In a hearing in 2014, I had this exchange with the former Assistant Secretary for Civil Rights at the Department of Education, Catherine Lhamon:
Alexander: Ms. Lhamon, you talk about something called guidance and I've got here about 66 pages of guidance under Title IX. Do you expect institutions to comply with your Title IX guidance documents?
Lhamon: We do.
Alexander: You do. What authority do you have to do that? Why do you not go through the same process of public comment that the [Department of Education] is going through under the Clery Act?
Lhamon: Well, we would if they were regulatory changes.
Alexander: Why are they not regulatory changes? You require 6,000 institutions to comply with this, correct?
Lhamon: We do.
The problem with that exchange is that guidance documents are not law. Laws are created by the Congress, or in some cases, the Department may issue regulations within the authority that Congress has granted, and an agency must follow proper procedures that include public comment.
Public comment is especially important when issues are complex and have a great deal of difference of opinions. This certainly is true on the issue of the standard of proof colleges must use when investigating allegations of sexual misconduct.
In April 2011, the Education Department had issued guidance under Title IX that told colleges for the first time the standard of proof that must be used when investigating these allegations.
I was glad to see Secretary DeVos end this overreach and recognize the difference between the law and guidance, and announce that the Department will conduct the proper public rulemaking process to hear from students, college administrators, and others to help schools protect the safety and rights of all students.
The Office for Civil Rights has the important responsibility of ensuring that Title IX and other civil rights laws, and the protections they provide to all students, are fully enforced.
If confirmed, Mr. Marcus, I hope you will also recognize the difference between the law, which is binding, and guidance, which is not.
Mr. Marcus, you have a deep understanding of civil rights issues, having founded the Louis D. Brandeis Center for Human Rights Under Law and having served as Staff Director of the U.S. Commission on Civil Rights for four years. You also led the Office for Civil Rights at the Department of Education under President George W. Bush for a period of time when it didn't have a confirmed official in that office.
I have letters from 13 individuals and organizations who support your nomination to lead the Office for Civil Rights, including Hillel International, the largest Jewish campus organization in the world, who said, "Mr. Marcus has been a longtime champion for civil rights and for college students. We have worked personally with him on several campuses across the country in response to specific issues of bigotry and discrimination, and we have found him to be extremely skilled and knowledgeable in Civil Rights laws. Mr. Marcus has been a true leader in fighting discrimination "
I ask unanimous consent to insert the letters into the record.
You were nominated on October 30. On November 8, the Committee received your Office of Government Ethics paperwork, including your public financial disclosure and ethics agreement. On November 28, we received your committee paperwork.
Now, Mr. Collett, five organizations support your nomination, as a result of your long history in special education.
I ask unanimous consent to insert these statements and letters into the record.
Mr. Collett, you have been a high school special education teacher, served as Director of the Division of Learning Services at the Kentucky Department of Education, and your current role is Director of Special Education Outcomes at the Council of Chief State School Officers.
You also previously served on the board of directors of the National Association of State Directors of Special Education.
That Association applauded you for having "worked with stakeholders in the disability community at the local, state, and national levels."
You were nominated on November 16. On November 28, the Committee received your committee paperwork. And on November 29, the committee received your Office of Government Ethics paperwork, including your public financial disclosure and ethics agreement.
Today, we also are considering two nominees for the Department of Labor.
The first is Scott Mugno, to serve as Assistant Secretary of Labor for Occupational Safety and Health at the Department of Labor.
This position is especially interesting to me because in the early 1970's, my father received a call from Governor Winfield Dunn, who asked him to be a Commissioner on the first Tennessee Occupational Safety and Health Review Commission.
At the time, my father was the safety director at the Smelter plant in Alcoa, Tennessee.
So I grew up seeing my father's pride when the plant went a long number of days without an accident, which instilled in me the importance of workplace safety.
You can imagine, therefore, that I have a lot of respect for your experience at FedEx, where you currently serve as the Vice President for Safety, Sustainability and Vehicle Maintenance for FedEx Ground in Pittsburgh.
You have held legal positions at FedEx Express, Westinghouse Electric Corporation, and the U.S. Army JAG Corps.
Of special note, you also lived in Memphis for 18 years, where you and your wife raised your two daughters.
You were nominated on November 1. On November 13, the Committee received your committee paperwork. On November 14, the committee received your Office of Government Ethics paperwork, including your public financial disclosure and ethics agreement.
Mr. Mugno, I have received two letters and have statements from five organizations in support of your nomination that I would like to have included in the record.
As Commissioner of Labor Statistics, Dr. Beach, you will oversee the Bureau that is responsible for collecting and publishing the data that tells us how our economy is doing, including the unemployment rate and changes in consumer prices.
As fewer people have landlines and more people use cell phones and social media to communicate, it is getting harder to reach people in order to obtain these figures.
There is also the challenge of how to engage with the public on these important figures without seeming like we are cherry picking the best results.
Data itself is non-partisan, and at the Bureau, you will be leading an agency that collects data and does not make policy.
I hope you will have an opportunity at this hearing to tell us how you plan to adapt to these challenges when you release the data gathered through the Household and Community Surveys.
Dr. Beach, you are well equipped to lead this organization and meet these challenges, having served as the Chief Economist for the Senate Budget Committee from 2013 to January 2016 and as a Director at the Center for Data Analysis at the Heritage Foundation prior to that. Currently, you are the Vice President for Policy Research at the Mercatus Center at George Mason University.
You were nominated on October 24. On October 28, the Committee received your Office of Government Ethics paperwork, including your public financial disclosure and ethics agreement. On November 21, we received your committee paperwork.
Mr. Beach, I have received three letters of support for your nomination that I would like to have included in the record.
Thank you all for your willingness to serve. I look forward to hearing from our nominees.