[Senate Hearing 114-757]
[From the U.S. Government Publishing Office]
S. Hrg. 114-757
NOMINATION OF DR. JOHN KING TO SERVE AS SECRETARY OF EDUCATION
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
ON
EXAMINING THE NOMINATION OF JOHN B. KING, OF NEW YORK, TO BE SECRETARY
OF EDUCATION
__________
FEBRUARY 25, 2016
__________
Printed for the use of the Committee on Health, Education, Labor, and Pensions
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys/
U.S. GOVERNMENT PUBLISHING OFFICE
29-727 PDF WASHINGTON : 2018
____________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800
Fax:(202) 512-2104 Mail:Stop IDCC,Washington,DC 20402-001
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington
RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia BERNARD SANDERS (I), Vermont
RAND PAUL, Kentucky ROBERT P. CASEY, JR., Pennsylvania
SUSAN COLLINS, Maine AL FRANKEN, Minnesota
LISA MURKOWSKI, Alaska MICHAEL F. BENNET, Colorado
MARK KIRK, Illinois SHELDON WHITEHOUSE, Rhode Island
TIM SCOTT, South Carolina TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas ELIZABETH WARREN, Massachusetts
BILL CASSIDY, M.D., Louisiana
David P. Cleary, Republican Staff Director
Lindsey Ward Seidman, Republican Deputy Staff Director
Evan Schatz, Minority Staff Director
John Righter, Minority Deputy Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, FEBRUARY 25, 2016
Page
Committee Members
Alexander, Hon. Lamar, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 4
Enzi, Michael B., a U.S. Senator from the State of Wyoming....... 16
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 18
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 19
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 21
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina. 23
Murphy, Hon. Christopher, S., a U.S. Senator from the State of
Connecticut.................................................... 25
Collins, Hon. Susan, a U.S. Senator from the State of Maine...... 27
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 28
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas....... 30
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska.... 32
Guest Representative
Scott, Hon. Bobby, a U.S. Representative from the State of
Virginia....................................................... 6
Witness
King, John B., Jr., Ph.D., Acting Secretary, Department of
Education, Tacoma Park, MD..................................... 8
Prepared statement........................................... 10
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Letter submitted by Senator Alexander........................ 42
Title IX letters submitted by Senator Murray................. 42
Letters of support........................................... 56
Response by John B. King, Jr., Ph.D.to questions of:
Senator Alexander........................................ 69
Senator Enzi............................................. 75
Senator Murkowski........................................ 76
Senator Scott............................................ 79
Senator Hatch............................................ 81
Senator Cassidy.......................................... 82
Senator Murray........................................... 84
Senator Sanders.......................................... 88
Senator Franken.......................................... 90
Senator Bennet........................................... 91
Senator Whitehouse....................................... 94
Senator Warren........................................... 95
(iii)
NOMINATION OF DR. JOHN KING TO SERVE AS SECRETARY OF EDUCATION
----------
THURSDAY, FEBRUARY 25, 2016
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 2:05 p.m., in
room 430, Dirksen Senate Office Building, Hon. Lamar Alexander,
chairman of the committee, presiding.
Present: Senators Alexander, Murray, Enzi, Isakson,
Collins, Murkowski, Scott, Roberts, Cassidy, Casey, Franken,
Bennet, Whitehouse, Murphy, and Warren.
Opening Statement of Senator Alexander
The Chairman. The Committee on Health, Education, Labor,
and Pensions will please come to order.
Our hearing today is on the nomination by the President of
Dr. John King to serve as the U.S. Secretary of Education.
Senator Murray and I will have an opening statement, and then
we'll introduce the nominee. After Dr. King's testimony,
Senators will each have 5 minutes of questions.
We especially welcome Bobby Scott from the House of
Representatives, whose leadership played such a key role in the
passage of the Every Child Succeeds Act. It would not have
happened without him. He was forceful and diplomatic and
oriented toward results, so we admire that and appreciate his
work on that, and I'll introduce him later to introduce Dr.
King.
And we welcome Dr. King's family, who I know are here, and
I'll let him introduce them at a later time.
I'm very glad we're having this hearing today. When Senator
Murray and I and Representative Scott and others were at the
White House on December 10th for the signing of No Child Left
Behind by President Obama, I urged the President to send to the
Senate a nominee to succeed Education Secretary Arne Duncan. I
did that because this is such an important year for schools.
We need an education secretary who is confirmed and
accountable to Congress while we're implementing a law that may
govern elementary and secondary education for years to come. I
want to be sure that we're working together to implement it as
Congress wrote it. So, congratulations on your nomination, Dr.
King.
And if you'll permit a personal note, this very month 25
years ago, I was sitting in the very same position that you're
sitting today, having been nominated as U.S. Education
Secretary by President George H.W. Bush. I remember thinking
that the Senators had deliberately sat me way down there and
them way up here so I'd be intimidated by that. The hearing
lasted 4 hours. We won't do that to you today, I don't think.
My appointment was announced in December, but I wasn't
confirmed until March 14th.
What happened to me at the hearing--and my family was
there, like yours; I can remember it vividly--Senator
Metzenbaum from Ohio said, ``Well, Governor Alexander, I've
heard some disturbing things about you.'' And I said, ``Oh?''
And he said, ``But I'm not going to bring them up here today.''
[Laughter.]
And Senator Kassebaum leaned over and says, ``Well, Howard,
I think you just did.''
[Laughter.]
And he probably put a hold on me, and I hung for about 3, 2
months waiting for that to be lifted. I don't suspect you're
going to have any of that sort of problem today.
Senator Dan Coats, currently a Senator, was on this
committee then, and he said at that hearing 25 years ago many
of the States are way ahead of the Federal Government in terms
of opening themselves up to more innovative solutions in
education. That was true then; it's true today.
When the President signed into law the Every Student
Succeeds Act in December, he was signing a law that passed the
U.S. Senate 85 to 12. Nineteen of the 22 members of this
committee voted for it. I believe it's fair to say that every
single member of this committee made some contribution to the
result. We achieved the result because, as Newsweek said, this
was a law that everyone wanted fixed, and fixing it was long
overdue.
Not only was there a consensus about the need to fix the
law, there was a consensus about how to fix it, and the
consensus which we repeated over and over again was this:
Continue the important measures of the academic progress of
students, disaggregate the results of tests and report them so
everyone can know how the school teacher and children are
doing, and then restore to States, school districts, and
classroom teachers and parents the responsibility for deciding
what to do about the tests and about improving student
achievement.
This new law is a dramatic change in direction for Federal
education policy. In short, it reverses the trend toward what,
in effect, had become a national school board and restores to
those closest to children the responsibility for their well-
being and academic success. The Wall Street Journal called the
new Every Student Succeeds Act, ``the largest devolution of
Federal control of schools from Washington back to the States
in a quarter of a century.''
More importantly, I believe the new law can inaugurate a
new era of innovation in student achievement by putting the
responsibility for children back in the hands of those closest
to them, the parents, the classroom teachers, principals,
school boards, and States.
The law is so important that the Nation's Governors gave it
their first full endorsement of any piece of Federal
legislation in 20 years. The last time they did that was the
welfare reform bill in 1996. The law has the support of
organizations that do not always see eye to eye. In fact,
almost every education organization that supported the bill is
already beginning to work together to help to implement it.
We held a hearing with several of them on Tuesday. Those
groups have formed a coalition made up of the following: the
National Governors Association; the School Superintendents
Association; the National Education Association; the American
Federation of Teachers; the National Conference of State
Legislators; the National Association of State Boards of
Education; the National School Board Association; the
Association of Elementary School Principals and of Secondary
School Principals; the National Teachers Association; and it
also has the support of the Chief State School Officers.
Any of us who have been around education knows that these
groups do not always see eye to eye all the time, but they do
on this bill. You already know this because they've sent you a
letter in which they said,
``Although our organizations do not always agree, we
are unified in our belief that ESSA,'' or, as Senator
Franken says, ESSA, ``is an historic opportunity''--
that's your suggestion, right? For what we call it?
Right.
[Laughter.]
``ESSA is an historic opportunity to make a world-
class, 21st century education system, and we are
dedicated to working together at the national level to
facilitate partnership among our members and States and
districts to guarantee the success of this new law.''
Continuing their letter, ``The new law replaces a top-
down accountability and testing regime with an
inclusive system based on collaborative State and local
innovation. For this vision to become a reality, we
must work together to closely honor congressional
intent. ESSA is clear: education decisionmaking now
rests with States and districts and the Federal role is
to support and inform those decisions.''
I will include the letter in our record.
[The information referred to can be found in additional
material.]
The Chairman. The letter accurately reflects the consensus
forged by these disparate organizations and by the Democrats
and Republicans in Congress. The consensus ended the practice
of granting conditional waivers through which the U.S.
Department of Education has become, in effect, a national
school board for more than 80,000 schools and 42 States.
Governors have been forced to go to Washington and play
``Mother May I'' in order to put in a plan to evaluate
teachers, or help a low-performing school, for example. That
era is over.
This law ends what had become, in effect, a Federal Common
Core mandate. It explicitly prohibits Washington from mandating
or even incentivizing Common Core or any other specific
academic standards. It ends the ``highly qualified teacher''
definition and requirements, teacher evaluation mandates,
Federal school turn-around models, Federal test accountability
and adequate yearly progress, because it moves decisions about
whether schools and teachers and students are succeeding or
failing out of Washington, DC and back to States and
communities and classroom teachers, where those decisions
belong.
