Washington, DC............................... 14
Prepared statement........................................... 16
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.
Murray, Hon. Patty:
Letters in support of the Catherine Lhamon, Elizabeth Brown,
and Roberto Rodriguez Nominations.......................... 37
Collins, Hon. Susan:
Letter in support of the Catherine Lhamon Nomination......... 96
Burr, Hon. Richard:
Letters in opposition to the Catherine Lhamon Nomination..... 98
NOMINATIONS OF CATHERINE
LHAMON, ELIZABETH BROWN,
AND ROBERTO RODRIGUEZ
----------
July 13, 2021
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
430, Dirksen Senate Office Building, Hon. Patty Murray, Chair
of the Committee, presiding.
Present: Senators Murray [presiding], Casey, Baldwin,
Murphy, Kaine, Hassan, Smith, Rosen, Lujan, Hickenlooper, Burr,
Collins, Cassidy, Murkowski, Marshall, and Tuberville.
OPENING STATEMENT OF SENATOR MURRAY
The Chair. Good morning. The Senate Health, Education,
Labor, and Pensions Committee will please come to order. Today,
we are holding a hearing on the nominations of Catherine Lhamon
to serve as Assistant Secretary for Civil Rights at the
Department of Education, Roberto Rodriguez to serve as
Assistant Secretary for Planning, Evaluation and Policy
Development, and Lisa Brown to serve as General Counsel.
Ranking Member Burr and I will each have an opening
statement and then we will introduce our witnesses. After the
witnesses give their testimony, Senators will each have 5
minutes for a round of questions. And while we were again
unable to have the hearing fully open to the public or media
for in-person attendance, live video is available on our
Committee website at help.senate.gov. And if you are in need of
accommodations, including closed captioning, you can reach out
to our Committee or the Office of Congressional Accessibility
Services. We received Ms. Lhamon's formal nomination on May
13th, her Office of Government Ethics paperwork, including her
public financial disclosures and ethics agreement on May 24th,
and her Committee paperwork on May 28th.
We received Mr. Rodriguez's formal nomination on April
29th, his Office of Government Ethics paperwork on June 8th,
and his Committee paperwork on May 24th. And we received Ms.
Brown's formal nomination on May 27th, her Office of Government
Ethics paperwork on June 9th, and her Committee paperwork on
June 10th. I would like to thank all of our witnesses for
joining us and also welcome their families, Ms. Lhamon's
husband, Giev Kashkooli, Mr. Rodriguez's wife, Rosio Rodriguez
and their two children, and Ms. Brown's husband, Kevin Cullen.
We have three excellent nominees before us today, each with a
track record showing they are experienced, committed to serving
students, and exactly who we need in these roles.
In 2013, Ms. Lhamon was confirmed by voice vote to be the
Assistant Secretary for Civil Rights, the same position she is
nominated for now. As Assistant Secretary, she proved herself
as a champion for all students through her work to protect
students' civil rights, combat sexual assault, and more. She
continued this work as chair of the U.S. Commission on Civil
Rights and as the Deputy Director of the Domestic Policy
Council for President Biden.
Mr. Rodriguez has similarly proved himself as a champion
for schools and students through his current work as Chief
Executive Officer of Teach Plus, an education advocacy
organization, and his work on the Domestic Policy Council under
President Obama to increase educational equity for students,
including his work to support community colleges, reform
student loans, and increase Pell Grant awards. And he is also a
HELP Committee alum who worked for Chairman Kennedy on major
education legislation that some of us remember. Welcome back to
you. Our third nominee, Ms. Brown, has served students at
Georgetown University as Vice President and General Counsel
since 2013.
Ms. Brown also worked in the Obama administration as
Assistant to the President and Staff Secretary and Acting Chief
Performance Officer at the Office of Management and Budget. It
is clear that all of our witnesses are well qualified for the
positions they have been nominated for, and I look forward to
hearing from them about how we tackle the challenges facing
schools and students across our Country. Unfortunately, the
previous Administration took major steps backward when it came
to supporting and protecting students.
For example, significantly reducing efforts to enforce
civil rights protections, undermining efforts to hold for-
profit colleges accountable, and rescinding important policies
addressing campus sexual assault. I am especially glad to see
Secretary Cardona and the Biden administration are working to
get us back on track in the fight against sexual assault and
actually listening to students and survivors instead of
ignoring them. The previous Administration's Title IX rule made
it hard for a student to report an incident of sexual assault
or harassment, and easier for a school to sweep this kind of
violence under the rug.
The Department's ongoing review of the device Title IX rule
is a critical step toward undoing the last Administration's
harmful policies. I hope following its review, the Biden
administration will protect students and survivors by putting
forward a new, strong rule to prevent schools from avoiding
responsibility for responding to sexual harassment and assault
by limiting their responsibility if students report to the
wrong person, provide a robust definition of sexual harassment,
ensure survivors can share their story in a way that avoids re-
traumatization, provide more information to the public about
sexual harassment and assault cases, including making sure the
public can tell which schools have requested religious
exemptions from Title IX, and protect student confidentiality.
Of course, the Department's efforts here are just a start.
There is a lot more we need to do to protect all of our
students. I am looking forward to working with the Biden
administration to ensure every student can learn in a safe
environment free from discrimination, harassment, and assault.
And we must keep pushing on other fronts as well, like making
sure every student receives a high quality public K-12
education, families can access affordable and high quality
child care and pre-K, students can access and persist in higher
education while minimizing the burden of student debt, and
schools and child care facilities are safe from pandemics,
environmental hazards, gun violence, and more. We also need to
tackle the deep education inequities in our Country, meaning we
need to root out systemic racism that continues to plague our
Nation's education system, uphold our civil rights protections
for all students, including students with disabilities, address
inequities in school funding, support and protect LGBTQ+
students, and address sexism, racism, ableism, bigotry, and
bullying in our schools.
Ultimately, what it comes down to is this, you should be
able to receive a high quality education and thrive in this
country regardless of your race, family income, disability,
sex, or zip code. I am pleased to say that Ms. Lhamon, Mr.
Rodriguez, and Ms. Brown have worked throughout their careers
to make sure that is the case. I have no doubt they will
continue to do so when confirmed, and I look forward to working
with all of them in their new roles.
Now, before I turn it over to Ranking Member Burr for his
opening remarks, I seek unanimous consent to put in the record
more than 20 letters in support of Ms. Lhamon's nomination from
nearly 230 organizations, one letter in support of Mr.
Rodriguez's nomination, and one letter of support in Ms.
Brown's nomination. So ordered.
[The following information can be found on page 37 in
Additional Material]
The Chair. Senator Burr.
OPENING STATEMENT OF SENATOR BURR
Senator Burr. Thank you, Madam Chair. Count me as one that
support Mr. Rodriguez. It is good to see you again. Thanks for
our time together. I think we all on this dais miss Ted
Kennedy, extremely, much. To our witnesses, congratulations on
your nominations and welcome. These are important education
policy positions. Today I am going to spend most of my time
talking about the role that Ms. Lhamon will play at the Office
of Civil Rights and the serious concerns I have from the last
time she held that job. I have two chief concerns.
First, if confirmed, it seems that Ms. Lhamon will charge
ahead to unraveling significant pieces of the previous
Administration's Title IX rule. Second, I am convinced Ms.
Lhamon understands or at least appreciates the limits of her
authority.
When Secretary DeVos issued the Title IX rule on campus
sexual assault, Ms. Lhamon tweeted about it, saying this,
``Secretary DeVos presides over taking us back to the bad old
days that predate my birth when it was permissible to rape and
sexually harass students with impunity. Today's students
deserve better, including fair protections consistent with the
law.'' Quite frankly, that is just plain offensive. This type
of overheated rhetoric doesn't reflect the actual facts or ease
partisan tensions on important and sensitive topics. Ms. Lhamon
admitted in her meeting with me and her interview with
Committee staff that she agrees with many aspects of the rule.
Yet by her tweet, no one would know that. I imagine that she
was taking aim at the due process protections of the rule, the
opportunity for a hearing and cross-examination. But those two
provisions are rooted in Federal court precedent. For example,
the Sixth Circuit has said, and I quote, ``the due process
clause mandates that a university provide accused students a
hearing with the opportunity to conduct cross-examination. If a
public university has to choose between competing narratives to
resolve the case, the university must give the accused student
or his agent an opportunity to cross-examine the accuser and
adverse witnesses in the presence of a neutral fact finder.''
The Third Circuit Court has said, ``the basic elements of
Federal procedural fairness in Title IX, sexual assault
misconduct proceedings, include a real and meaningful hearing,
and when credibility determinations are at issue, the
opportunity for cross-examination of witnesses.'' And there is
no greater authority on legal protections for women than the
late Supreme Court Justice Ruth Bader Ginsburg, when she echoed
a similar position telling The Atlantic in 2018, ``there has
been criticism of some college codes of conduct for not giving
the accused person a fair opportunity to be heard, and that is
one of the basic tenets of our system. As you know, everyone
deserves a fair hearing.'' But I have concerns Ms. Lhamon
doesn't share these views. The last time she had this job, she
issued guidance that allowed schools to forgo hearings and the
due process rights of both parties to have cross-examination.
Instead, the guidance allowed schools to use what is known
as a single investigator model, which vested in one person the
power to be judge, jury, and executioner. So it seems to me,
instead of listening to Justice Ginsburg, our nominee is
listening to Lewis Carroll and has a sentence first verdict--
verdict afterwards mentality. I don't think due process
protections or even the concept of cross-examination warrants
the level of vitriol aimed at the DeVos rule. And I think
Secretary DeVos deserves an apology. And if Ms. Lhamon is
confirmed, I think she will need to be careful about any
changes to this rule.
Federal courts will stand up for due process for the
accused even if this Administration won't. My second concern is
that Ms. Lhamon doesn't seem to appreciate the limits of the
power of the executive branch. For example, she expressed a
distorted view of the appropriate use of agency guidance, which
is unlike regulations, they do not go through a formal notice
or comment process. At a hearing before this Committee in 2014,
Ms. Lhamon told the former Chairman, Lamar Alexander, that she
believes the guidance is binding on the institutions of higher
education. Yet here is what the experts say on that. The
Administrative Conference of the United States says the
guidance documents are nonbinding statements of interpretation,
policy, and advice about the implementation of statutes or
regulations.
The Supreme Court has said that guidance is meant to advise
the public and does not have the force and effect of law.
However, Ms. Lhamon bullied schools into complying with
guidance by telling them that they could lose Federal funding,
the ultimate punishment that has rarely been used. If they did
not abide by guidance documents saying, and this is a quote,
``do not think it is an empty threat.'' While Ms. Lhamon told
me that her enforcement practices were enforcing the law not
guidance, her guidance laid out overly prescriptive
requirements in institutions like a specific standard of
evidence and specific investigative practices not found
anywhere in civil rights law.
Courts have also criticized its enforcement posture of OCR
under Ms. Lhamon's leadership. The Seventh Circuit pointed out
that multiple circuit courts have considered the guidance and
accompanying pressure of the Department of Education's Title IX
investigation, gives an accused student a story about why an
institution, ``might have been motivated to discriminate
against males accused of sexual assault.'' Even OCR employees
during Ms. Lhamon's tenure recognized the pressure OCR put on
universities.
A lawyer who worked in OCR in both the Obama and the Trump
administration said in an interview that, ``we did see some bad
cases in the Obama era, cases where it basically didn't matter
what the evidence there was, the college was going to find
against the defendant, the male defendant, no matter what. I
think the schools felt pressure under the Obama guidance.'' So
colleges and universities are right to be confused if she is
saying to them following her guidance is mandatory and then
telling Congress that she means something different. That sort
of pressure comes from the top and Ms. Lhamon's history is
deeply troubling, if not outright disqualifying.