This hearing provides Congress with the opportunity to ask
questions, learn more about your background, and get your
commitment to work with us if you are confirmed. My colleagues
and I will have questions about such important issues as should
parents have the right to opt their children out of federally
mandated tests, and how will you balance the new law's
requirement on that important issue with deference to State and
local decisionmaking; how will you manage the Department's $1
trillion portfolio of student loans; how do you plan to deal
with the issues raised by Congressman Chaffetz in the House
about the security of information technology systems at your
department; what are your plans for addressing the Office of
Civil Rights' practice of treating guidance issued without
notice and comment as binding on our Nation's college campuses
on the serious issue of campus sexual assault.
You have a distinguished career. You've been a public
school student, a teacher, you founded a charter school, served
as Education Commissioner in New York, a State of nearly 20
million, with responsibility of more than 7,000 public schools,
as well as 270 colleges and universities. You were delegated
the duties of Deputy Secretary of Education by Secretary
Duncan, and you are also the father of two children. You've
seen our education system from nearly every angle.
As you and I have discussed, I believe that if you are
confirmed we will be able to work together not only to
implement the new law governing elementary and secondary
education, but that we can take some bipartisan steps, which we
have already begun in the committee, to make it easier and less
expensive for students to go to college, and that we can begin
to cut through the jungle of red tape that is strangling our
6,000 institutions of higher education. Many of these steps are
well underway. They have broad support, and we should finish
the job.
Welcome to you and to your family. I look forward to
hearing from you today.
Our new Every Student Succeeds Act is an important change
in direction. It is excellent policy. It should provide a much-
needed period of stability for Federal policy in schools for
several years. But we all know that a law is not worth the
paper it's printed on unless it's implemented the way Congress
wrote it. That's why I'm glad the President has appointed an
Education Secretary who can be confirmed and be accountable to
the U.S. Senate. If you are confirmed, I look forward to
working with you to help you and our new law succeed for the
benefit of 50 million children, 3.5 million teachers, and
100,000 public schools.
Senator Murray.
Opening Statement of Senator Murray
Senator Murray. Thank you very much, Chairman Alexander.
Thank you to all of our colleagues for joining us today.
Dr. King, thank you for being here. I, too, want to
acknowledge your wife and two daughters for joining us today.
As we all know, in public service, we cannot do our job
without the incredible support of our families, and having two
daughters in public schools I'm sure provides some tremendous
motivation for you and inspiration for all you do.
I also want to acknowledge my good friend, Representative
Bobby Scott, who is the Ranking Member of the House Education
and Workforce Committee, who has joined us today to introduce
Dr. King to our committee. And I want to take this opportunity
personally to thank you for all your great work and leadership
on education. You've been a true partner throughout your career
on efforts to improve outcomes for all of our children,
regardless of where they live or how they learn or how much
money they make, as well as championing efforts to ensure that
college is affordable to all Americans. So, Bobby, welcome here
to our committee as well.
This is an important time for students of all ages, from
our very youngest learners all the way to those who are
pursuing college and career training. In recent years, the
costs of college have skyrocketed, leaving families and
students to struggle with high costs and the crushing burden of
student debt. And there have been recent cases of institutions
that deceive and mislead students, and of student loan
servicers making it harder for borrowers to pay back their
loans.
When it comes to early learning, we've seen improvements,
but we have much more to do to expand access to high-quality
pre-school so more kids can start school on a strong footing.
And this is a critical moment for K-12 education as schools
and districts and States transition from the broken No Child
Left Behind law to our bipartisan Every Student Succeeds Act
that the President did sign into law late last year. I'll talk
more about that transition a little later.
But with all of these challenges and opportunities, it is
important for the Department of Education to have strong
leadership, and I am confident that Dr. John King is a strong
nominee to transition from Acting Secretary to taking on the
position of Secretary of Education.
Through his personal background he knows firsthand the
power that education can have in a student's life. He has
enriched students' lives as a classroom teacher and as a
principal. He has worked with schools to close the achievement
gap, and he served as the Commissioner of Education for New
York State for 4 years.
Overall, he has spent his career fighting on behalf of
students so they get the chance to learn and grow and thrive in
a classroom and beyond. No one can question his passion for our
Nation's young people.
This Administration, as we all know, has just a little less
than a year left in office, but that is still plenty of time to
make progress in several key areas.
In higher education, I, along with my Democratic
colleagues, will continue to focus on ways to make college more
affordable and reduce the crushing burden of student debt that
is weighing on so many families today. I would also like to see
the Department take new steps to protect students who are
pursuing their degrees, and that includes issuing clear
guidelines for students like those who attended Corinthian
College who went to an institution that did engage in
widespread deceptive practices. These students have the right
to seek loan forgiveness and get some much-needed relief
through what's known as defense to repayment.
I've also been especially concerned by cases where
servicers have overcharged men and women in the military on
their student loans while they served on active duty. In August
Senator Warren, Senator Blumenthal and I requested that the
Inspector General examine the Department's review of servicers'
compliance with the Service Members Civil Relief Act, and I am
anticipating that IG report very soon. I will continue to press
the Department to fully address cases of service members who
were over-charged and take corrective steps to make sure it
never happens again. All of our borrowers should receive the
highest level of customer service and protection under the law.
And, of course, the role of Education Secretary has become
especially important as the Department begins implementing the
Every Student Succeeds Act. This new law gives States more
flexibility, but also includes strong Federal guardrails to
make sure every student has access to a high-quality education.
I expect the Department to use its full authority under the
Every Student Succeeds Act to hold our States and schools
accountable, to help reduce reliance on redundant and
unnecessary testing, and to expand access to high-quality pre-
school.
I look forward to hearing more from Dr. King about his
vision for implementing the Every Student Succeeds Act to help
every student gain access to a quality education regardless of
where they live or how they learn or how much money their
parents make. A good education can be a powerful driving force
for success in our country, and it can help more families live
out the American Dream. That's what makes education such a
vital piece of our work to help our economy grow from the
middle out, not the top down. And as Secretary of Education, I
hope Dr. King will be a valuable partner in that work. I look
forward to working with all of our colleagues on moving this
nomination forward.
Thank you, Mr. Chairman.
The Chairman. Thanks, Senator Murray.
Before I present Dr. King to the committee, I would like to
call on Representative Bobby Scott, who Senator Murray and I
both talked about and who played really an indispensable role
in this new law as the Ranking Member of the Education and
Workforce Committee in the House of Representatives, and who
represents Virginia's 3d congressional District.
Representative Scott, we welcome you, and we know you have
a busy schedule. So, after you make your remarks, you are
certainly welcome to stay or to go, whichever fits your
schedule, and then I will introduce the nominee.
STATEMENT OF HON. BOBBY SCOTT, REPRESENTATIVE FROM THE STATE OF
VIRGINIA
Mr. Scott. Thank you, Mr. Chairman and Ranking Member
Murray. I want to join in the comments made about the work that
was done on the Every Student Succeeds Act. The work that was
done was cooperative and collaborative and constructive, and I
think we ended up with an excellent bill. You indicated the
list of people that support it, and it would not have been
possible without that cooperative effort, and I want to thank
you and the Ranking Member for that work.
That couldn't have been done without a cooperative
committee. So I want to thank all of the committee members.
I also thank you for the opportunity to introduce Dr. John
King, an inspirational and tested leader who is before you
today as President Obama's nominee to serve as U.S. Secretary
of Education.
Our Nation continues to make strides in closing achievement
gaps, improving graduation rates, increasing minority
attainment in higher education, but there's much more work that
needs to be done to fulfill our moral and civil rights
obligation to ensure that every student has the opportunity to
fulfill his or her academic and lifelong potential.
There is no one more qualified than Dr. King to lead the
Department as it endeavors to fulfill that obligation,
especially as we implement Every Student Succeeds Act. The
fight for educational equity is a deeply personal and lifelong
fight for Dr. King. His life is an extraordinary testament of
the powerful role that education plays in creating opportunity.
His life's journey, support by New York public school educators
he credits as role models, is a symbol of what we collectively
seek for millions of disadvantaged students across the country.
His belief in both the centrality of educational
opportunity to the American Dream and a vital necessity of
second chances for our young people are founded in his
impressive and improbable journey, overcoming daunting
challenges early in life, going on to earn not one but four Ivy
League degrees, empowering young people as an effective
teacher, school leader, and charter school founder, serving as
educational commissioner for the State of New York, and now
sitting before you today nominated by the President of the
United States of America to serve as the Nation's top education
official, charged with protecting and promoting educational
opportunity for all students.
Acting Secretary King brings a continued commitment to
advancing excellence and equity for every student, elevating
the teaching profession, and improving access to higher
education, college affordability, and completion rates. And
while it's impossible for me to highlight his long list of
experience and accomplishments with the limited time I have,
I'd like to share with you just a few of his accomplishments.
Before becoming Acting Secretary, Dr. King served at the
Department as Principal Senior Advisor. In that role he carried
out duties of Deputy Secretary, overseeing all pre-school
through 12th grade education policies, programs, and strategic
initiatives, as well as the operations of the Department.
Prior to his arrival at the Department, he served as a
Commissioner of Education for the State of New York, where he
served as Chief Executive Officer of the State Education
Department and as President of the University of the State of
New York. At the time of his appointment, Dr. King was one of
the Nation's youngest State education leaders and the first
African American and Puerto Rican to serve as a New York State
education commissioner.