Last, I would like to submit six letters into the record
representing over 100 professors, attorneys, Title IX experts,
and other professionals opposing Ms. Lhamon's return to the OCR
at the Department of Education.
The Chair. Thank you, Senator Burr. Oh, so ordered.
[The following information can be found on page 98 in
Additional Material]
Senator Burr. Next, I want to touch briefly on the General
Counsel position. The General Counsel probably has the most
difficult job of making sure Department officials follow the
law the way we here in Congress wrote it. So I hope that as a
lawyer, Ms. Brown, you will see that happens. One of the big
issues I am concerned about in this Administration is going to
take the position that they have the authority to issue mass
student loan forgiveness. The Department of Education is
expected to issue a legal opinion on that issue.
However, the Trump administration determined that the
Department did not have such authority, and their legal
argument, quite frankly, is very convincing. Ms. Brown, you
will likely play a role in formulating and signing off on the
legal opinion for this Administration, so I am interested in
hearing your thoughts on that. In my view, nowhere in the law
do I see the authority.
To quote the Supreme Court, ``Congress does not, one might
say, hide elephants in mouseholes.'' To find the Federal
Government has had this authority and no one knew it until now
would be a huge elephant. Last, before I close, I want to
mention an issue I am having with this Administration when it
comes to responses, Madam Chair, for nominees. As part of the
vetting process, I have been asking all nominees about their
social media accounts. One, tell me if they have them and what
they have posted, and two, to tell me if they have ever deleted
posts or accounts. For some reason, none of the nominees want
to answer the second question.
To me, this is unacceptable, and it makes it seem like
these nominees have something to hide. I have written the White
House about this, and I expect to get an answer soon. So to our
witnesses, again, welcome. I look forward to hearing from all
of you today in asking how you will do on these important
issues that affect your job within the Department of Education.
I thank the Chair. I yield the floor.
The Chair. Thank you, Senator Burr. We will now introduce
today's witnesses. And I will begin with Catherine Lhamon,
President Obama's nominee to serve as Assistant Secretary for
Civil Rights at the Department of Education. She has a proven
record as a champion for students and civil rights. When she
was previously nominated to serve in this role by President
Obama and confirmed in the Senate by a voice vote, she worked
to combat sexual assault on college campuses, protect
transgender students, worked to reduce the use of seclusion and
restraint, fought to eliminate racial disparities in school
discipline, and enforced civil rights laws to protect students
across our Country.
Before joining the Administration, she worked on legal and
civil rights issues as Director of Impact Litigation at Public
Counsel, a California based pro bono law firm, as Assistant
Legal Director at the ACLU of Southern California, where she
practiced law for a decade, and as a teaching fellow and
supervising attorney in the appellate litigation program at
Georgetown University Law Center. And after her last stint as
Assistant Secretary, she went on to continue the work of
fighting for civil rights through her time as Chair on the U.S.
Commission on Civil Rights, her work litigating civil rights
cases with the National Center for Youth Law, and as Legal
Affairs Secretary to the Governor of California.
She currently serves as the Biden--in the Biden
administration, as Deputy Assistant to the President and Deputy
Director of the Domestic Policy Council for Racial Justice and
Equity. Mr. Lhamon is a graduate of Amherst College and
received her J.D. at Yale Law School. Ms. Lhamon, I am so
pleased to have you with us and I am absolutely thrilled the
President chose to nominate you. And I look forward to your
testimony. Next, we have Senator Van Hollen, who has joined us
today, who will be introducing Lisa Brown.
Senator Van Hollen, welcome.
STATEMENT OF SENATOR VAN HOLLEN
Senator Van Hollen. Well, thank you. Thank you, Chair
Murray, Ranking Member Burr, to all the Members of the
Committee for the opportunity to introduce the President's
nominee to serve as General Counsel for the Department of
Education, Lisa Brown. Ms. Brown is an accomplished lawyer and
a proud Marylander with an exemplary record of public service.
And I know that if confirmed, her experience, her character,
and her values will be a great benefit to the Department of
Education and to our Country at this pivotal moment in our
history. Lisa Brown has spent her career at the intersection of
public service, education, justice, and the law.
After receiving her B.A. magna cum laude from Princeton and
her J.D. with honors from the University of Chicago, Ms. Brown
served as a Staff Attorney at the Center for Law in the Public
Interest in Los Angeles, where she fought against employment
discrimination, stood up for the rights of the homeless, and
protected our fellow citizens against consumer fraud. She later
joined the firm of Shane Gardner and was made partner in 1994.
While working there, she continued to pursue public interest
law on a pro-bono basis.
Her passion for public service eventually led her to the
American Constitution Society for Law and Policy, where she
served as Executive Director and was responsible for
strengthening an organization dedicated to equal justice under
law, serving the public interest, and guarding against the
concentration of power. For the last 8 years, she has been a
Vice President and General Counsel for Georgetown University.
In that capacity, she has been a key adviser to the
University's President at top levels of decision-making and
coordinates a vast team of lawyers and outside counsel. And as
has been the case throughout her career, Lisa Brown has always
made time to work hands on with those she served. She has been
a mentor to countless first generation college students on
campus and actively makes herself available and her wisdom
available to all members of the Georgetown community.
As you mentioned, Madam Chair, her experience includes deep
knowledge of the Washington and Federal Government. She served
in two White Houses. First in the Office of Al Gore as Counsel
to the Vice President, and later as Assistant to the President
and Staff Secretary under President Obama. She has also held
positions as an Attorney Advisor in the Office of Legal Counsel
at the Department of Justice and as Acting Chief Performance
Officer at OMB. Colleagues, we need Lisa Brown's experience and
knowledge in this moment, one where we have a real opportunity
to address the challenges facing all our students and educators
head on from tackling the education rifts exasperated by COVID-
19, to expanding access to quality early education, to fully
funding Title I and IDA to confronting a skyrocketing higher
education affordability crisis and much more.
Colleagues, on a personal note, the reason I can so
confidently testify to Lisa Brown's unassailable character and
her integrity is I have known Lisa for most of my life. We
attended grade school together and we have kept in touch over
the years. And I am really thrilled that Lisa has decided to
rededicate herself, if the Committee votes and Congressional
votes are willing, to public service. I do also want to
acknowledge her wonderful family members who are here, Kevin
Cullen, who is a nationally renowned Oncologist and Director of
Oncology at University of Maryland Cancer Center, and their
son, Philip.
In closing, there is no doubt in my mind that, if
confirmed, Lisa Brown will serve the country well as the next
General Counsel in the Department of Education. I think she
will make us all proud and I urge her confirmation.
The Chair. Thank you so much, Senator Van Hollen. And Ms.
Brown, thank you for joining us today as well. And now I am
going to virtually welcome Congressman George Miller to
introduce Roberto Rodriguez.
STATEMENT OF CONGRESSMAN MILLER
Mr. Miller. Thank you very much, Madam Chair, Ranking
Member Burr. It is interesting to hear your testimony, Senator
Burr. You have delved into it deep. I loved working with you in
the past. Roberto Rodriguez is President Biden's nominee to be
Assistant Secretary for Planning, Evaluation and Policy
Development at the U.S. Department of Education. He is joined
today in the hearing room, as you mentioned, Madam Chair, by
his wife, Rosio and his children, Isabella and Andres.
I have known Roberto for 20 years, for 20 years or more as
a leader who listens and is laser focused on advancing equity
and improving outcomes for students. This year, the pandemic
caused unprecedented changes--challenges and changes. Students'
in-person learning was curtailed, access to preschool and child
care was limited. The pursuit of a college degree was
interrupted for too many. Educators stretched to learn new ways
to connect remotely with their students and families. The
pandemic took its toll on the social, emotional, and mental
health needs of our students.
The lack of access to broadband and to technology necessary
for learning widened the inequities in our system--in our
systems, excuse me. It was a critical time to meet the
President Biden's--the President's charge to build back better
and to shape the future of our schools and colleges and
universities. Roberto Rodriguez will take on the task of
developing solutions for these and other problems in our
education system, crafting policies to meet the challenges head
on, and shaping change for the future of our Nation's
educational system. He has expertise and proven leadership and
the dedication needed to meet these challenges and make these
changes. I believe Roberto Rodriguez is the perfect leader for
this time and for this position.
Roberto has spent his career working to tackle the
challenges of education that impedes progress for our students,
first as an advocate and later as an aide--a senior aide to
Senator Ted Kennedy on this Committee, and then to the Obama
White House. Most recently, he has been at the helm of a
nonprofit organization called Teach Plus, working to bridge
policy and practice to prepare teachers to craft and lead
solutions beyond their classrooms for their colleagues,
students, and schools. The results have been truly remarkable.
Under his leadership, Teach Plus has been invited to work by
Governors, state school superintendents, and state legislators
to craft policies and policy solutions from Texas to
Mississippi to Massachusetts and beyond.
Cities across the country to district and system leaders
have sought out Teach Plus to coach and support teachers in
shaping and leading instructional change. Policy makers and
educational leaders are recognizing the value of this
productive partnership. It proves the importance of bottom-up
change in education with the power of teachers working in
partnership with policy makers, system leaders, and families to
gain this impact. Roberto is known for his determination and
for working with purpose to build common ground. His Democratic
colleagues know him as someone who is committed and can unite
diverse interests around a unified agenda. And his colleagues
across the aisle respect him as a peer who listens and engages
in fair and productive ways to work to build the agreement.
As a member of the Senate staff, he brought together Ted
Kennedy, Judd Gregg, John Boehner, and myself to reach
agreement on the legislation, No Child Left Behind. No easy
task with that room full of people. Fortunately, this Committee
has worked to improve on our Act and worked on it. And I say
you are doing the right thing. And it is very important that
you have continued the oversight here, whether you agree with
what we wrote originally or not, it is important that oversight
continue. It required team legislative and political strategy,
careful management of our caucus and staff, and clarity in
policy objectives and mission lessons Roberto honed working
under seven authorizations, even closely with me and my staff.
Roberto brings deep knowledge and experience to make
systems and policy changes in the Federal, state and local
levels. In 2009, President Obama tapped him to work swiftly to
implement the American Recovery and Reinvestment Act. He went
on to frame the cradle to career education agenda for the
President. He listened and accounted for the needs of students,
parents, educators, and borrowers. He placed a high value on
his evidence and was aimed at for new ideas and policy changes
that would make public education more responsive to their
needs. To work closely with this Committee in 2015 to forge the
support of the passage of Every Student Succeeds Act, the bill
President Obama called the Christmas miracle when he signed it
in the White House.
Most importantly, he brings a strong service of character
and sincere commitment of his personal values and mission. He
will ascribe to those values in his upbringing, and his
examples are set by his parents. But they also will come from
his time working for underserved families and change in
Detroit, Michigan, and from his time helping high school
students reach their dreams of attending college in Cambridge,
Massachusetts, and from his leadership in a broad coalition of
civil rights organizations working to improve education in
Washington, DC. I have seen these values applied to his work to
build the movement of teacher leadership and to prepare a
network of hundreds of educators across 12 states to become
agents of change and to shape the future of education in their
school districts and their states.
To those of you who know Roberto well, and for those of you
who are meeting him for the first time, I am confident that you
will agree that President Biden has made an excellent choice
for nominating him as Assistant Secretary for Planning,
Evaluation and Policy Development. Thank you very much for this
opportunity.