Dr. King also brings to his role extensive experience
leading urban public schools that are closing the achievement
gap and preparing students to enter, succeed in, and graduate
from college. Prior to his appointment as Senior Deputy
Commissioner in the New York State Department of Education, he
served as Managing Director with Uncommon Schools, a non-profit
charter management organization that operates some of the
highest-performing urban public schools in New York, New
Jersey, and Massachusetts.
Dr. King earned a Bachelor of Arts in Government from
Harvard, a Master of Arts in Teaching and Social Studies from
Columbia, a Juris Doctorate from Yale, and a Doctorate in
Educational Administrative Practice from Columbia. For his
leadership on issues in education equity, Dr. King has been
honored with the Anna Scheele Award from the New York Urban
League, the Eugene M. Lang Lifetime Achievement Award from the
I Have A Dream Foundation, from the New York Immigration
Coalition the Builders of the New New York Award, and the Robin
Hood Foundation Heroes Award.
Many of you became familiar with Dr. King during last
year's successful reauthorization of the Elementary and
Secondary Education Act, and no doubt found him and his staff
to be accessible, responsive, and collaborative. Knowing the
character and leadership of Dr. King, I know that accessibility
and collaboration will persist through the remainder of his
term as he and his staff in the Department work closely with
this committee and with the House Committee on Education and
the Workforce, and I could not be more confident that Dr. King
will effectively lead the Department as the Nation's 10th U.S.
Secretary of Education.
Mr. Chairman, it's my pleasure to introduce Dr. King.
The Chairman. Thank you, Representative Scott. Thank you
for being here.
Dr. King has been well introduced by Representative Scott.
We welcome him, his wife and his children.
He is currently the Acting Secretary of Education. Before
joining the Department, he served as Commissioner of Education
in New York, the Managing Director of the Uncommon Charter
Schools in New York, and Co-Founder of Roxbury Preparatory
Charter School in Massachusetts.
Dr. King, we now invite you to give 5 minutes of opening
remarks, and I know that if you would like to introduce your
family, we would like to meet them. Your written statement will
be entered into the record in its entirety, and then following
that we'll have a 5-minute round of questions because we have a
number of Senators here who would like to talk with you.
Dr. King.
STATEMENT OF JOHN B. KING, Jr., Ph.D., ACTING SECRETARY,
DEPARTMENT OF EDUCATION, TACOMA PARK, MD
Mr. King. Thank you so much. Thank you, Chairman Alexander,
Ranking Member Murray, and members of the committee, for
welcoming me here today. I am humbled and honored to appear
before you as President Obama's nominee for Education
Secretary. I'm proud to be here today with my wife Melissa and
my two wonderful daughters Amina and Mireya.
I am grateful to the President for his faith in me. I am
appreciative of the committee's hard work and continued focus
on behalf of our Nation's learners. And I am mindful of how
remarkable it is that I'm here at all.
As some of you may know, I believe education is the
difference between hope and despair, between life and death
even, because it was for me. I grew up in Brooklyn, the son of
two lifelong New York City public school educators. Although I
never had the chance to know them well, my parents' faith in
education continues to inspire me.
When I was 8, my mother died of a heart attack. My father
passed away just 4 years later after suffering through
undiagnosed Alzheimer's disease that made our home a scary and
unpredictable place.
Amidst that trauma and uncertainty, school was my refuge,
and teachers were my saviors, and it is because there are so
many young people out there like me that I feel such urgency
about the work of education.
Thanks to the efforts of this committee, the Obama
administration, and our Nation's educators and parents, there
are many reasons to feel hopeful. Last year we achieved the
highest graduation rate we've ever had as a country. Since 2008
we halved the number of dropout factory high schools. Tens of
thousands of children now have access to high-quality pre-
school, and millions more children have access to higher
education. These are meaningful, positive steps; and yet, so
much work remains.
For all our progress, students of color, low-income
students, English learners and students with disabilities still
lag behind their peers in nearly every important measure of
school achievement. And in far too many schools we still offer
them less, less access to the best teachers and the most
challenging courses, less access to the resources necessary to
thrive. So we have urgent work to do.
But I believe we stand well-positioned for that work, in
part thanks to the Every Student Succeeds Act. The new law
preserves the critical Federal role to ensure guardrails to
protect civil rights, but the locus of decisionmaking is
rightly shifting back to States and districts and away from the
one-size-fits-all mandates of No Child Left Behind.
As a former teacher, principal, and State commissioner, I
know from personal experience that the best ideas come from
classrooms, not from conference rooms. The new law creates a
renewed opportunity to focus on equity and new freedom for
State and local leaders to establish better, more balanced ways
of assessing student learning. Together, I hope we can harness
the bipartisan momentum of its passage to transform career and
technical education and to advance college access,
affordability, and completion. It won't be easy; the most
critical work rarely is. But I sit here today ready for the
challenge and mindful of its tremendous urgency.
If you'll indulge me, I'll close with a story about my
father that captures that sense of urgency.
My father was a teacher in the New York City public
schools, and he loved to play basketball on the weekends. And 1
weekend he broke his wrist playing basketball, and so he had to
have a cast on his wrist. He came in on Monday after the
weekend and was headed to his classroom, and the principal told
him you can't go to class, you can't teach your class with a
cast on. And my father asked why that was, and the principal
said there was some sort of regulation or rule that he couldn't
teach with a cast on. My father said, no, no, it's important, I
want to teach my class, and the principal said, no, absolutely
not, you can't teach with a cast on.
So my father walked over to the counter, and if you've been
in the New York City public schools, older buildings have these
very high counters, usually in the main office, and my father
laid the cast down on the counter and brushed the pieces into
the trash can and put his hand in his suit pocket and said I'm
going to go teach my class now. And when I was a kid, whenever
someone in the family said something was too hard or too
challenging, my father would say, huh, seems like it's going to
rain soon, I can feel it in my wrist. It was his way of
reminding us of that story and of his sense of clarity about
the role of education.
My father knew that schools saved lives, and though he
couldn't have possibly imagined it then, I sit here decades
later as living proof that he was right. Like my parents, like
the President and First Lady, like all of you, I believe that
education is at the heart of the promise of equality of
opportunity for all Americans. If confirmed, it will be my
great privilege and honor to continue working with you to
realize that promise in the months ahead.
Thank you again for your consideration, and I look forward
to your questions.
[The prepared statement of Mr. King follows:]
Prepared Statement of John B. King, Jr., Ph.D.
Thank you, Chairman Alexander, Ranking Member Murray, and members
of the committee for welcoming me here today. I have dedicated my
career to serving the needs of children and their families, so it is
with great humility and a deep sense of honor that I appear before you
as President Obama's nominee to continue that work as education
secretary.
I am proud to be here today with my wife, Melissa, and our two
wonderful daughters, Amina and Mireya.
I am grateful to the President for his faith and confidence in me.
I am appreciative of the longstanding work and continued focus by
every member of this committee on the education of our Nation's
learners--from early childhood through post-secondary success. I'm
especially thankful to Chairman Alexander and Senator Murray for your
personal commitment and leadership on education, and for the recent
effort of the committee to reauthorize the Elementary and Secondary
Education Act. This committee's work on that bill is a reminder to all
of us that bipartisan compromise is not just still possible; it's
capable of delivering meaningful legislation and necessary changes. I
look forward to continuing to work with all of you in that same
bipartisan spirit.
And I am mindful of how remarkable it is that I am here at all. As
some of you may know, I believe education is the difference between
hope and despair--between life and death, even--because it was for me.
I grew up in East Flatbush, Brooklyn; the son of John and Adalinda
King, two lifelong New York City public school educators. My father
grew up poor in Bedford Stuyvesant, yet by the end of his career he had
become one of the highest-ranking African American educators in the
country. My mother came to New York from Puerto Rico as a little girl
and was raised by a single mother who was a garment worker, yet she
found a way to become the first person in her family to graduate from
college.
Although I never had the chance to know them well, my parents'
faith in education continues to inspire me.
When I was 8, my mother had a heart attack and passed away. My
father died just 4 years later--after suffering through undiagnosed
Alzheimer's that made our home a scary and unpredictable place.
Amidst all the trauma and uncertainty, school was my refuge, and
teachers were my saviors.
I am here today because of Mr. Osterweil, my teacher at PS 276 in
Canarsie who required me to read the New York Times every day, and who
made me feel safe, nurtured, and challenged.
And I am here because of Celestine Dessasure--Miss D--who turned
her social studies classroom at Mark Twain Junior High School in Coney
Island into an actor's studio, and whose lessons proved that rigor and
joy are not mutually exclusive.
My New York City public school teachers literally saved my life. If
not for them, I could not have survived that turbulent period, and I
certainly wouldn't be sitting before you today.
The influence they had on me, coupled with the example my parents
provided, led me to become a teacher myself.
But there are still so many young people out there like me,
children whose paths to school have been marked by burdens no young
person should have to bear. We owe it to those children to make school
for them what it was for me.
That's why I feel such urgency about the work of education. That's
what led me to help found a school and then a school network. And it's
what drove me in my tenure as the Deputy Commissioner and then
Commissioner of Education in New York State.
Roxbury Prep, the first school I co-founded, and one that is filled
with young people from backgrounds like mine, became one of the
highest-performing urban middle schools in the commonwealth of
Massachusetts. The Uncommon Schools network that my colleagues and I
created now includes nearly 50 high-performing urban schools, and
impacts the lives of thousands of low-income students every day. And as
a result of my tenure in Albany, I am proud to say that New York is now
a leading State in its work to bring together K-12, post-secondary and
business partners to expand access to high-quality career and technical
education; in its commitment to create socioeconomically diverse
schools; and in its work to improve the preparation and certification
of its teachers, as the State transitions to more rigorous expectations
for students.