The Chair. Thank you, Congressman Miller. And with that, we
will--and Mr. Rodriguez, welcome to you. And with that, we will
begin with our witness testimony.
We will begin with Ms. Lhamon. You may start.
STATEMENT OF CATHERINE LHAMON TO BE ASSISTANT SECRETARY FOR
CIVIL RIGHTS, DEPARTMENT OF EDUCATION
Ms. Lhamon. Chair Murray, Ranking Member Burr,
distinguished Members of this Committee, thank you for the
honor of appearing before you today, and Chair Murray thank you
for your gracious introduction. I am humbled by and grateful to
the President for nominating me to this crucial position. And I
was deeply honored that the Senate confirmed me for the same
position by unanimous consent in 2013. And I am delighted that
you now consider me for returning to the work I love at the
Office for Civil Rights at the U.S. Department of Education.
I know from my prior experience there that the work is hard
and critically important. I also know that if I am privileged
to be confirmed for this role, I will continue to work with you
on ways to advance the civil rights guarantees Congress has
enacted and protected for more than six decades. I have been
privileged to work in Federal Government roles for 1 month shy
of 8 years protecting civil rights, and I worked for 2 years
advising California's Governor on legal affairs, including
during this once in a century pandemic.
I am familiar with the work necessary to honor the public's
trust, and I love and respect it. I learned that reverence for
public service from my mother. We had no lawyers in our family,
but I chose to become one after hearing my mother's stories of
growing up in racially segregated Virginia and the profound
difference that public interest lawyering made in her life.
National civil rights heroes, including Oliver Hill, who among
others, litigated Brown v. Board of Education, were family
friends and neighbors.
My mother passed Mr. Hill's house every day on her way to
school, and Mr. Hill often drove her to school along with his
son. Oliver Hill's child's experience and my mother's in
segregated schools informed his passion to help this country
live up to our constitutional ideals. My mother attended
racially segregated schools before and after Brown. She was not
yet 10 years old when the case was decided. But the Supreme
Court's ruling in Brown v. Board of Education that the
circumstances of my mother's schooling violate our Constitution
shaped her understanding of justice and of the American
promise. Her experiences ultimately informed my own
expectations for what it means to serve and for why I wanted
and still want to serve.
I will bring those lessons with me back to OCR if I have
the privilege to return. People across America come to OCR with
their deepest hurts, asking the Office to evaluate whether
their rights have been violated and if so, how to correct it. I
love the challenge of applying law to specific facts, working
with the expert staff in OCR's 12 regional offices to do as
much justice as we can because those students and school
communities who come to OCR need us to make real in their lives
the laws of this body and enacts.
OCR does its job best when it efficiently, fairly, and
thoroughly resolves investigations to protect student rights,
shares its expertise about how to apply the law to facts to
prevent discrimination from occurring in the first instance,
and works with school districts and colleges and universities
around the country to satisfy the law before students are hurt.
That work is and has been bipartisan. OCR in Republican as well
as Democratic Presidential Administrations has achieved
breathtaking results for students and schools serving as
stewards against harms Congress promised the country no person
should live.
In Republican as well as Democratic Administrations, OCR
has ended segregated schooling, protected students with
disabilities from exclusion and from bullying, and stopped
sexual harassment from recurring. Now, as this Nation recovers
from the global pandemic and our students and educators return
to schools together, the beautiful civil rights promises
Congress has long made for us have particular importance.
OCR's work now is as urgent as it ever has been. If
confirmed, I would be so pleased to rejoin OCR staff as they
bring their talent, their expertise, and their dedication to do
right by people who turn to them. I look forward to today's
hearing and I thank you for this opportunity.
[The prepared statement of Ms. Lhamon follows:]
prepared statement of catherine lhamon
Chair Murray, Ranking Member Burr, and distinguished Members of
this Committee:
Thank you for the honor of appearing before you today. I am humbled
by and grateful to the President for nominating me to this crucial
position. I was deeply honored that the Senate confirmed me for this
same position by unanimous consent in 2013 and am delighted that you
are now considering me for returning to the work I love at the Office
for Civil Rights at the U.S. Department of Education.
I know from my prior experience there that the work is hard and
critically important. I also know that if I am privileged to be
confirmed for this role that I will work with you and continue the
conversation. I would be so pleased to engage with you and your offices
on ways to advance the civil rights guarantees Congress has enacted and
protected for more than six decades.
I have been privileged to work in Federal Government roles for 1
month shy of 8 years protecting civil rights, and I worked for 2 years
advising California's Governor on legal affairs, including during this
once-in-a-century pandemic. I am familiar with the work necessary to
honor the public's trust, and I love and respect it.
I learned that reverence for public service from my mother. We had
no lawyers in our family, but I chose to become one after hearing my
mother's stories of growing up in racially segregated Virginia, and the
profound difference effective public interest lawyering made in her
life.
National civil rights heroes, including Oliver Hill who, among
others, litigated Brown v. Board of Education, were family friends and
neighbors. My mother passed Mr. Hill's house every day on the way to
school and Mr. Hill often drove her to school along with his son.
Oliver Hill's child's experience, and my mother's, in segregated
schools informed his passion to help this country live up to our
constitutional ideals. My mother attended racially segregated schools
before and after Brown--she was not yet 10 years old when the case was
decided--but the Supreme Court's ruling in Brown v. Board of
Education--that the circumstances of my mother's schooling violated our
constitution--shaped her understanding of justice and of the American
promise. Her experiences ultimately informed my own expectations for
what it means to serve and for why I wanted, and still want, to serve.
I will bring those lessons with me back to OCR if I have the
privilege to return. People across America come to OCR with their
deepest hurts, asking the office to evaluate whether their rights have
been violated and if so how to correct it. I love the challenge of
applying law to specific facts, working with the expert staff in OCR's
12 regional offices to do as much justice as we can, because those
students and school communities who come to OCR need us to make real in
their lives the laws this body enacts.
OCR does its job best when it efficiently, fairly, and thoroughly
resolves investigations to protect student rights; shares its expertise
about how to apply the law to facts to prevent discrimination from
occurring in the first instance; and works with school districts and
colleges and universities around the country to satisfy the law before
students are hurt.
That work is and has been bipartisan. OCR in Republican as well as
Democratic Presidential Administrations has achieved breathtaking
results for students and schools, serving as stewards against harms
Congress promised the country no person should live. In Republican as
well as Democratic Administrations, OCR has ended segregated schooling,
protected students with disabilities from exclusion and from bullying,
and stopped sexual harassment from recurring.
Now, as this Nation recovers from the global pandemic, and our
students and educators return to schools together, the beautiful civil
rights promises Congress has long made for us have particular
importance. OCR's work now is as urgent as it ever has been. If
confirmed, I would be so pleased to rejoin OCR's staff as they bring
their talent, expertise, and dedication to do right by people who turn
to them.
I look forward to today's hearing and I thank you for this
opportunity.
______
The Chair. Thank you very much.
Ms. Brown.
STATEMENT OF ELIZABETH BROWN TO BE GENERAL COUNSEL, DEPARTMENT
OF EDUCATION
Ms. Brown. Chair Murray, Ranking Member Burr, and Members
of the Committee, it is my honor to appear before you today as
President Biden's nominee to serve as General Counsel of the
Department of Education. I want to thank Senator Van Hollen for
that wonderful introduction. I am deeply appreciative of and
humbled by President Biden and Secretary Cardona's trust in me.
And if confirmed, I will do my absolute best to justify that
trust. I would like to thank the Committee for considering my
nomination today and for the opportunity to meet with members
of your staff before this hearing.
I also want to thank my family and especially my husband,
Kevin Cullen, and my son Philip Cohen for their constant love
and support and for their shared dedication to educational
opportunities for all. My parents believed that the most
important thing they could give us was a good education. My
father frequently told us that with quality education and hard
work, you can do or be anything you want. My parents instilled
in me not just a personal love of education, but also a
dedication to providing educational opportunities to others as
a teacher, a board member, and a lawyer. The American dream,
the promise of opportunity for those who work hard depends upon
a quality education.
The ability to achieve that dream should not be limited to
those with resources or living in certain zip codes. An
excellent education should be available to everyone. This is
only more urgent today as we emerge from the COVID pandemic.
The Department's role in supporting students whose academic
progress and mental health have been deeply impacted, and in
closing the widening achievement gap, and in providing
opportunity to adults reentering the workforce are of critical
importance to the recovery of our Nation. I believe that the
work of the Department's General Counsel is vital to that
effort. Together with the over 100 career lawyers and other
professionals in the Office of General Counsel, the General
Counsel plays a critical role in advancing the Department's
mission by providing sound legal advice and counsel to the
Secretary and officials across the Department.
The General Counsel's responsibilities include advising
colleagues on faithful implementation and enforcement of the
laws that Congress has enacted and working with colleagues
across the Department to further the Department's mission. It
is a position I have come to admire and respect over the course
of my career. After serving in a number of different legal
positions, I found my calling in the role of in-house Counsel.
I was first introduced to the job when I served as counsel to
Vice President Gore and have spent the past eight and a half
years as Vice President and General Counsel of Georgetown
University. There is nothing better than helping a mission
driven organization achieve its goals while avoiding legal
shoals.
The opportunity to combine my two passions, public service
and education, with my favorite job by serving as General
Counsel of the Department of Education is compelling to me. I
believe that my more than 30 years of experience working for
the Government, a Presidential transition team, a major
university and a law firm has prepared me for this role. It has
given me a broad and deep understanding of both how Government
works and the role of a General Counsel. I understand the roles
of each branch of Government and the distinction between
policymaking and legal analysis. I have had the opportunity to
work and advise on a wide range of legal matters, including
litigation, financial transactions, ethics investigations,
regulatory matters and compliance, and I am familiar with many
of the legal issues that are within the Department's purview.
I enjoy leading a team of expert lawyers and would relish
the opportunity to work with the excellent lawyers in the
Department of Education's Office of General Counsel and across
the Government to give American people the best representation
possible, guided by what the law and constitution require. If
confirmed, I promise to do my best to provide sage advice and
counsel to help the Department achieve its mission so that
every parent can tell their children, as my father told his
three daughters, that if you work hard and earn a quality
education, you can do anything you want.
It would be an honor to serve as General Counsel of the
Department of Education and to partner with you to provide
students across the country with the best possible education.
Thank you again for the opportunity to appear before you and I
look forward to your questions.
[The prepared statement of Ms. Brown follows:]
prepared statement of lisa brown
Chair Murray, Ranking Member Burr, and Members of the Committee, it
is my honor to appear before you today as President Biden's nominee to
serve as General Counsel of the Department of Education. I am deeply
appreciative of and humbled by President Biden and Secretary Cardona's
trust in me. If confirmed, I will do my best to justify that trust.
I would like to thank the Committee for considering my nomination
and for the opportunity to meet with members of your staff before this
hearing.
I also want to thank my family, and especially my husband Kevin
Cullen and our son Philip, for their love and support and their shared
commitment to educational opportunities for all.
My parents believed that the most important thing they could give
their three daughters was a good education. My father frequently told
us that, with a quality education and hard work, we could do or be
anything we wanted. My parents instilled in me not only a personal love
of learning, but also a dedication to providing educational
opportunities for others, as a teacher, board member and lawyer.
The American Dream--the promise of opportunity for those who work
hard--depends upon a quality education. The ability to achieve that
dream should not be limited to those with financial resources or living
in certain zip codes. An excellent education should be available to
everyone. This is only more urgent today, as we emerge from the COVID
pandemic. The Department's role in supporting students whose academic
progress and mental health have been deeply impacted, closing the
widening achievement gap, and providing opportunity to adults
reentering the workforce are of critical importance to the recovery of
our Nation.
I believe the work of the Department's General Counsel is vital to
that effort. Together with the over 100 career lawyers and other
professionals in the Office of General Counsel, the General Counsel
plays a critical role in advancing the Department's mission by
providing sound legal advice and counsel to the Secretary and officials
across the Department. The General Counsel's responsibilities include
advising colleagues on faithful implementation and enforcement of the
laws that Congress has enacted, and working with colleagues across the
government to further the Department's mission. It is a position I have
come to admire and respect over the course of my career.
After serving in a number of different legal positions, I found my
calling in the role of in-house counsel. I was first introduced to the
job when I served as Counsel to Vice President Gore and have spent the
past eight and a half years as Vice President and General Counsel of
Georgetown University. There is nothing better than helping a mission-
driven organization to achieve its goals while avoiding legal shoals.
The opportunity to combine my two passions--public service and
education--with my favorite job--by serving as General Counsel of the
Department of Education is compelling to me.
I believe that my more than thirty years of experience working for
the government, a Presidential transition team, a major university and
a law firm has prepared me for this role. It has given me a broad and
deep understanding of both how government works and the role of a
general counsel. I understand the roles of each branch of government,
and the distinction between policymaking and legal analysis. I have had
the opportunity to work and advise on a wide range of legal matters,
including litigation, financial transactions, ethics, investigations,
regulatory matters and compliance, and am familiar with many of the
legal issues that are within the Department's purview. I enjoy leading
a team of expert lawyers, and would relish the opportunity to work with
the excellent lawyers in the Department of Education's Office of
General Counsel and across the government to give the American people
the best representation possible guided by what the law and
Constitution require.
If confirmed, I promise to do my best to provide sage advice and
counsel to help the Department achieve its mission, so that every
parent can tell their children, as my father told his three daughters,
that if you work hard and earn a quality education, you can do anything
you want. It would be an honor to serve as General Counsel of the
Department of Education and to partner with you to provide students
across the country with the best possible education.
Thank you again for the opportunity to appear before you. I look
forward to your questions.
______
The Chair. Thank you, Ms. Brown.
Mr. Rodriguez.
STATEMENT OF ROBERTO RODRIGUEZ TO BE ASSISTANT SECRETARY FOR
PLANNING, EVALUATION AND POLICY DEVELOPMENT, DEPARTMENT OF
EDUCATION
Mr. Rodriguez. Madam Chair, Ranking Member Burr, Members of
the Committee, thank you for the opportunity to appear before
you today. I am proud to share this dais as well with Ms. Brown
and Ms. Lhamon. And thank you for the opportunity to introduce
my wife, Rosio, my two children, Isabella and Roberto Andres,
before this Committee. They are my pride and joy and I am so
pleased they are here with me.
I am honored by the trust that President Biden and Vice
President Harris have placed in me with this nomination to
serve as Assistant Secretary for Planning, Evaluation and
Policy Development at the Department of Education. And if
confirmed, I will bring steadfast commitment and a sense of
duty to the Department that have been the hallmark of my public
service. Educational equity and opportunity stand as guiding
principles in my own career.
I learned from a young age the value of education from my
parents and from my grandparents who came to our Country with a
strong belief that education and hard work are pathways to a
better life. As the son of educators growing up in public
education, I learned the importance of service, community, and
opening doors for those whose voices are seldom heard.
As migrant and labor leader Cesar Chavez said, once of
education, ``our ambitions must be broad enough to include the
aspirations and needs of others for their sake and for our
own.'' Our collective charge of providing all children an
excellent education from the earliest years through workforce
readiness and college success is one that involves us all. It
calls us to listen to one another and to build common ground as
policymakers, educators, community members, and parents working
together to get things done for students. It requires us to
remove barriers to opportunity and to address inequities in our
system. If I am fortunate to be confirmed, I look forward to
working closely with Secretary Cardona, with President Biden
and his staff, and with each of you to meet that charge.
Equal access and educational excellence are at the heart of
the Department's mission, and there has never been a more
important time to fulfill that mission as we recover from this
pandemic and look to a brighter future. The pandemic has posed
great hardships. It has tested our resolve. But it has also
revealed resilience and ingenuity among teachers, parents, and
students. The Department plays an important role in harnessing
innovations, ideas, and best practices that have emerged in
this challenging year.
If confirmed, I commit to promoting communication and
awareness to foster shared learning of those lessons, as well
as accountability for meeting the requirements set forth by
Congress under the American Rescue Plan. I will also fulfill
the other duties of this position, including developing and
reviewing the Department's budget and utilizing data to inform
the Department's programs. I bring commitment, experience, and
an affinity for public policy to these responsibilities. I
bring those from early in my career leading a diverse civil
rights coalition to advance policy and advocacy and better meet
the needs of Latino and bilingual students. I bring these from
my time working on this esteemed Committee under one of my
great mentors, Senator Kennedy, building common ground and
shared purpose to forge bipartisan agreements on Federal
policy.
I bring these from my time on the White House Domestic
Policy Council working to build and advance President Obama's
education agenda and to craft interagency efforts to improve
outcomes for youth and adults. More recently, I have had the
privilege of working with hundreds of exceptional educators
across the country, bringing their voices and vision to systems
change. Leading that teacher leadership movement has inspired
me to connect the expertise of educators to policymaking.
Working across diverse states and communities
geographically and politically also taught me about the
importance of shaping policy in a manner responsive to local
needs. I worked hard to bring teachers' voices into that policy
conversation because I know effective policy is a tool that can
respond to urgent challenges, and a tool to inspire us to
envision something better. Effective policy is solutions
oriented. It focuses on the assets and aspirations of our
students and families. Effective policy should emerge from
robust evidence and from knowledge about what we know works to
support teaching and learning.
If confirmed, you have my commitment to bring a holistic,
bottom up, and inclusive approach to policymaking, to promote
innovation and a learning culture that will complement and
inform policy and programs at the Department, and to pursue the
strategic use of data in ways that are open and transparent,
but also actionable to benefit students and borrowers,
educators and families. Thank you for the opportunity to share
my background and priorities.
I am eager to get to work, and I look forward to learning
about your interests and answering your questions. Thank you.
[The prepared statement of Mr. Rodriguez follows:]
prepared statement of roberto rodriguez
Chair Murray, Ranking Member Burr, Members of the Committee, thank
you for the opportunity to appear before you today.
Before I begin, it's a pleasure to introduce my wife, Rocio, and my
children, Isabela and Roberto Andres to the Committee. They are my
pride, joy, and constant source of support.
I am honored by the trust that President Biden and Vice President
Harris have placed in me with this nomination to serve as Assistant
Secretary for Planning, Evaluation and Policy Development at the
Department of Education.
If confirmed, I will bring steadfast commitment and a sense of duty
to the Department that have been the hallmark of my public service.
Educational equity and opportunity stand as guiding principles in
my own career. I learned from an early age of the value of education
from my parents, and from my grandparents who came to our Country with
the strong belief that education and hard work are pathways to a better
life. As the son of educators growing up in public education, I learned
the importance of service, community, and opening doors for those whose
voices are seldom heard. As Cesar Chavez said of education, `` . . .
our ambitions must be broad enough to include the aspirations and needs
of others, for their sake and for our own.''
Our collective charge of providing all children an excellent
education--from the earliest years through workforce readiness and
college success--is one that involves us all. It calls us to listen to
one another and build common ground as policymakers, educators,
community members, and parents, working together to get things done for
students. It requires us to remove barriers to opportunity and address
inequities in our system. Education policy is an important tool to
advance these principles. If confirmed, I look forward to working
closely with Secretary Cardona, with President Biden and his staff, and
with each of you to meet this charge.
Equal access and educational excellence are at the heart of the
Department's mission. There has never been a more important time to
fulfill that mission as we recover from this pandemic and look forward
to a better future.
This pandemic has posed great hardships and tested our resolve. It
has also revealed resilience and ingenuity among teachers, parents and
students. The Department plays an important role in harnessing the
innovations, ideas and best practices that emerged during this
challenging year. If confirmed, I will commit to promoting
communication and awareness to foster shared learning of those lessons
as well as accountability for meeting the requirements set forth by
Congress under the American Rescue Plan. I will also fulfill the other
duties of this position, including developing and reviewing the
Department's budget and utilizing data to inform the Department's
programs.
I bring commitment, experience, and an affinity for public policy
to these responsibilities.
Early in my career working at a national civil rights
organization, I led a coalition of over 20 organizations to
author policy recommendations and advocate at the Federal level
to address the needs of Latino and emergent bilingual learners;
As Senator Kennedy's education counsel on this
esteemed Committee, I worked to build common ground and shared
purpose to forge bipartisan agreement on Federal policy, from
No Child Left Behind to the Higher Education Opportunity Act;
On the White House Domestic Policy Council, I worked
to build, promote and advance President Obama's cradle-through-
career education agenda, crafting interagency efforts to
improve outcomes for youth and adults.
More recently, I've had the privilege of working with hundreds of
exceptional educators across the country, helping to bring their voices
and vision to systems change. Leading this teacher leadership movement
inspired me to connect the expertise and experience of educators to
policymaking. Working across diverse states and communities--
geographically and politically--also taught me about the importance of
shaping policy in a manner responsive to local needs. Those diverse
perspectives can yield stronger solutions across rural, urban, and
tribal communities--in red states and in blue states.
I worked to bring teachers into the policy conversation because I
know effective policy is a tool that can help us respond to challenges
while also inspiring us to envision something better. Effective policy
is solutions-oriented--it focuses on the assets and aspirations of our
students and families. Effective policy should emerge from robust
evidence and knowledge about what works best to support teaching and
learning.
If confirmed, you have my commitment to bring a holistic, bottom-up
and inclusive approach to education policymaking; to promote innovation
and a learning culture that will complement, inform and guide policy
and program implementation; and to pursue the strategic use of data in
ways that are open, transparent and actionable for the benefit of
educators, families, students and borrowers.
Thank you for the opportunity to share my background and
priorities. I am eager to get to work and look forward to learning
about your interests and answering your questions.
______
The Chair. Thank you very much. We will now begin a round
of 5 minute questions. I ask my colleagues again to keep close
track of your clock, stay within the 5-minutes. We do have two
votes beginning at 11:30 a.m. Ms. Lhamon, not only do you have
extensive experience advancing civil rights at both the state
and the Federal level, but you have previously served as the
Assistant Secretary for Civil Rights, giving you particular
insight into the role's responsibilities and requirements.
Unfortunately, since you led the Office for Civil Rights, there
were efforts to roll back the enforcement of civil rights
protections for students.
Over the last 4 years, the Office backed away from progress
made to protect the rights and safety of women and transgender
students and rolled back the use of systemic investigations and
lost staff. I am relieved to see the Biden administration and
Secretary Cardona have already taken critical steps to return
the office to its core mission.
I want to hear about your vision for OCR moving forward. So
I wanted to ask you, if confirmed, how will your prior
experience inform your approach to ensuring that all students
have equal opportunities to obtain a high quality education?
Ms. Lhamon. Thank you so much for the question, Senator
Murray, and also for the recognition that experience in
Government informs the way that the work can and should be
done. And I am very grateful to be on the cusp of, if
confirmed, being able to return with that experience. And
having known that career staff who are so dedicated in the 12
offices around the country and the staff who are dedicated in
the Office itself, it is a pleasure to consider the nomination
together with my colleagues here on the dais, and I have an
expectation that I would be able to work with them and with
others in the front office, also at the office at the
Department of Education.