I've also learned from each successive challenge about how to
create lasting change. Since leaving Roxbury Prep and Uncommon, I've
thought a lot about the importance of both holding students to high
expectations and fostering a safe, welcoming school climate. Too often,
we have seen a false dichotomy between the belief that schools alone
can overcome outside forces and the belief that schools are powerless
in the face of those forces. In my time in New York, I was reminded
often of how critical it is that policymakers remain in constant
communication with parents and teachers--the adults who are most
responsible for shaping the daily experiences of our children. I have
been working on that here in Washington.
All of these experiences have only reaffirmed my belief that
educational equity and excellence must be national civil rights
priorities.
Thanks to the work of this committee, the Obama administration, and
our Nation's educators and parents, there are many reasons to feel
hopeful.
Last year, we achieved the highest graduation rate we've ever had
as a country--82 percent. This progress was driven in no small part by
significant reductions in the dropout rate among African American,
Latino, and low-income students. Since 2008, we have halved the number
of ``dropout factory'' high schools. A million more African American
and Latino students are in college today than when the President took
office. Tens of thousands of children now have access to high-quality
preschool and millions more students have access to higher education.
These are meaningful, positive steps.
And yet, there is still much work to be done.
For all their progress our children of color and low-income
children still stand too far behind their peers in nearly every
important measure of school achievement. So do our rural students and
students with disabilities, our English Learners, Native American
students, and homeless students.
And in far too many schools, we still offer them less--less access
to the best teachers, less access to the most challenging courses, less
access to art and music, and less access to the resources necessary to
thrive.
We need to support teachers and educators as they raise academic
expectations for all of our students--so that they are prepared to
compete with their peers in other nations.
We need to offer students more affordable college choices, and to
help more of them graduate. The most affluent students are still six
times more likely to complete college than low-income students, and too
many Americans are still struggling to pay back their student loan
debt.
So we have urgent work to do.
We are not yet what we ought to be.
But I believe we stand positioned to move closer to what we ought
to be, in part thanks to the Every Student Succeeds Act (ESSA). With
ESSA, Congress has reinforced the Federal commitment to holding our
Nation's schools accountable for the progress of all students. In this
new era, the locus of decisionmaking around the most appropriate
supports, interventions, and rewards in our schools is rightly shifting
back to States and districts--and away from the one-size-fits-all
mandates of No Child Left Behind. As a former teacher, principal, and
State commissioner, I know from personal experience that the best ideas
come from classrooms, not conference rooms.
The new law provides a renewed opportunity to focus on preparing
every young person for success in college and future careers, and that
demographics do not determine destiny--starting with our youngest
learners.
It preserves the critical Federal role to ensure guardrails to
protect civil rights. But it also gives educators and State and local
leaders the freedom to establish better, more balanced ways of
assessing student learning, including looking beyond just test scores.
It maintains the principle that, when groups of students or entire
schools are falling behind, action will be taken to provide the
supports necessary to foster progress. And it creates the opportunity
to reclaim the goal of a well-rounded education for all students: an
education that not only includes strong numeracy and literacy but
access to science, social studies, the arts, physical education and
health, and the opportunity to learn a second or third language.
The start of a new era also brings with it an opening for a much-
needed reset in the national dialog. Over the last few years, education
policy discussions have too often been characterized by more heat than
light--especially where educators are concerned. Despite the best of
intentions, teachers and principals, at times, have felt attacked and
unfairly blamed. All of us--at the local, State, and Federal level--
have to take responsibility for the climate that exists. And all of us
must do whatever we can to change it.
We know--and I know personally, because I lived it--the importance
of great teachers. That's why one of my highest priorities as education
secretary would be to lift up the teaching profession, and find more
ways to celebrate, support, and sustain our Nation's educators.
In so many ways, this is a unique moment in our Nation's
educational journey. The passage of ESSA should not be the end of a
road; it should be the beginning of many.
Let's harness the bipartisan momentum of last year to make this
year one of continued progress. Just as No Child Left Behind was
overdue for a rewrite, so too is the Perkins Act. Let's make 2016 the
year we transform career and technical education for the 21st century
by driving innovation and quality.
Just as we were up for the challenge in pre-K through high school,
let's work together to advance improvements to the Higher Education
Act. And let's ensure that every student has the opportunity to obtain
the post-secondary education needed to gain the knowledge and skills
that will shape success in today's economy--whether in the form of a 2-
year or 4-year college degree, or an industry credential and direct
pathway to a well-paying job.
Together, we can fortify the Pell program as an engine of
opportunity. And we can support the innovative ideas of schools around
the country to serve more students at a lower cost, and ensure that
students don't just start college but complete it with an affordable,
high-quality degree. That includes working with you to build on our
efforts to support students and families who are managing their student
loan debt.
None of this will be easy--the most critical work rarely is. But I
appear before you ready for the challenge, and mindful of the
tremendous urgency we must bring to the tasks at hand.
If you'll indulge me, I'll close with a story about my father that
captures that sense of urgency.
My father loved basketball, and one weekend, while playing, he
broke his wrist. When he went to work on Monday, with his wrist in a
cast, the principal stopped him and said, ``Mr. King, you can't teach
today.'' The principal said there was a regulation back then about not
teaching with a cast, and the principal refused to budge.
So what did my father do? He walked over to the counter and smashed
the cast into pieces. Then he brushed those pieces into a trash can,
put his hand in his suit pocket, and went to teach his class.
My father knew that schools save lives. And though he never could
have imagined it then, I sit here decades later as living proof that he
was right. Like my parents; like the President and First Lady; like all
of you, I believe that education is at the heart of our promise of
equality of opportunity for all Americans.
If confirmed, it will be my great privilege and honor to continue
working with you to realize that promise in the months ahead.
Thank you again for your consideration. I look forward to your
questions.
The Chairman. Thank you, Dr. King, and thank you for the
story about your father.
We're going to begin a round of questions now, which we'll
limit to 5 minutes back and forth for each Senator.
Let me start with some nuts and bolts. You've been at the
Department for a while. You know how it works. We're coming to
a transition point in Federal education policy in a variety of
ways. When we have a new law, that means that every State will
need to submit a new plan to you in order to receive the title
I and title II money. That's about $17.5 billion.
The law requires that organizations work together--States,
teachers, ET cetera--and that you work with them. The
conditional waivers that exist now are repealed on August 1 of
this year. I would assume that we would hope that new State
plans would be in place in time for the 2017-2018 school year,
so I'm thinking that maybe plans would need to be in by mid-
summer of next year. The plans have to go through a peer
review.
Over the weekend I met with the Governors, and the
Governors and teachers, all those people that I mentioned in my
testimony, are forming coalitions State by State to work
together on their plans. So you have a lot of people affected
here. We've got 100,000 public schools, 50 States, 3.5 million
teachers, 50 million children.
And the other thing to say about this that's good, I think,
is that this is a good law. It has broad support. It lasts 4
years, but my guess is it may set Federal education policy for
a longer period of time than that.
So we've got a new multi-year law. We're going to have new
plans that won't have to be amended unless there is dramatic
change. So we could be ushering in not only a new direction but
a new period of stability in Federal education elementary and
secondary school policy, which I think teachers and principals
and school boards would welcome. And because there are so many
people working together to do this, it may help move--it won't
entirely do it--move politics to the back burner and education
to the front burner.
What can you tell all of these States, teachers, chief
State school officers about the schedule? When will your
regulations be final? When do the plans need to be submitted?
What's the schedule you'll use to implement the new law?
Mr. King. Thanks for the question, Senator. We believe it's
very important that the process we follow in implementing the
Every Student Succeeds Act builds on the notion that
stakeholder feedback and input is critical. So we have begun
that process of gathering stakeholder feedback and input. We've
held two public hearings. We published a notice in the Federal
Register and received hundreds of comments from over 800
individuals and organizations. We've held countless meetings
with stakeholders, civil rights organizations, educators,
community-based organizations as we gather input about
implementation of the law.
We are looking to understand from stakeholders, from
schools and districts what kinds of guidance and regulations
they think would be necessary for strong implementation. We
have begun the process of negotiated rulemaking with respect to
assessments and supplements to plans, two areas where
stakeholders asked us to provide more clarity, and we will
continue to work to review that comment and to----
The Chairman. If you were still in New York, what would be
your goal to have a State plan in? What would you be aiming at?
Mr. King. Yes, we certainly have to have the plans in
place, as you said, for the 2017-2018 school year. I think we
want to make sure we have a deliberate process to provide
guidance and regulations, and I think there's a real eagerness
on the part of State chiefs to get started. As you indicated,
many State chiefs are already beginning to consult with
stakeholders and beginning to frame their plans.
The Chairman. We had a hearing earlier this week with a
number of the chief State school officers, Governors, ET
cetera, and they expressed both points of view, really. They
wanted to get on with it, but they also want to take the time
to get it right, which is a nice balance.
The only other thing I would say is--and I'll have other
questions as we have time for a second round--we'll be having a
half-dozen hearings this year on the implementation of the new
law because, as I said, the law is not worth the paper it's
printed on unless we implement it the way Congress wrote it,
and oversight is as important a part of our job as passing the
law is.
So my request of you is that if you're confirmed, will you
be available to me and to Senator Murray and other members of
the committee and to our staff to promptly answer our questions
as you go through this important period of time?