Specifically for the Office for Civil Rights, it is
crucially important to make sure that the Office returns to
evenhanded enforcement that is fully consistent with the law,
that the Office prioritizes all of its jurisdictional areas and
so is advancing race discrimination, disability discrimination,
and sex discrimination enforcement in an even handed manner.
That the Office returns to civil rights data collection, which
is statutorily mandated in a way that is comprehensive and
gives the Office sufficient information to be able to evaluate
civil rights concerns that exist in schools around the country,
and also makes that information transparent and useful for
families and educators around the country, not only for the
experts at the Office for Civil Rights.
I am devastated about the loss of staff that I have
witnessed in the four and a half years since I last was at the
Department. And it is very important to me to be able to
rebuild the offices and make sure that staff are able to carry
a workload that is reasonable and that they can bring their
expertise to civil rights in a way that we can expect civil
rights enforcement to be real and lived for students in
schools.
It is crucially important that the civil rights enforcement
actually adhere to the statutes that Congress has written and
give meaning to those promises that Congress has shared with
all of us. And those are my priorities if I am able to be
returned to the Office.
The Chair. Thank you very much for that. Mr. Rodriguez, the
COVID-19 pandemic disrupted the last two school years for our
Nation's students and upended school improvement efforts that
were previously underway around the country. We also know the
pandemic has in many ways worsened persistent achievement gaps.
In recognition of the enormous undertaking facing the education
system, Congress has provided, as you know, an unprecedented
amount of funding to school districts to support students and
educators and schools.
If confirmed, how will you help states, school districts,
and educators use that funding effectively to help students
recover from the pandemic and also get back to the important
school improvement work that was required under the Elementary
and Secondary Education Act?
Mr. Rodriguez. Well, thank you, Senator, for the question.
And undoubtedly we have faced an unprecedented set of
challenges in this year. If confirmed, I would look forward to
working closely with my colleagues at the Department and with
the secretary to reinvigorate and further reinforce the strong
partnership between the Federal Government and state and local
leaders to reopen our schools safely and make sure that we are
supporting all of our students in getting back to full time in-
person learning, mitigating some of the challenges that we have
seen around the social, emotional, academic, and well-being of
our students, and doing more to support their success and to
support the strong partnership with families and parents in
that process.
Implementing--sound implementation of the American Rescue
Plan is a top priority, and the communities across the country
have really relied on the strong partnership with the
Department of Education and on the needed resources that
Congress has provided to be able to reopen effectively, as well
as to take on some of the challenges around bridging the
digital divide, around doing more to make sure that we support
the mental health infrastructure and support for our students
who have experienced tremendous trauma during this time. So
that would be a top priority for me if confirmed at the
Department.
I also would look forward to continuing to implement with
fidelity the, Every Student Succeeds Act that this Committee so
carefully considered and helped enact years ago and has been a
really important roadmap for state and local leaders to be able
to close the achievement gap, hold our schools accountable.
Certainly, it has been an unprecedented year with respect
to accountability and assessment, but I would look forward to
making sure that states and districts have the guidance that
they need to implement the, Every Student Succeeds Act with
fidelity moving forward.
The Chair. Thank you.
Senator Burr.
Senator Burr. Thank you, Madam Chair. Ms. Brown, welcome.
Even before you have had a hearing, the Office of the
Department of General Counsel has been stacked with appointees
who believe that student loans can just be canceled out of thin
air. Here is my question. If confirmed, how would you manage
conflicting legal opinions among you and your staff and who has
the final determination of the legal opinion?
Ms. Brown. Senator, thank you very much for that question.
This is a very important issue. I understand that the White
House has asked the Department of Education to work with the
Justice Department in crafting a legal opinion on the ability
to cancel student debt. If I am confirmed as General Counsel, I
will dig into this issue. I will learn, read everything I can
and analyze it to the very best of my ability.
My style, when deciding any issue actually is very much to
bring different people around a table and to--so that I can
thoroughly understand an issue and make sure that I am hearing
different perspectives on it as I am making a decision. And
then as General Counsel, I will make the best decision that I
can and make the best recommendation to the Secretary.
Senator Burr. But can I interpret the buck stops with you?
You ----
Ms. Brown. In my office, absolutely.
Senator Burr. Correct. Right. Ms. Lhamon, I have got a
series of questions and they really require a yes or no answer.
Do you believe in the concept of innocent until proven guilty?
Ms. Lhamon. I do.
Senator Burr. Do you believe an accused student is entitled
to due process in a school disciplinary proceeding?
Ms. Lhamon. I don't want to over-lawyer my answer. Due
process applies in public institutions and fair process applies
in private, and I believe that students should have a fair
process in administrative proceedings in schools.
Senator Burr. How about in public schools? You gave a
different----
Ms. Lhamon. Yes, I think the umbrella applies in both
places and I wanted to be precise about the term.
Senator Burr. You think an accused student should have the
right to see all the evidence against them before they are
asked to defend themselves against an allegation?
Ms. Lhamon. Senator, you asked about it right. And I expect
that means a legal right. And in the current context, the
timeline regulation that is operational now and that I would
enforce if returned to the Office for Civil Rights does afford
that right to students.
Senator Burr. Should an accused student be allowed to see
evidence against them that could clear them of charges?
Ms. Lhamon. Likewise, Senator, the current timeline
regulation, which is operational now, gives students that
right.
Senator Burr. Do you think a complainant and an accused
student should be entitled to a hearing?
Ms. Lhamon. Senator, the current regulation entitles, in a
higher education institutions, students to a hearing. There is
a different rule applicable for K-12.
Senator Burr. Do you believe a complainant and an accused
student should have a right to cross-examine--cross-
examination?
Ms. Lhamon. The current regulation affords, in the hearing
process, a right of cross-examination, not student to student,
but through a representative.
Senator Burr. Of the questions that I asked relative to
current Title IX guidelines--of those, how many do you plan to
change?
Ms. Lhamon. Senator, I won't be in control of what change
does or does not happen with respect to the Title IX
regulation. There is a process that has begun at the Department
of Education and that process will involve the Department. And
I, if I am privileged to return, evaluating public comments and
listening to the expertise of staff who are at the Office for
Civil Rights now, who have in the four and a half years since I
left, been honing that expertise and applying it to enforcement
experience that I don't have because I have not been there.
Senator Burr. When you and I met, you told me that you have
been painted as someone who only believes victims, but that you
didn't agree with that. Would you support keeping a presumption
of innocence requirement in the current Title IX rule, if the
Title IX rule was changed?
Ms. Lhamon. Again with the--I am trying not to over-lawyer,
but there isn't a presumption of innocence in the existing
Title IX regulation. And in fact, the Title IX regulation in
that the Trump administration issued took pains to note that
criminal procedure does not apply in schools.
Senator Burr. Correct. My question was, would you support
keeping a presumption of innocence?
Ms. Lhamon. Yes, Senator, I understand that, but that--I
couldn't keep something that is not there. It is not there now.
Senator Burr. Last question. My understanding is that
during your time at OCR, you did not conduct any notice and
comment rulemaking, is that right?
Ms. Lhamon. That is correct, Senator.
Senator Burr. Yet during your time, you issued more than 20
guidance documents. These documents include the expanded
definition of sexual harassment, discrimination based on sex,
prescriptive grievance procedure, scrutiny over how school
discipline students. None of these documents went through any
notice or comment process, meaning people had the opportunity
to comment and you could digest that in your final decision. Am
I right?
Ms. Lhamon. Senator, we did not use the notice and comment
process. We did take in quite a bit of information from people
with all kinds of views on the various topics, including, for
example, on the sexual harassment guidelines. There were more
than 35 listening sessions at the White House, and there were 3
years of meetings with people of a whole variety of interests
on the topic before the Department issued that guidance.
Senator Burr. Thank you, Chair.
The Chair. Senator Casey.
Senator Casey. Thank you, Chair Murray. I wanted to start,
I have some questions for Ms. Lhamon and Mr. Rodriguez, but I
wanted to start where Senator Burr left off on some of the--
under broad heading of campus sexual assault issues. I worked
on this for a lot of years and got passed my bill, passed back
in 2014 as part of the reauthorization of the Violence Against
Women Act. It was called the Campus Save Act. It imposed on
colleges and universities a lot more reporting and a lot more
by way of practices they had to put in place than they had
been--than had previously governed this set of issues. And I
have to say, and I know I will offend lots of people in
multiple Congresses, multiple administrations, Democrat or
Republican, and I will even offend colleges and universities.
But prior to 2014, or I should say, prior to the work the
Obama administration did, I guess, starting back in 2010, 2011,
and then ultimately we put into effect the changes that Campus
Save brought and then ultimately changes with the guidance by
the Department. Prior to that, I think when it came to sexual
assault on college campuses, I think our Federal policy was an
insult to women. We went generation after generation of young
men on college campuses engaged in acts of sexual assault with
virtually no repercussions at all. Generation after generation.
If colleges and universities are offended by my
characterization or members of different administrations,
Democrat and Republican or Congress, I don't really care if I
have offended them. It was an insult where instance after
instance--one Justice Department study in 2016, which was
challenged over and over again and then was confirmed, 1 in 5
women as of 2016, 1 in 5 women experiencing sexual assault on
college campuses, and very few people in either party were
doing enough about it until President Obama, Vice President
Biden, the Department of Education, the Administration overall
and some Members of Congress were working on it.
There are still debates about how to implement these
changes. But the idea that everything was Okay until the 2011
guidance and the 2014 legislation that I led, the idea that
everything was Okay is really insulting to women who are preyed
upon by young men for generations. So should every student be
treated fairly? Absolutely. And colleges must ensure they have
unbiased, transparent, and consistent processes for dispensing
justice. Colleges must also have a process in place that
focuses on sexual assault with the seriousness that it merits.
I would argue that prior to the last Administration, the
Obama administration, I should say, that was not the case. Ms.
Lhamon has, in her work previously, committed to protecting
students and ensuring a fair process. I have no doubt that upon
confirmation she will continue to act in accordance with those
beliefs and those practices. So let me move on. Ms. Lhamon, I
want to ask you about civil rights data collection. You spent
some time in your previous work strengthening the survey.
One of the benefits of this civil rights data collection
survey was the ability to identify when districts and even
states were disproportionately using discipline measures,
discipline procedures with groups of students such as expelling
students of color at a greater rate than white students. The
data also made it possible to examine referrals and eligibility
for special education services and if students of color were
being over identified or under identified for services.
I just wanted to ask you, in terms of the work you hope to
be doing, what are your plans for the civil rights data
collection work that you will be doing and if you think
additional data should be collected?
Ms. Lhamon. Thank you, Senator, for your passion on Title
IX and also for your passion about civil rights across the
board. And the tool that Congress gave the Office for Civil
Rights when Congress established it to collect the civil rights
data collection is such an important tool for having eyes on
what students experiences are. One of the things that is so
important to me is to make sure that the civil rights data
collection is universal so that we actually know that each data
point represents a person, that we are not making assumptions
from some data about what other students experiences may be.
I also think it is really crucial, in particular following
the pandemic, to be able to understand what kinds of
opportunities are available to students in schools and to whom
so we continue to disaggregate that data, to make sure that we
can know how students with disabilities, how English language
learners are doing, how students of color are doing, how the
full range of experiences take place in schools across the
country is really crucial.