Mr. King. Absolutely. I look forward to collaborating on
implementation.
The Chairman. I personally will promise not to bother you
with a lot of politically inspired, long letters, but what I
would like to do is if I've got a question, I'd like to get an
answer, and if we have a disagreement, I'd like to find a way
to resolve it promptly. I know that there are tens of thousands
of people around the country who are affected by these plans,
and they would have the same feeling.
Senator Murray.
Senator Murray. Thank you.
Dr. King, I've been really impressed with this
Administration's work over the years to protect civil rights,
including promoting educational opportunities for students of
color, women and girls, students with disabilities, LGBT
students, and I look forward to continuing to work with you on
those issues. But I wanted to raise one specific issue with you
today, campus sexual assault and violence.
It's a growing national crisis, and depending on the
survey, we know that at least 1 in 5 women are being sexually
assaulted while on our college campuses. That's stunning. One
in five of our daughters, granddaughters, sisters, loved ones
are being sexually assaulted while in college. That is, by the
way, the lowest of the estimates out there, which is really
appalling and unacceptable.
I hear over and over again from students, from
administrators, from survivor groups, schools, and everybody
about the important work the Office of Civil Rights does to
enforce title IX. In fact, before this hearing today, I
received many letters from professors and students and sexual
assault survivor groups supporting the work of the Office for
Civil Rights, and I ask unanimous consent to include those
letters in the record, Mr. Chairman.
The Chairman. They will be.
[The information referred to can be found in additional
material.]
Senator Murray. The Office for Civil Rights has taken some
critical actions to make sure that our college campuses do have
the tools and resources necessary to comply with title IX and
keep our campuses safe, and I applaud their work. But I wanted
to ask you, can you talk with us about the importance of having
safe campuses and your Department's commitment to addressing
that?
Mr. King. Absolutely. It is a top priority for the
President, for the Vice President, for the Department to ensure
that we do everything possible to protect our students, male
and female students, from sexual violence and sexual assault.
In the period before the Administration and in the early
years of the Administration, we saw both the challenge of
sexual assault on campuses and genuine lack of clarity on the
part of higher ed institutions about what they should be doing
to protect students and what their responsibilities were under
title IX.
We issued guidance early in the Administration intended to
try to address that lack of clarity. That guidance has been
very helpful to higher ed institutions in creating safer
environments for their students. We've worked very productively
with higher ed institutions to adjust their policies to make
sure that students are safe while protecting due process rights
as well.
We certainly want to continue that work. The White House
Task Force on Sexual Assault has gathered extensive feedback
and input, and we continue to try to steer institutions toward
best practices that will help them keep their campuses safe.
But all of us, I think, as parents and as citizens have to
worry about the safety of our students. We want them to be able
to go off to college or to be in a K-12 school and feel safe
and know that the institution will do everything possible to
protect their safety.
Senator Murray. OK. This is something I will continue to
followup, so I appreciate that.
I also wanted to ask you about the teacher shortage. I hear
this all over my State. It's exacerbated in schools that serve
a high percentage of low-income students, rural areas, in hard-
to-teach subjects like STEM.
Why do you think we are facing this teacher shortage?
Mr. King. We've got two challenges. One is shortages in
specific States in specific areas or driven by specific
conditions in States. There are some States where teacher
compensation is quite low relative to other fields. I think
that makes it a challenge to recruit folks. There are some
States that have experienced rapid growth in their population
of English language learners and are struggling to recruit the
necessary teachers.
There are certainly districts and States around the country
that are struggling with recruiting teachers to rural
communities, which can be a challenge as rural communities lose
population.
But then I think there is a broader challenge, which I
think is a tone in the conversation around educators over the
last decade that has at times left teachers and principals
feeling attacked or blamed for the challenges that we have as a
society. I think the new law gives us an opportunity for a
reset on that conversation to broaden how we think about
educational excellence to make sure that teachers and
principals are very much a part of how districts and States use
the new flexibility under Every Student Succeeds Act.
And I think we have an opportunity to build on the
bipartisan work on the Every Student Succeeds Act with some of
the President's budget proposals. The President proposed a $1
billion investment in making teaching the best job in the
world, investing in the time for collaboration that teachers so
desperately want, creating incentives for teachers to go into
the highest-need communities and to teach in high-need subjects
like math and science and so forth; ambassador teacher
preparation and school leader preparation, because we know
strong preparation helps people arrive better prepared and
makes it more likely that they will be able to stay.
I think there's real opportunity to shift the conversation,
but there's an urgent need to do so.
Senator Murray. I agree, and I look forward to your
Department really working to elevate that conversation
nationally, so thank you very much.
The Chairman. Thank you, Senator Murray.
Senator Enzi.
Statement of Senator Enzi
Senator Enzi. Thank you, Mr. Chairman. I want to thank you
for urging the President and our leader to do some rapid
confirmation so we'd have an actual Secretary of Education in
place. I know from your background that you realize the
importance of getting that done because you've been through
that lengthy waiting time yourself.
I want to thank Dr. King for the opportunity to visit a
little bit yesterday. I will have some numbered questions for
you. I don't ask those in hearings because I found that it puts
people to sleep. So I'll focus my questions today on cyber
security at the Department of Education and the important
protections that we need for the student information.
In 2015 there was an audit, and the Inspector General
conducted a cyber-security review in which he was able to
penetrate one of the Department's networks and move throughout
the system undetected. The Inspector General concluded,
``We determined that the Department's overall
incident response and reporting program was not
generally effective because we identified key
weaknesses in its detection and prevention system
penetration.''
So the Department's inability to detect an outside actor as it
moved throughout the system raises concerns that the Department
has already been breached and is unaware of the compromise to
its systems. These systems include 139 million Social Security
numbers in the Federal Student Aid Program, which is about $1.2
trillion in Federal assets.
In the prior year's report the IG reported,
``In some instances, although the Department said it has
completed a recommendation, we continue to find that the
corrective actions were not implemented, and we had to issue
modified repeat recommendations because of the exact similar
conditions continuing to exist.''
Protecting the privacy and security of the student's
personal and financial information is one of the greatest
responsibilities, I think, of the Department, and I do find the
history of the Department's capability to execute that pretty
alarming.
To what level are you concerned about this? And, if
confirmed, what plans do you have to strengthen the cyber
security and to improve the incidence response and the
reporting?
Mr. King. Cyber security is a top priority for me and the
senior leadership team at the Department. Since I joined the
Department in January 2015, I've been focused on trying to
strengthen our cyber security posture, even to the level of
having weekly meetings when I was in the role of Deputy, weekly
meetings with our senior leadership team across the Department
focused on making rapid progress on cyber security.
I can tell you some encouraging progress has been made over
the last year. Last spring and summer, when there was a Federal
cyber security sprint to evaluate the cyber security posture
across Federal agencies, it was found that the Education
Department was only at 11 percent in terms of the percentage of
our privileged users using two-factor Level 4 authentication,
that level of security that is recommended for protecting our
data information when users come onto the system.
Since then we worked very diligently, amended nearly 60
contracts, and today I can tell you 95 percent of privileged
users are using Level 4 two-factor authentication, and we are
closing in on 100 percent by the end of next month.
We're making progress in closing items from our FSMA audit
that were identified. We are working with the Inspector General
and want to address the concerns that the Inspector General has
identified.
We are also working very closely with the Department of
Homeland Security to leverage their best expertise from across
the Federal Government.
This is a top priority. It is fair to say that there is
more work to do, and we've got to move quickly to strengthen
our cyber security posture. But the threats that are out there
are numerous and will continue to grow and evolve, and we've
got to make sure that we have the strongest possible posture.
Senator Enzi. I appreciate the steps you've taken, and
we'll be looking forward to additional ones. I know that in
that report there were 16 findings of security weaknesses, and
six were repeat findings from the previous year, and now there
are 26 recommendations to solve those weaknesses, and 10 of
them are repeat recommendations.
So what steps are being taken to address the
inefficiencies? And, if confirmed, will you commit to working
with the Inspector General to implement all 26 recommendations?
Mr. King. I'm very committed to implementing the
recommendations. I think over time there have been challenges
both in terms of resources and talent acquisition. I think we
see this challenge across the Federal Government, trying to
identify strong cyber security professionals. We recently added
a new chief security officer to our IT team. I think that will
be very helpful. He's got military experience, military
intelligence. I think that will add a lot to our team.
FTARA I think will be helpful. One of the historical
challenges in the Department has been separate IT structures
between the Department and Federal student aid, and FTARA will
bring those together.
I think we're well positioned to make progress on all 26.
We're committed to closing out those items.
Senator Enzi. Thank you.
My time has expired. I'll submit some numbered questions.
The Chairman. Thank you, Senator Enzi.
Senator Whitehouse.
Statement of Senator Whitehouse
Senator Whitehouse. Dr. King, welcome. I am glad you're
here, and I intend to support your nomination. But I want to,
first, behind you, say how well your daughters are doing
through the tedium of this hearing.
Mr. King. Thank you.
Senator Whitehouse. I'll channel a bit what I hear from my
teachers in Rhode Island. I worked very, very hard on the
middle school piece of the ESSA, and on the innovation schools
piece, with literally years of work with educators to try to
get those pieces as good as they could be. And in that process
I spent a lot of time listening and learning, and some of the
things that I learned are that the classroom teachers don't
have a lot of faith in the education oversight machinery. They
very often see it as propagating a jargon cycle where people
come and offer the latest jargon to them for their classrooms,
and then after a couple of years, when the jargon gets stale,
they go off to other conferences and learn new jargon and come
back. And after you've seen rinse and repeat a few times, it
begins to look pretty repetitive.