I would want to be able to hear from the staff about what
worked in the most recent data collections, as well as where we
saw gaps or where there were states and school districts having
difficulty meeting the expectations for the Department about
what the data would look like. And so I want to be able to have
those conversations to figure out exactly what should be
amplified. But priorities for me are to know what kinds of
opportunities are available to whom.
Senator Casey. Thanks very much. Sorry to go over, Chair
Murray.
The Chair. Thank you.
Senator Tuberville.
Senator Tuberville. Thank you very much. Thank you for your
service. Thanks for being here today. This is pretty
interesting. I would like to agree with Senator Casey and
Senator Burr. I was in coaching and teaching for 40 years, and
I have seen it all. And when we come to--when we get to the
point about sexual harassment, if we don't start holding the
universities accountable through funding, that is the only
thing that they recognize is money, they will straighten up.
Until we do that, we can keep politics out of it because we
are now going to straighten it out. It is not going to happen.
I have been involved in many of them. Look a lot of cases, but
we have got to get the politics out of it. We have to start
holding these universities accountable because they are nothing
but businesses. That is all they are. And again, I made money
with these businesses as coach. So they are great
organizations.
Let me tell you, education is a key to our Country. And we
have got politics so deep in education, I don't know whether we
are going to be able to get ourselves out, but this is not a
Republican or a Democratic problem, this is an American problem
that we have got in our education system. And I hope you all
would--hope you understand that and kind of understand that
with us, because we are all Americans. And if we don't educate
our kids, we are not going to have a chance in the future. We
are not going to have a chance. And one reason I ran for this
position was because of education. Because I have seen the last
15, 20 years how bad it has gotten. 37th in the world in
education, in the world. We ought to be embarrassed.
But that being said, I have got a couple of things I am
going to ask Ms. Lhamon. In 2016, when you first held this
position, you changed a couple of processes and we forced
100,000 K through 12 schools to permit transgender students to
join sex segregated athletic teams consistent with their gender
identity. Now, I felt like--for years for young girls, Title
IX, and I hate to see us ruin that. There has to be an answer
because we get more letters on Title IX and this transgender
problem than anything. And I am on a lot of committees. We have
got to find an answer. We have got to keep young girls
interested in sports. That is why we started Title IX.
Now we are letting transgender athletes involve, dressing
in the same dressing rooms, using the same restrooms. There has
got to be an answer to this. I don't know what it is, but you
all get paid the big bucks. We have got to find that answer. We
have got to find that answer. So given your record, do you
believe, Ms. Lhamon, that allowing transgender women to compete
in women's sport should come at the cost of discriminating
against biological women? Your thoughts.
Ms. Lhamon. Senator, first I want to thank you for your
passion about Title IX, which I share, and for your leadership
and for what you stand for, for sports and schools. On the
question about Title IX, the promise of Title IX is that no
person shall be subject to discrimination on the basis of sex.
So I could not countenance discriminating against any student
in the context of Title IX if I were the CR enforcing Title IX.
Senator Tuberville. But do you not think that putting
biological men in women's sports is not discriminating? Can we
not have a biological transgender team of their own? We have
got to find something, or we are going to lose thousands and
thousands of young women that say, I am not getting involved in
this or their parents are not going to let them get involved in
this. We have got to look at the repercussions of this.
I am all for everybody. I have coached 80 percent of the
kids. I coached for minorities for 40 years. But we have got to
come to a conclusion here and help the women that we helped so
much in Title IX. We did so much for women's sports and now we
are bringing it to its knees because of common sense. I am for
kids, transgender kids, but we have got to find another way
where they can compete. Do you agree or not?
Ms. Lhamon. Senator, if I may, could I share with you the
lens that I bring to this--that when I led the Office for Civil
Rights in the Obama administration, we had a complaint that
came into the Ohio office for a student who uses a wheelchair,
who wanted to be able to compete with his team using the
wheelchair on the track team and to have his times count. And
first, the school told him no. Then they told him he could
compete, but his times wouldn't count. He would be on the
special track. And then the State Athletic Association raised a
set of concerns.
The resolution in that agreement found a way for that
student to compete safely, fully as a member of the team, to
have his time to come, and to do it in a way that was safe and
work for all of the students. I would want to bring that lens
to the work in any athletics context so that we are finding a
way not to discriminate against a student who is unusual, not
to discriminate against a student who wants to be on the team,
who wants to get the benefits of athletics, and to be able to
make sure that the Title IX protection, that instance of Title
IV protection applies to every single student on the team. That
is the lens I would want to bring.
Senator Tuberville. Well, thank you and thanks for your
passion. And you believe in it.
Ms. Lhamon. Thank you. I do.
Senator Tuberville. Again, education is the whole key to
what we are doing in this country. That is the reason we are
the best country on the face of the earth and a lot of it
starts in athletics. Gets people involved working together. I
have got a couple more questions. I will just submit them,
Madam Chair. Thank you very much. Thank you.
Ms. Lhamon. Thank you.
The Chair. Thank you.
Senator Smith.
Senator Smith. Thank you, Madam Chair and Ranking Member
Burr. And welcome Ms. Brown and Ms. Lhamon, Mr. Rodriguez. And
thank you to you and your families for your willingness to
serve our Country and for your commitment to public service.
You all bring such rich life experiences to these roles. And,
it is my hope that as America emerges, recovers from the
tragedy of the COVID pandemic and as our Country wrestles with
systemic racism and the injustice of that, that you will hold
fast to your commitment to the value that every student in this
country should have the opportunity to learn in an enriching,
safe, and supportive environment, no matter who you are, no
matter where you live, or no matter how much money your family
has. I truly believe that access to an excellent public
education is the foundation of our democracy.
I believe that is what Senator Tuberville is also saying.
And it is up to all of us to make that promise a reality for
every student. So Ms. Lhamon, I would like to turn to the
question of school discipline and disparities in school
discipline. Here is some data from Minnesota. Students of color
make up about 31 percent of Minnesota students but receive two-
thirds of all suspensions and expulsions.
Native American students are ten times more likely to be
suspended or expelled than white students. Black students were
eight times more likely to be suspended or expelled than white
students. So not only is this traumatizing, but it leads
students of color to enter this prison, this school to prison
pipeline where the punishment that they receive
disproportionately in school affects them for the rest of their
lives.
Now in Minnesota, the Department of Human Rights is working
with 41 districts and charter schools to address this
significant disparity. But all students deserve to have their
civil rights protected in schools. So could you please talk
about this, address this, tell us how you would lead the
Department of the Office of Civil Rights in working with states
and school districts to address this disparity, and what you
have seen around best practices here.
Ms. Lhamon. Thank you so much for the question. As it
happens, I have worked with Minnesota educators who are trying
to address this specific issue, and I am so impressed with the
leadership and the thoughtfulness in the state specifically
about the crisis that you are talking about that and the harm
to students. And in addition to this school to prison pipeline,
which in itself is obviously very distressing, we are pushing
children out of school where they are losing educational time
and we are not holding our whole communities so that our
students can get the education that is their right.
I am passionate about it. It is--this topic was among the
very first issues that the Office for Civil Rights addressed
when it first started, when we only had--the Office only had
jurisdiction over Title VI and was addressing school
desegregation. But this issue of disparities in discrimination
and discipline was part of those original desegregation
agreements.
That it has persisted to this day means that we have not
gotten our arms around it as a country, and we are not doing
enough right by our kids. But we do have so many educators like
those you describe in Minnesota who are working specifically on
it. It would be important to me to be able to work with school
communities to identify practices that are going well and to
hold hands to figure out how to make sure that we don't see
those kinds of disparities persist and that we don't see
discrimination.
Those are different things, but that we don't see
discrimination take place in schools. And I think it is crucial
to reinstate guidance on the topic. And I think it is crucial
to be clear with school communities about what the civil rights
obligations are and how best to do the work in their
classrooms.
Senator Smith. Thank you so much. You said in your
testimony that our job is to make real in the lives of students
the laws that Congress has enacted, and that the Constitution
guarantees. So I hear that in your answer. And I really
appreciate that. Mr. Rodriguez, I just have a little bit of
time left, but I wanted to talk with you a little bit about
the, Every Student Succeeds Act and how it supports
opportunities for students to receive high quality STEM
education and also pursue advanced coursework while they are in
high school, as well as, getting advanced coursework done.
We have a great program in Minnesota, the post-secondary
enrollment option, which is a huge benefit to students as
they--it helps them get the coursework that they want. It also
helps them to save money once they are entering higher
education. So in just a few seconds I have left, could you just
talk a little bit about how you see these kinds of options, how
important they are for students and our Country, and what we
should do to support them as well?
Mr. Rodriguez. Yes, well thank you, Senator, for the
question. And it is such an important issue. We have to do
better to provide our young people the opportunity to prepare
fully and to engage more fully and earlier in their career,
even in middle and high school, in terms of what comes next,
whether that is post-secondary education, career training,
workforce readiness. And we know there is so much promise in
some of these dual enrollment and early college high school
programs.
We also know that the data tells us that our students of
color and our students that are concentrated in high poverty
schools are much less likely to have access to those programs.
So, if confirmed, I would be looking forward to looking more at
that data and determining what we can do to really help partner
and provide more guidance to our districts and more support to
expand those opportunities to earn early college credit, to
gain the workforce readiness skills and the post-secondary
readiness orientation that they need to be able to transition
into higher education and complete their degree, and there is
just so many countless examples of where communities have done
that well.
Our young people are looking forward to their future. They
want to engage in that opportunity to prepare for college and
for their future earlier. And so, much of that is about our
catching up as a system to be able to support them and to meet
them where they are.
Senator Smith. Thank you so much. Thank you, Madam Chair.
The Chair. Thank you.
Senator Collins.
Senator Collins. Thank you. First, let me welcome all three
of our nominees today. Ms. Lhamon, let me start with you. I
want to follow-up on Senator Smith's question to you about
school discipline. Do you believe that school discipline should
primarily be a state and local matter, or should it be dictated
by the Federal Government?
Ms. Lhamon. Oh, I hope very much that school discipline
would be a local matter in the main--in the first instance.
Senator Collins. Thank you. I would hope that it would go
without saying, but I am going to say it nevertheless, that
each and every Member of this Committee is very concerned about
sexual assault on campus. We should have a no tolerance policy.
The Sixth Circuit, along with other courts, has ruled, however,
that in conducting Title IX investigations of sexual assaults,
that public institutions of higher education must provide
parties with an opportunity to see the evidence, to cross
examine before a neutral fact finder.
At your interview with the HELP Committee staff, you stated
that you do not believe that accused people should necessarily
have that right in all instances to know the evidence being
used against them. And in fact, your Title IX guidance that you
issued in 2014 did not provide for the opportunity for cross
examination. The Title IX rule issued by--that is in effect
right now grants equal rights to both the accuser and the
accused to access and inspect relevant evidence in sexual
misconduct or assault cases in schools.
Will you ensure, as you look at this issue, that there are
due process protections for both the accuser and the accused in
any Title IX reform that your office undertakes and that it is
in accordance with decisions such as that issued by the Sixth
Circuit?
Ms. Lhamon. Thank you so much for the question, Senator
Collins. And this is an issue that I struggle with. I think is
an issue I understand to be important to your constituents and
around the country. I will say several things. One, I will
absolutely follow the law. The Sixth Circuit is binding on the
states that are within it and I would absolutely ensure that
the enforcement practice of the Office for Civil Rights follows
binding law. In addition, you asked what I would do with
respect to changes in the regulation, and I don't control that
on my own.