They have seen sort of Celebrity Chef type folks come
through who seem to have their eyes more on the approval of
faraway foundations than on the classrooms in which they serve.
They see more forms, they see more tests, they see less
resources, they see less freedom. I think, to use your father's
story, they see more rules about casts, and I don't know that
rules about casts served your father or his classroom very
well.
I think what they want more than anything else is the
benefit of the doubt, where teachers and the community support
local innovation, and to be able to support and implement that
with the least obstruction and delay.
So I would hope that as you discharge your duties, you will
do so with a keen eye for the hazard of unintended
consequences, which the testing regime is a prime example of; a
prudent judgment about the tools of particularly Federal
oversight; with an abiding confidence in the value of local
innovation and initiative; and with an appreciation that
sometimes the course of wisdom is to get out of the way.
I think if you can do that, be there when we need you and
be out of the way when the schools are trying as hard as they
can to get it right, I think that will make a very big
difference in our schools.
Teachers are fed up, and they're not just fed up with the
old buildings and the budgets that they have to deal with. I
think a lot of them are also fed up with an oversight mechanism
that they don't feel is serving their classroom interests. So I
urge you to take that to heart, and you'll have our full
support.
Mr. King. Thank you very much. I appreciate that. I think
every ounce of feedback gives us some great opportunities to
foster that local innovation and allow districts and States to
rethink the definition of educational excellence beyond just
English and math test score performance, to think about the
role of science and social studies and art and music, to
rethink how they approach closing achievement gaps based on
innovation, and I think we've got an opportunity as well with
education innovation and research programs within the Every
Student Succeeds Act to continue to build an evidence base
around innovations that work with students, locally driven, and
then to scale those innovations through local decisionmaking.
I'm very optimistic about the potential. Thank you.
Senator Whitehouse. We'll be on the same page, then. But as
you know, I think, from dealing with folks, it's a pretty
strong feeling out there. They don't have the tools to do the
job. People are in their hair, and they are so urgent about the
need to do their job better in the classroom. They need
resources, not restrictions.
Mr. King. I think that's right. We have the Teach to Lead
initiative at the Department, bringing together teacher leaders
from across the country, and that is exactly the sentiment we
hear, and people are excited when they have the opportunity to
work with colleagues to do innovative things in their
classrooms, in their schools, in their districts to try and
improve outcomes for students.
The Chairman. Thank you, Senator Whitehouse.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Thank you, Chairman Alexander, and thank
you for your conversation yesterday on the phone, Dr. King. I
appreciate it. It's good to have your family here. Your
daughters are beautiful.
Mr. King. Thank you.
Senator Isakson. So is your wife, by the way.
Mr. King. Thank you.
Senator Isakson. You and I suffered a similar criticism in
our careers. When you were in New York and Commissioner of
Education, you caught a lot of hell for having too much
testing, if I read correctly some of the articles. I'm one of
the last remaining people who voted for No Child Left Behind in
the Congress of the United States, and we caught plenty of hell
for requiring too much testing.
The current bill that Chairman Alexander and other members
of the committee brought about in terms of testing allows
parents to opt out of testing. That opt out provision was in
there precisely to address the concern that many people had
about too much testing. The 95 percent participation rate is
still required in Every Student Succeeds Act, as it was under
No Child Left Behind. The difference is the State is the
authority that enforces that requirement, not the Federal
Government. You have the ability to say you'll withhold title I
funding, but only the State can see to it that it's withheld,
and they can have another mechanism to ensure participation.
Given that we have the opt out provision, which I authored
because of my experience with too much testing, and given that
we still have the 95 percent participation rate, how are you as
the Secretary of Education going to work with the States to
ensure we have a participation rate that gives us the good
metrics we need to know without forcing it down the throats of
parents and educators?
Mr. King. I appreciate the question. I think it's very
important that we had in No Child Left Behind and have in Every
Student Succeeds the expectation for all students to
participate in the assessments. At the same time, I think we
have an opportunity with the Every Student Succeeds Act to
shift the tone, that we want to work with States on this. We've
asked States that haven't met their participation requirements
to develop State strategies to try to respond to that.
I think one thing I learned in New York, and I wish we'd
done sooner, was we ran a grant program to ask school leaders,
teachers, in some cases parents to look together at the
assessments that are given in any given district and ask do we
need all of these, are these the right ones, do they make
sense, could we reduce the number, are some of these
assessments low level and should we replace them with things
like essays and research projects and science experiments and
lab reports. That grant program was very successful. That is
similar to the testing action plan that the President announced
in the fall. We've given guidance to States and districts on
how they can use existing funds for those kinds of audits.
I do think we have to acknowledge that there are places
around the country over the last decade where there has
genuinely been too much time spent on testing and too little
time, as a result, or a loss of time on instruction, and I
think we have an opportunity to shift that. The President has
in his budget a proposal to increase funding for assessment
grants so that States have additional resources that they can
put toward those kinds of audits where they review assessments
and get rid of ones that are unnecessary.
So I'm optimistic that the new law, the thoughtfulness of
State leaders I'm seeing across the country in looking at how
they reduce assessments to the minimum necessary to support
good instruction, I'm optimistic that those things will help us
get to a better place.
Senator Isakson. I appreciate your answer. You have a 10-
month period of tenure, I guess, for sure, through this
Administration, but that 10 months will include the beginning
of the upcoming school year, which starts around the country as
early as the first week in August in Georgia. So you're going
to be having a lot of situations to have communication with the
States regarding requirements and regarding the flexibility of
the Every Student Succeeds Act.
I hope you will take that opportunity to realize that the
States went to the Federal Government for relief by asking for
waivers from No Child Left Behind because we didn't do the
reauthorizing we should have. Now that we have done a
reauthorization, now that the States are more engaged in the
implementation of elementary and secondary education, I hope
you'll treat this as a partnership between the Federal
Government and the States, not a dictatorship from the Federal
Government to the States.
And thank you for your service.
The Chairman. Thank you, Senator Isakson.
Senator Warren.
Statement of Senator Warren
Senator Warren. Thank you, Mr. Chairman.
Millions of Americans are being crushed by student loan
debt. More than 90 percent of that debt is either owned or
guaranteed by the Department of Education through its Federal
Student Aid Office. In other words, the Department of Education
runs what amounts to a trillion-dollar bank, with exactly one
product, student loans, and exactly one obligation, fairly
serving millions of student loan customers.
It is clear to me that the Department's bank is in need of
some serious improvement. Would you agree with that, Dr. King?
Mr. King. As we discussed, I look forward to working with
you and the rest of the committee to try to strengthen the
student loan system. I worry that too many students don't
understand their options with how to manage the debt that they
have. I worry that there are institutions that are bad actors,
where there's a need for more enforcement. We just added a new
enforcement unit to focus on that. So I'm very committed to
continuing to work with you and with the committee to
strengthen our efforts in this.
Senator Warren. I appreciate that and I'm glad to hear it
because I want to put in the record just a few of the problems
about how the Department's student loan bank has been falling
down on the job.
First, the Department of Justice found that the student
loan servicer Navigant, formerly known as Sallie Mae, had been
cheating the women and men of our military on their student
loans and fined the company $60 million. But the Department of
Education's bank took no action. Instead, the Department's bank
let them off the hook after conducting its own separate and
deeply misleading review. The bank then rewarded the company
that cheated our members of the military by renewing another
$100 million contract.
Second, the CFPB identified widespread failures in student
loan servicing. Servicers routinely mistreat borrowers and
break the rules, but the Department of Education's bank
consistently renews their contracts. And in 2014, the bank even
gave these companies a raise.
Third, over the last decade the Department of Education's
Inspector General has criticized the bank's failure to police
debt collectors who casually break consumer protection laws.
The Department of Education's bank is still paying those same
debt collectors that break the law.
Fourth, the student loan bank won't share data about the
student loan program with anyone, not even the rest of the
Department of Education. This means that nobody, nobody has any
insight into how this trillion-dollar bank is being run.
And fifth, the last one I'll mention here, despite these
massive and ongoing problems, the Department's bank thinks that
it is doing such a great job that in 2014 they gave dozens of
their own senior officers--those are your Department's
employees--bonuses, and some of those bonuses were as high as
$75,000.
So there are five examples, and I understand, Dr. King,
these problems existed long before you ever set foot in the
Department of Education. But if you are confirmed as the next
Secretary of Education, you will be responsible for how the
Department's trillion-dollar bank runs. Will you commit
yourself to cleaning up this bank's operation and making sure
that it works for the students that it is supposed to serve?
Mr. King. I am deeply committed to ensuring that Federal
student aid serves students well, serves borrowers well, and
protects the taxpayer interest.
Let me tell you four things that I think are promising. One
is the Department has worked on the gainful employment
regulations, which I think will help to ensure at the outset
that institutions provide good information to students and
ensure that we act when there are bad actors.
Two, on the servicing issues around service members, we
have now in place a system where there is automatic
notification between the Department of Defense and FSA when
service members go into active duty, and that automatic
notification then protects service members. We also have tried
to make whole any service members who did not have the proper
interest rate prior to that system going into place.
Third, we have created this new enforcement unit that I
mentioned. Robert Kay, who has been an enforcement litigator at
the FTC, has joined us to lead that unit, and we are committed
to taking action with bad actor institutions.
And fourth, we will shortly re-compete the servicing
contract, and as we do that we will integrate into that
servicing contract many of the suggestions that you have made,
that other advocates have made regarding how we're going to
protect students' and borrower interests, and feedback we've
gotten from higher ed institutions as well that worry about
their students and their borrowers and want to make sure they
are well served.
So I think there are promising indicators, but you are
right, there's a lot of work to do to ensure that we protect
our students and borrowers, and we intend to do that.
Senator Warren. I very much appreciate it. I appreciate the
steps that you are already taking. I just want to say it is the
Department of Education's job to stand up for students, not for
the student loan companies that are making money off these
loans or these for-profit colleges that want to suck down more
taxpayer dollars.
The Department's student loan bank is failing massively at
this critical task, Dr. King, and the American people need to
know that if you are confirmed you will make it a priority to
fix these problems. Thank you.
Mr. King. Thank you.
The Chairman. Thank you, Senator Warren.
Senator Scott.
Statement of Senator Scott
Senator Scott. Thank you, Mr. Chairman.
Dr. King, good to see you again. Thank you for coming by
the office yesterday and spending some quality time on the
issue of education. Certainly, your friend and my friend, Mo
Cowan's opinion of you is very high, and thankfully so. It
certainly has had some influence and impact, though he needs to
come back from Massachusetts to DC more often.
[Laughter.]
A question for you on charter schools. I know that you were
intimately involved in Roxbury Prep and had a lot of success
there. When I saw a similar program being replicated through
the Uncommon Charter Schools, it was very successful. What can
we expect from you in terms of charter schools, and how will
your approach be different from the approach of Secretary
Duncan?
Mr. King. I appreciate the question. We think charters can
play a key role in fostering innovation in education and
providing better outcomes for high-need students. Certainly
that's what we tried to do at Roxbury Prep and at Uncommon.
We have two programs that are supporting charters, our
Charter School Program, which is designed to spur the creation
of new, high-quality charters, and also strengthen charter
school authorizing; and we have a program that's focused on
scaling high-performing charter management organizations. The
President has proposed increased funding for charter efforts.
We are very focused on how we grow the number of high-
performing schools that students can choose, whether it's
district or charter schools. As we do that, one of the things
we have to be vigilant about is authorizer quality. As we
talked briefly about, I do worry that there are places where
authorizers aren't doing a good enough job. We have to make
sure that authorizers act when schools aren't delivering on the
promises of their charter. I think that will help lift the
sector.
But as States move forward with the Every Student Succeeds
Act and think about what interventions they will put in place
in high-need schools, growing the number of innovative high-
need schools, whether that's innovative district schools or
innovative charter schools, should be a part of that
discussion.
Senator Scott. One area where we may have to agree to
disagree is on the D.C. Opportunity Scholarship. I know that
there are some parents and students in the audience who have a
very passionate position, as I do, on the importance of the
D.C. Opportunity Scholarship, especially when you look at your
commitment to equity and excellence and the fact that we have a
classic example here in Washington, DC of a process and a
program that has produced numbers and success in a way that's
inconsistent with other schools.
I think the graduation rate of those students attending a
D.C. Opportunity Scholarship program is around 90 percent.
Other schools in the DC area is around 62 percent, with some
going as low as 38 percent. The cost per pupil for the D.C.
Opportunity Scholarship program is somewhere around $9,000 to
$12,000. For the other schools it's over $18,000. You get a 50
percent better graduation rate. Eighty-eight percent of those
students go on to a 2-year or 4-year college experience.
It seems to me that the Administration and you as Secretary
should take a second look at that program and look for ways to
integrate it and to use the carryover money, $35 million, to
fund more scholarships. Frankly, this is not just my
perspective. This is a bipartisan perspective. When you look at
the support of Senators like Republican Senator Ron Johnson, as
well as Senators Feinstein and Cory Booker, all have the same
opinion of D.C. Opportunity Scholarship.
What can we do to move the Administration, and perhaps you
as the new Secretary, in the direction of using that $35
million in carryover funds to fund more scholarships? When you
take into consideration the fact that in the DC area there are
basically three approaches to education, the DC public schools
get about $20 million a year. The Opportunity Scholarship
program is around $20 million a year. So the funds that are
necessary to continue the scholarships apparently are already
there.
What we have an opportunity to do is to take the $35
million to use for more scholarships so that we see more kids--
97 percent of these kids are either African American or
Latino--we see more kids succeeding at high levels, especially
when you think about the fact that 60 percent of these kids are
receiving TANF or SNAP benefits, and yet they are out-
performing their peers throughout the DC area and perhaps
throughout the country.
Mr. King. As we talked about, I very much respect your
position. I think our view is that the number of slots in the
DC voucher program should be based on annual appropriations. To
the extent that there are open slots within the annual
appropriation, those would be filled. We think the carryover
funds should be maintained to ensure that the currently
enrolled students, if new appropriations are not made, have the
opportunity to complete their education in the schools where
they are now enrolled.
Again, I respect that we have a difference of opinion on
that. I think we share an urgency around equity and excellence.
I do not personally believe that vouchers are a scalable
solution to the equity and excellence challenge and prefer the
route of public school choice but respect, certainly respect
your position on this.
Senator Scott. I'll just close with this, Mr. Chairman. I
certainly think that your success on charter schools is
undeniable, and thank goodness that you've taken that try. It
has been a successful try. I think when you look at the D.C.
Opportunity Scholarship and the fact that over a 10-year period
of time we've seen 6,000 students go across, and 95 or 93
percent of those kids graduate, that it would be a shame for us
not to take advantage of a system or a program that is working
so well, that we have so many kids that would have been denied
access to higher education now being involved in higher
education, succeeding in higher education. That changes their
entire family system. So for us not to take a second look at
this would be a shame.
Thank you.
The Chairman. Thank you, Senator Scott.
Senator Murphy.
Statement of Senator Murphy
Senator Murphy. Thank you very much, Mr. Chairman.
Good afternoon. Congratulations. I have to pass on to you a
compliment paid to you by a friend shortly after you were named
to the interim position. This individual said to me it's
wonderful that a person like John King could become the
Secretary of Education. I asked him what he meant by that, and
he said, you know, it's not just his background, to have
somebody there who has done everything within the educational
system, someone who wasn't a creature of Washington but a
creature of local school districts, but just someone of the
temperament and the disposition that John has. You have a lot
of fans out there, not because of the work you've done but just
because of the person you are, and that has come through in
every post you've had, a real tribute to you.
Dr. King, I wanted to talk to you a little bit about one of
the particular provisions in ESSA that I care most about. I and
others on this committee--Senator Warren, Senator Murray,
amongst others--fought very hard for requirements in the new
elementary and secondary education law that would ensure that
States must step in with evidence-based interventions for the
lowest performing schools, the bottom 5 percent of schools,
dropout factories that failed to graduate a third of their
students, and schools with consistently under-performing
subgroups.
These requirements, they're essential to maintain the core
purpose of ESEA, originally, as a civil rights law. It's not
really any good to have a Federal education law if it's not
also a civil rights law. But it's really going to be up to the
Department to ensure that States have meaningful definitions of
things like ``consistently under-performing'' and that States
and districts are monitoring schools with consistently under-
performing subgroups.
So my question is a general one. The law, it does
appropriately turn over a lot of flexibility to States in the
design of these accountability systems, but it also includes
some really important Federal guiderails. So as Secretary, how
are you going to ensure that States implement accountability
systems that protect these subgroups of vulnerable students?
Mr. King. Thanks. I appreciate the question. The civil
rights legacy of the Elementary and Secondary Education Act is
crucial to preserve and advance, and I think States have an
opportunity to use their flexibility around interventions to
increase equity. In order to do that, I think you're exactly
right, we will need to ensure that there are good guardrails,
that we're gathering comment and feedback from schools and
civil rights organizations and community leaders and educators
to understand how we can, through regulations and guidance,
support the implementation of interventions that actually move
us closer to closing the achievement gap.
I think it's a good thing that the Every Student Succeeds
Act moves us away from the one-size-fits-all solutions of No
Child Left Behind. If you've got a school that's struggling
with a population of English learners, you should be able to
bring in evidence-based professional development and teaching
practices and help teachers support those English learners. You
shouldn't have to go to a one-size-fits-all solution that has
nothing to do with English language learners because that's in
a Federal law.
I think there's an opportunity here for States to have
smarter interventions and districts to have smarter
interventions. But it will also be important for the Department
to be vigilant after that first set of interventions is put in
place. If they aren't working, if they aren't closing
achievement gaps, if they aren't raising graduation rates,
there's going to need to be a demonstrated effort on the part
of States to intensify those interventions, to act on the
evidence, and to change strategies.
So we are going to be very careful in our work to regulate
on this, to provide guidance on this, and to provide technical
assistance, and we're going to be guided in that by the
feedback that we get from stakeholders.
Senator Murphy. I appreciate your focus on this. I want to
ask one additional question, following up on Senator Warren's
questions.
Another one of these for-profit schools, Marinello School
of Beauty, went out of business earlier this month, leaving
about 460 students in my State suddenly with unfinished degrees
and massive student debt. These are just piling up, the
headlines, by the month.
You've got the ability in the Department of Education to
cutoff aid for schools only when they hit a fairly ridiculous
trip wire, which is 30 percent of their students effectively
achieving the status of financial ruin, that they have gotten
so badly behind on their debt that they are defaulting.
A lot of the conversation around higher ed reauthorization
here is whether there's a better way to give you power or give
you the ability to intercede earlier than that moment when one-
third of all students graduating from an institution have
gotten degrees that are so worthless and meaningless that they
can't pay back their student loans, this concept of shared
responsibility.