The regulation that the Department is considering will go
through a process that includes the Department of Education,
all of the other Departments that have equities in Title IX,
the Department of Justice, the White House, and there will be
an ultimate decision. I am not there. I don't know what public
comment has been. I don't know how that process is going. I
would--it would be very important to me to ensure that there is
absolute fealty to what the law is and that colleges and
universities, school districts, students are not subject to
competing authorities.
I can promise you that. In in addition, I just want to
clarify that the 2014 guidance that I signed, did not direct
that cross examination could not happen. And it also did direct
that if it happened, that there should be parity as between ACU
students and complainants. And it strongly discouraged that the
students themselves participate in the cross examination, which
is consistent with the Title IX regulation that is current now.
Senator Collins. When you were Assistant Secretary, as
Senator Burr mentioned, you often relied on informal guidance
to implement significant policy reforms. That concerns me
because I think that the APA, the Administrative Procedure Act,
is really important to get public input, and that when we get
public input, we usually come out with better informed
regulations. Do you still intend to, if you are confirmed, to
rely on guidance or dear colleague letters rather than going
through the formal process?
Ms. Lhamon. Senator, the Department has begun the formal
process now with respect to Title IX. So----
Senator Collins. I mean in general.
Ms. Lhamon. I will say I am really excited about the
opportunity to participate in the regulatory process. I didn't
have that opportunity when I led the Office for Civil Rights in
2013 through 2017. When I came that time, the regulatory agenda
was largely set. I was there in the second term of the Obama
administration. So it is really a thrill to me to contemplate
being able to participate in that process. And I look very much
forward to it. That would be very different for me.
Senator Collins. Thank you.
The Chair. Thank you.
Senator Murphy.
Senator Murphy. Thank you very much, Madam Chair. Good to
see all three of you. Simon, great to see you back reentering
public service. I was grateful to work with you during your
prior time at the Department. Two quick comments. I suspect
that Senator Tuberville's line of questioning will be the last
time that we hear in this Committee about the issue of
transgender athletes. And I am not speaking to the intent of
anybody on this Committee, but I do know that the intent of
many others behind this public relations campaign isn't really
to protect female athletes. The number of female athletes that
are going to be impacted by high level transgender athletes is
fairly, fairly infinitesimal.
Much of this agenda really is, unfortunately, about trying
to marginalize these kids and make people fear them, make
people see them as a threat. Nothing could be further from the
truth. These are kids who, just like all of our kids, want to
participate in athletics, an experience that is central to
coming of age for millions of kids all across this country. And
the idea that we would deny that to anyone in this Nation
simply because of their sexual orientation I think is deeply
un-American. Second, I want to associate myself with the
comments and the questions from Senator Smith.
I won't spend time asking questions about school discipline
here, but I want to thank Senator Murray for being such a great
partner on a number of initiatives that I hope the Committee
will be taking up, in particular initiatives around the way in
which we restrain and seclude children when they are acting
out. Far too many kids are effectively being physically hurt,
often shuttered into what some schools call scream rooms when
they are acting out and often as a manifestation of their
disability. And I hope that we will pursue legislation that is
going to try to make sure our schools are using best practices
when it comes to restraining our kids, best practices writ
large on matters of school discipline.
I agree with Senator Collins. This is a local matter, but
the Federal Government has helped school districts by providing
some really solid guidance and enforcement when necessary, when
school discipline is being meted out very differently to kids
of color or kids with disabilities. But I want to ask you about
another topic, and that is a really disturbing trend that has
been playing out for a number of decades. I mean, it is
essentially what we have seen across the country is in some
ways a resegregation of American schools.
I think we just took it for granted over a number of years
that we had gotten beyond the days in which White kids and
Black kids and Hispanic kids went to school differently, that
we were on a path to be able to make sure that everybody had
the opportunity to go to schools that were racially and
economically diverse. But if you look at just the time since
1988, the share of what we call intensely segregated nonwhite
schools has more than tripled in this country today. More than
one third of White students in this country go to racially
isolated schools where their schools are 90 to 100 percent
white.
I think that robs kids--I don't think the Federal
Government needs to play a heavy hand here, but I think that
does rob kids of a really critical experience of going to
school with kids that come from different backgrounds than you.
I have introduced legislation that would simply provide some
Federal funding to help voluntary efforts at the state and
local level when states and local Governments want to try to
offer opportunities for school districts to integrate both
socially and economically.
My question just to you is, how important do you think it
is for students to attend racially and socially, economically
diverse classrooms? And what role do you think the Federal
Government can play in making sure that all our schools can be
diverse and inclusive learning environments?
Ms. Lhamon. Well, I think it is crucial, Senator. I think
that giving our students an opportunity to learn in
environments that reflect the world is really important and
prepares them for their working lives and for democratic
participation thereafter. So I think it is crucial and that one
of the programs that I love that the Office for Civil Rights
has an opportunity to manage is the Magnet Schools Assistance
Program.
Connecticut schools are huge beneficiaries actually in that
program historically and have really led the Nation in terms of
the kinds of integration and truly amazing kinds of experiences
that schools can offer that I think many other states could
benefit from watching and replicating that. But for me, that is
a program I am eager to be able to return to and to be able to
help facilitate that desegregated, integrationist efforts that
follow from it.
Senator Murphy. Well, this wasn't a set up, but I
appreciate your--I appreciate your championing of the Magnet
School program. We have a Federal grant fund that I lead a
letter every year of Republicans and Democrats asking for
increased funding for magnet schools because they are a
wonderful way for school districts and states to be able to
bring kids together from across a broad spectrum of
backgrounds. So look forward to working with you on that. Thank
you, Madam Chair.
The Chair. Thank you.
Senator Cassidy.
Senator Cassidy. Thank you all for offering to serve.
Really appreciate it. Mr. Lhamon, you had mentioned in your
response to Senator Burr about how you would enforce current
law. But I have a tweet here from May 2020 in which you say,
@betsydevosed presides over taking us back to the battle old
days a pre-date my birth when it was permissible to rape and
sexually aroused students with impunity. Students deserve
better, including very protections consistent with the law.
Now, that was your tweet about the law that you are currently
saying that you will enforce.
Do you want to square that circle? Do you see what I am
saying? It seems as if you are saying to Senator Burr that you
are going to defend something which you say gives permission to
rape and sexually harass students with impunity. Would you
really use those laws or do you have an issue with the laws or
would--I don't--there seems to be a cognitive dissonance here.
Ms. Lhamon. If I am privileged to be confirmed in this
role, Senator, thank you for asking--if I am privileged to be
confirmed in the role, my responsibility would be to enforce
the law as it exists, and that is the law.
Senator Cassidy. Even though the law says that it gives
permission to rape and sexually harass with impunity, you would
enforce that law?
Ms. Lhamon. Yes.
Senator Cassidy. Okay. I presume therefore you would--just
begging the question that you would then advocate to change the
law as it currently stands?
Ms. Lhamon. Well Senator the Department has begun--I am not
there, but the Department has begun a process to evaluate
that--evaluate that regulation and to determine whether and how
it should be changed.
Senator Cassidy. Do you think as if the law has been
implemented, that it is given the right to rape and sexually
harass with impunity?
Ms. Lhamon. I think the regulation--I think what I said in
the tweet so that the regulation permits students to rape and
sexually harass with impunity. I think that the law, that the
regulation has weakened the intent of Title IX the Congress
wrote.
Senator Cassidy. If somebody rapes, they can do it with
impunity? I mean, if a college kid goes out and rapes a woman,
he has no penalty whatsoever under the current regulation?
Ms. Lhamon. It allows a student to rape--maybe Senator I
could give an example of what I had in mind that I was worried
about when I wrote that tweet. Among the resolutions that I
oversaw when I led the Office for Civil Rights included
resolutions where, for example, at Michigan State a student
reported that she had been sexually harassed by a counselor in
the counseling office when she went to counseling about sexual
harassment. She reported it to the counseling office. Under the
current regulation, there would be no responsibility for the
school to investigate.
Senator Cassidy. If he raped her, would there be, or she
raped her would there be a consequence under current rules?
There certainly would be under criminal law, right?
Ms. Lhamon. If someone chose to prosecute, the criminal
process would apply. If a student had been raped and did not
report to the Title IX coordinator or to someone else at the
school designated as able to bind the school, the school would
have no responsibility to take action under the current----
Senator Cassidy. I assume the DA would.
Ms. Lhamon. The DA would have an option to choose whether
to prosecute.
Senator Cassidy. Okay, let me ask you something else. I am
going to bring up transgender, not because, as Senator Murphy
suggested, want to discriminate against these kids. It is just
I am a doctor. If you take a child who is post adolescent and
who was born a male, he or she, if he is undergoing the
transition, is going to be physiologically much stronger than
the female. Period. End of story. That is objective truth.
Now, that said, if he or she, she has made the transition,
competes on a track event, she is going to win. If she is
throwing the shot-put and she is built that way, she is going
to win. It seems as if the discrimination cuts both ways. And I
think that is what Senator Tuberville was saying that you don't
want to discriminate against the young person who is undergoing
transition, but it is effectively a discrimination against the
young lady who was born a biologic female because she has no
chance. It will be effectively an inability for her to win.
I agree, it is infinitesimally small. On the other hand,
isn't it something that we should consider? Now, do you feel as
if the young lady is being discriminated against in those
circumstances, the biologic female?
Ms. Lhamon. Senator I would need to know more facts to be
able to answer that in the abstract. I think you are absolutely
right to lift up the concern for every student and that
nondiscrimination right to Title IX provides applies to every
student. And that if I were at the Office for Civil Rights and
we were investigating a complaint or a set of circumstances of
the type that you are describing, we would be absolutely
concerned to make sure that----
Senator Cassidy. You are being a little lawyerly there. Ms.
Brown, real quickly, my last, you will be tasked with looking
at the legality of debt cancellation. And there is just an
article in The Wall Street Journal out, Columbia University,
the average person going to their master's in film ends up with
debt of $181,000 and they get paid $30,000.
That is because I am told that for graduate programs, the
amount of debt that is allowed is uncapped. Aren't we creating
a moral hazard for school like Columbia to charge even more for
a program which really pays very little relative to the cost if
we begin to do debt cancellation? I mean, do you have an
opinion on that?
Ms. Brown. Excuse me, Senator. If I am lucky enough to be
confirmed, my job is to advise on the legal aspects and I am
not the policymaker, so I have to defer to the policymakers on
any policy questions.
Senator Cassidy. Your opinion.
Ms. Brown. This is--student debt is a very, as you know,
very highly regulated area with a number of congressional
authorities. And I will very much look forward to ensuring that
the Department is enforcing those authorities----
Senator Cassidy. Columbia may have a real payday in the
future. Anyway, thank you very much. I yield back.
The Chair. Senator Lujan.
Senator Lujan. Thank you to Chair Murray and to Ranking
Member Burr for holding this important hearing. And thank you
to each of the witnesses and for all the families joining us
today to effectively serve and educate all of their students.
Hispanic serving institutions require up to date and smart
infrastructure. Unfortunately, many HSI classrooms are out of
date.
Their libraries lack essential digital asset holdings, and
their buildings are not equipped with the necessary broadband
and technology that enhances the teaching and learning
experiences for students. That is why I led a letter with
Senators Maria Menendez and Cortez Masto to leadership
advocating for additional infrastructure funding for each site.
Mr. Rodriguez, how would you, as Assistant Secretary for
Planning, Evaluation and Policy Development, address the
disparities we see in HSI infrastructure funding?
Mr. Rodriguez. Well, thank you, Senator, for the question
and thank you for your leadership in helping to further secure
and strengthen our Hispanic serving institutions. They are
critical sources of support and higher education for millions
of our students. And if confirmed, I would look forward to
working closely with our Office of Post-Secondary Education,
with the Office of Undersecretary and with the Secretary to
explore how we can further support and strengthen all of our
minority serving institutions, but certainly our Hispanic
serving institutions.
I know that there is a need for more dedicated dollars,
specifically for infrastructure, for broadband, but also for
modernization of facilities across our HSIs. And they play an
important role not just in supporting higher education
attainment for our Latino community, but also for supporting a
robust learning community in many of our Latino communities
around the country. So I would look forward to working closely
with you and with my colleagues and the Administration to that
end.
Senator Lujan. Well, and as a reminder, 66.8 percent of
Hispanic students, 41.3 percent of Asian students, 35.6 percent
of Native Hawaiian Pacific Islander, 26.2 percent multiracial,
24.2 percent of Black, 15 percent of White students attend
HSIs. And so we are providing more of a reach when there is
support here. Mr. Rodriguez, in your role as Chief Executive
Officer of Teach Plus, you emphasize the importance of
educators having a role in setting policy. As the Assistant
Secretary for the Office of Planning, Evaluation and Policy
Development, how will you advise Secretary Cardona to support
the recruitment and retention of diverse teachers?
Mr. Rodriguez. Well, Senator, thank you for the question.
This is a really important priority for me personally, and I
have worked hard over my tenure at Teach Plus to raise the
voices and the vision and the support of our teachers to
diversify our teacher pipeline and to do better in terms of how
we are preparing and supporting the success in the early years
of our diverse educators across the country. We know that over
half of our public school enrollment now are students of color,
and yet fewer than 20 percent of our teachers are teachers of
color. When we look at our Latino teachers, for instance, are
Latino male teachers, we are looking at less than 5 percent of
the teaching workforce.
It is an important signal and opportunity for students to
be able to have windows and mirrors, to be able to see
themselves in their education and to be able to have that level
of mentorship and support across their learning. The--as you
know, Senator President Biden's budget places a high priority
on improving the preparation and building the pipeline for our
diverse educators. Beyond that, in addition to that pre-service
experience, we know that we have much more work to do to build
opportunities for leadership and advancement in the field so
that we not only are recruiting but retaining our teachers of
color in their buildings.
That is about building a stronger school culture. That is
about providing opportunities for our teachers of color to not
have to pay an invisible tax alongside their nonminority peers
in terms of their professional career, to be able to take on
opportunities to shape instruction, shape culture, support
learning, alongside their principles. And it is also about
doing better in terms of training and orienting our principles
in our other teachers.
I would look forward, I am excited about that agenda and
about the opportunity to contribute to that further. And we
will look forward to working with you and others to that end.
Senator Lujan. Thank you. And Chair, I do have another
question, but I will submit it into the record for a response.
Thank you again. And thank you to the witnesses and your
families for being here.
Mr. Rodriguez. Thank you.
The Chair. Senator Kaine.
Senator Kaine. Thank you, Chair Murray, Ranking Member
Burr, and congratulations to the nominees. Ms. Lhamon, I want
to talk to you about a topic that I know is very important to
you from your time working with the commission, the Civil
Rights Commission, but it is also a huge part of the workload
of the office to which you are nominated and to which I hope
you will be confirmed, and that is students with disabilities.
I was surprised to learn in my discussion with you that the
biggest component of the workload of your office is issues
dealing with students with disabilities. Maybe describe that,
if you would.
Ms. Lhamon. Sure. Thank you, Senator. Historically, at the
Office for Civil Rights, roughly 60 percent of the complaints
that come in are complaints that address issues related to
students with disabilities, and that has held steady over time.
So the vast majority of the work that the Office for Civil
Rights does is to protect the civil rights of students with
disabilities. And I am passionate about it.
Senator Kaine. How--what are some areas of just sort of
right out of the gate, should you be confirmed, that you would
be focused on in trying to advance the educational success of
students with disabilities?
Ms. Lhamon. Well Senator, first, I strongly believe that so
much of the work of the Office for Civil Rights is complaint
driven. It tends to receive more than 10,000 complaints a year.
And so some of that would be depending on what kinds of
complaints are coming in and what are the range of issues that
people are addressing. The kinds of issues that I have not lost
sight of in the four and a half years since I left the
Department include times when schools subjected students
unlawfully to restraint and seclusion. And there was one case
in particular, I remember the mom driving up to the school and
hearing her 9 year old inside the school screaming because the
child was subject to restraint.
In that case, the child had been subject to prior restraint
in the school year for more time than the child had not at
school. And that is unconscionable. I mean, that child may
never recover from the harm that the school visited on the
child and the child could have died. So those kinds of
circumstances are ones I hope never to see repeated. And I was
so proud to be able to work with the Office to correct that for
the family and also to ensure that no other child would be
subjected to that harm. Another investigation I think of, and
this one sounds small, but it was enormous for the family, it
was a child who had been admitted to a charter school. And
charter schools are public, as we know, and that once admitted
the family had come to an admission and school leadership had
seen that the child had difficulty walking down a short
distance.
The school communicated to the family that the child
couldn't come. They disenrolled with the child and said we
don't serve mental disabilities and we can't serve your child.
It was a five inch drop to the playground for this kindergarten
to be able to get down. And it would require a ramp to make
sure that he could get there, and the school was going to
exclude him because of his disability. And we stopped that from
happening.
You know that the inclusion, that the assurance that every
child is valuable, that every child can be part of a school
community is what I want to return to. And I will say, so, this
is very personal for me. My brother has cerebral palsy, and I
grew up watching educators ensure that my brother could be
fully included in class and the difference that it made in his
life and my family's life.
He is a teacher now. So, it meant the world for him, and he
is giving back. And I want to make sure that every other
student, like my brother, has that kind of opportunity.
Senator Kaine. This is extremely important to me
personally. And I know many Members of the Committee feel the
same way. And one of the things I have always noticed about
education policy for students with disabilities is whatever
Congress does in education, like No Child Left Behind, you will
get Governors and folks in states and localities saying you
shouldn't have done that, please repeal it.
Nobody has ever said repeal IDEA, except we should fund it
better or sometimes the paperwork is too intense. But it is
probably like the only law that has ever been passed in an area
where there is controversy about everything that no one has
ever said repeal it because the delta between what students
with disabilities were able to achieve pre-IDEA and what they
have achieved because of the IDEA is so vast and there is still
so much more that we can do. Let me ask you one other question
on this topic, the pandemic has been horrible. However, we have
learned some things during the pandemic that we shouldn't lose
sight of the lessons we have learned.
The ability of educators, both K-12 and higher level, to
advance virtual online zoom learning does provide some
opportunities for students, some students with disabilities and
some families that we shouldn't let go of. We should continue
to incorporate that if it is the right thing for the student.
Would you agree with me on that?
Ms. Lhamon. I absolutely agree that we should incorporate
what is right for students and I would want to make sure that
we have appropriate civil rights guardrails in place also. But
I am very grateful that there are some silver linings that we
can find from this pandemic, including ways to best serve
students and schools.
Senator Kaine. Great. Thank you so much. Thank you, Chair
Murray.
The Chair. Thank you.
Senator Burr.
Senator Burr. Madam Chair, just a couple of follow-up
questions, if I can. Ms. Lhamon, the circuit court decisions
that have been referenced to, Third and Sixth respectively,
were determined in 2018 and 2020. Were those decisions in place
when you were at OCR before, would that have limited what you
would have been able to impose on Title IX in your estimation?
Ms. Lhamon. Senator had those decisions been in place, the
Office for Civil Rights absolutely would have followed them in
their jurisdictions where they are controlling.
Senator Burr. Okay, thank you for that. Earlier, you said
that the current Title IX regulation didn't include a
presumption of innocence standard. And in fact, in sections
106.45, the regulation says this, ``include a presumption that
the respondent is not responsible for the alleged conduct until
a determination regarding responsibility is made at the
conclusion of the grievance process.'' So you gave me a crafty
answer.
Let me ask you again, the current regulation requires a
presumption that the respondent is not responsible until proven
otherwise, which we commonly call presumption of innocence. My
question is not about the current regulation, but what you
think should be the standard. Should the standard be
presumption that the respondent is not responsible until proven
otherwise?
Ms. Lhamon. Senator if I may, I did not mean to over-lawyer
you on that answer and I appreciate that chance to come back to
it. I, maybe because I am a lawyer, I am so focused on a
criminal process that is different from an administrative
process in school. And I will enforce the standard that exists.
And to your question about what should or shouldn't be there, I
want to say that the views I hold sitting here are not the
views that I would be able to impose or not impose.
There is a regulatory process that involves lots of people,
not only me, not me at all at the moment, that is underway at
the Department of Education. But my view is that civil rights
investigators, investigators at schools need to start from the
presumption that the facts are what they are, and you need to
find out what they are. So they shouldn't be assuming somebody
is guilty because the person has been accused, shouldn't be
guilty--guilty is not even the right word. So now I have walked
into the criminal process.
They shouldn't be assuming that someone is responsible
because a person has been accused. They should be open to the
possibility that the person is not. And I absolutely support
that. I think that is important in an investigative process.
Senator Burr. I am appreciative. That clears some things
up. It doesn't go unnoticed that you have repeatedly answered
on this side of the aisle that you really are not in control,
that there is a process. But when you answered over there, your
answer was, you accept that you will have authority and
responsibility for policy and recommendations made by your
office. Can't be both ways. And it is not a question, I just
want to point it out because I think sometimes it is good to
reflect on what you have said and to whom you have said it.
I think that we have tried to emphasize the fact that
public comment, transparency, input comments are an important
part. And that was not necessarily the path that you chose last
time you were in the Office. I hope this time we will choose a
pathway that does include public comment, if that is what the
officer is doing currently before you are confirmed. Great. I
look forward to sharing those comments with us prior to any
decision that you might make. I thank the Chair.
The Chair. Ms. Lhamon, do you want to respond?
Ms. Lhamon. Thank you. Senator Murray and Senator Burr.
First, I appreciate your confidence I will be confirmed. So
thank you for that. And I did not mean to communicate a
different answer to one side of the aisle than to the other. I
said in my opening that I believe civil rights are bipartisan.
I believe that they are. And I would be evenhanded in the ways
that I work with Members of Congress, and I would be evenhanded
in the ways that I would be enforcing the law if I were
confirmed to the Office.
The Chair. Thank you. That will end our hearing for today.
And I want to thank all of our colleagues for their
participation. I really want to thank all of our witnesses, Ms.
Lhamon, Ms. Brown, Mr. Rodriguez, for your time and for your
very thoughtful answers to all of you. I look forward to
working with each of you to tackle the challenges that students
and educators and schools are facing.
For any Senators who wish to ask additional questions,
questions for the record will be due tomorrow at 5 p.m.. The
hearing record will remain open for 10 business days for
Members who wish to submit additional materials for the record.
This Committee will meet next on Thursday, July 15th at 10
a.m. at Dirksen 430 for a hearing on the nominations of David
Weil to serve as Administrator of the Wage and Hour Division of
the Department of Labor, and Gwynne Wilcox and David Prouty to
serve as members of the National Labor Relations Board. And
with that, the Committee stands adjourned. Thank you.
ADDITIONAL MATERIAL
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[Whereupon, at 11:51 a.m., the hearing was adjourned.]
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