What do you think about the need to give the Department of
Education some new ability to intervene a little bit earlier?
Mr. King. We would love to work with you on that. I do
think the gainful employment regulations will help with respect
to some of the institutions. Our new enforcement unit will
help. But strengthening the accountability within the Higher
Education Act would be very valuable, including strengthening
the accountability for accreditors. If you look at what
happened with Corinthian, Corinthian was accredited throughout.
So ensuring that accreditors are paying close attention to
whether or not students are getting what they pay for I think
is also a critical step we can take in the reauthorization.
Senator Murphy. As the Chairman and Ranking Member will
remember, we had the accreditor of Corinthian before us, who
defended the accreditor's total and complete inaction in the
wake of Federal Government intervention, which to many of us
was a little hard to swallow.
Thank you very much, Mr. Chairman. Thank you.
The Chairman. Thank you, Senator Murphy.
Senator Collins.
Statement of Senator Collins
Senator Collins. Thank you, Mr. Chairman.
Welcome, Dr. King, and congratulations again on your
nomination.
ESSA includes some innovation that is an assessment pilot
program which I co-authored with Senator Sanders, which ought
to tell you something about the breadth of support that the
program has.
[Laughter.]
Senator Collins. This is a pilot program that would allow
seven States to develop alternative models for assessment. One
such model could be proficiency based, which Northern New
England is particularly interested in. And the law allows seven
States, as I mentioned, to participate in the demonstration
project.
What are your plans for implementing this pilot program?
Mr. King. Thank you for the question, and thank you for
your leadership on this issue. I think we are still in the
early stages of gathering feedback and comment from some
stakeholders in areas where regulations or guidance will be
helpful. As we work on the innovative assessment pilot, I think
we have a good example to look toward, as we discussed briefly,
in New Hampshire. New Hampshire I think is doing very good work
on building a performance-based assessment system led by
teachers that then will transition into, they hope, their
statewide assessment system. So we will certainly look to their
example and leadership, but we want to make sure that we
support States as they think about taking advantage of this
opportunity.
Senator Collins. Turning to another topic, when I talk to
school administrators in Maine, they tell me that they're very
concerned that the maintenance of effort requirements under
IDEA are producing the unintended effect of hindering the
ability of school districts to provide the most effective and
cost-efficient services to children with special needs, and let
me give you an example that one gave to me.
A school district in Maine wanted to hire an in-house
school pathologist--sorry--speech pathologist to provide
services to children with special needs instead of using a much
more expensive outside contractor. Unfortunately, they found
they could not do so because it would be considered reducing
the maintenance of effort because it would be less expensive.
Yet clearly, from this school district's perspective, having an
in-house speech pathologist is far more responsive to the needs
of these students than contracting out that function.
A GAO report last October also commented on this lack of
flexibility and said that it discouraged school districts from
changing spending decisions even when doing so would benefit
their special needs children. The limited regulatory exceptions
for adjusting the maintenance of effort requirement do not
appear to allow for those kinds of changes.
As Secretary, would you consider refining the maintenance
of effort regulations so that if a school district is actually
trying to produce better outcomes for special needs students,
they can do so even if it ends up lowering the cost?
Mr. King. I appreciate that. Certainly, the principle--I
think we'd agree that the principle of maintenance of effort as
a way of protecting the services that students with
disabilities are receiving and ensuring that school districts
meet those needs is clearly the right principle. I would
certainly like our team to talk with yours about these specific
cases and to look at how they evolved.
As we talked about, I think particularly in some of our
rural areas around the country, these issues are particularly
pertinent, and it's particularly challenging. One of the things
that we tried to do in New York was to leverage shared regional
service providers to try to ensure that districts were able to
get the students the services they need in a sustainable way.
But certainly I want to make sure our teams connect on that and
talk through that because we certainly want to be in a position
of supporting districts in serving students with disabilities
as well as possible.
Senator Collins. Thank you. My final comment is that I hope
you will have a listening session in a rural area--we talked
about that in my office--as opposed to just large urban areas
like L.A. and DC.
Mr. King. Yes, absolutely.
Senator Collins. Thank you.
The Chairman. Thank you, Senator Collins.
Senator Casey.
Statement of Senator Casey
Senator Casey. Thank you, Mr. Chairman.
Dr. King, welcome, and thank you for your testimony and
your willingness to serve. We appreciate that commitment.
I want to commend and salute your family as well, because
when you serve, they serve with you in one way or another. We
appreciate the commitment your family has made to this high
level of public service.
I wanted to start with an issue we discussed and about
which we have a disagreement, and that's the student loan
servicing reallocation question, where I have a disagreement
with the Department and I think it could have an adverse impact
on borrowers, and we don't agree, but I hope we can continue to
engage on that and come to a resolution that's satisfactory.
So, I hope you'll be open to further engagement on that.
I wanted to start, though, with an issue which we don't
hear an awful lot about. As you know, it has a very technical
name, ``significant disproportionality,'' which I guess the
simplest way to describe it is children of color
overrepresented in special education, for a whole variety of
reasons.
I'm pleased that the Department has released a draft rule
to address this issue. We know that this is a huge problem
across the country. Data that I know you're aware of that
covers about a 12-year timeframe, data gathered by the Office
of Special Education Programs indicated, among other things,
that, for example, African American students were 50 percent
more likely and Hispanic students 40 percent more likely to be
identified as a student with a learning disability. Similarly,
African American students were 70 percent more likely, and
American Indian and Alaska Native children were 120 percent
more likely, to be identified as a student with an emotional
disturbance. All of that, of course, results in those students
being suspended at much higher rates than other students.
We know that this issue of so-called overrepresentation is
a widespread problem. We know that in 2013 the GAO found that
only 2 to 3 percent of districts nationwide were reporting
over-identifying students of color as special education. So
that's obviously a failure of our system when only 2 or 3
percent of districts are tracking this and identifying the
problem.
We know that hundreds, literally hundreds of districts
across the country with these disparities go unidentified. The
children don't get the help they need and are misidentified
early on in life and, in essence, among other horrific
problems, the problem feeds the school-to-prison pipeline.
So all of that by way of background, every bit of it I
think you know. Can you walk us through some of the
recommendations of the GAO report?
Mr. King. One of the things that the GAO report asked us to
do is to look at the methodology that States were using to make
these determinations around disproportionality. So what we've
done in the proposed rule is suggested that States develop a
risk ratio methodology that will help them figure out which are
the districts where there is this disproportionality as a first
step to a process of then evaluating why that
disproportionality is happening and then addressing resources
to intervene.
One of the things that we've tried to extract about this
proposed rule is that it's not intended to necessarily reduce
the number of students identified as having disabilities. It's
about ensuring that students are getting the right services. In
some cases it's that students, African American students,
Latino students, particularly African Americans and Latino male
students are in some places disproportionally assigned to more
time outside of the regular classroom even for the same
disability issue that other students aren't assigned out of the
classroom, where we see students disproportionately suspended
from school or assigned to an alternative placement.
We want to see this as an opportunity to get States and
districts to take a second look at why that is happening, and
that's the goal of this rule. We think it's an important step.
We're certainly eager to get public comment on it to ensure
that the final rule addresses the public comments.
Senator Casey. We appreciate that, because I know--I say
this as a former State auditor general, where we would have
audit findings and make a long series of recommendations, and
you wonder if the State agency would be responsive. In this
case, you're taking a GAO report addressing a serious problem
and actually putting into place rules to improve it and to help
our kids. We appreciate your work on this. We appreciate the
Department's work.
Mr. King. Thank you.
Senator Casey. Thank you.
The Chairman. Thanks, Senator Casey.
Senator Roberts.
Statement of Senator Roberts
Senator Roberts. Thank you, Mr. Chairman.
Dr. King, welcome to the committee, and congratulations on
your confirmation. It's good to see your family. I just
happened to notice that your two daughters--I had two daughters
about that age some years ago, so I want to thank them for
their patience, No. 1. No. 2, I happened to observe, like my
daughters, their countenance. I would urge you sir to get up at
5 in the morning, so you can get home at 6 in the evening. You
have no idea how many young men are going to be knocking on
your door.
[Laughter.]
I also have a big stick that I can loan you.
[Laughter.]
So come to my office on a courtesy call and I'll give you
that stick.
Mr. King. Absolutely.
Senator Roberts. I know that we have differences on Common
Core. I don't want to get into that, but it is part of existing
legislation and law, and I want to be absolutely clear. The
language says, ``No officer or employee of the Federal
Government, including the Secretary, shall attempt to
influence, condition, incentivize, or coerce State adoption of
the Common Core State standards or any other academic standards
common to a significant number of States, or assessments tied
to such standards.''
I know that we, again, may have differences, but
nevertheless, will you give us your commitment that you will
respect the intent, as well as the explicit and binding letter
of that prohibition?
Mr. King. Absolutely.
Senator Roberts. Thank you. That's all I need.
Mr. King. OK.
Senator Roberts. You were going to come into my office last
week, and then it didn't work out. Now I want to let you know
that I held a roundtable discussion in Kansas at Washington
University, 12 college presidents, 12 colleges and universities
and 12 business stakeholders to discuss business education and
workforce development. We heard from the higher education
leaders about the impact of Federal programs, policies, and
regulations. And since the Chairman and Senator Whitehouse and
Senator Enzi and others, and Senator Collins here just a moment
ago, mentioned regulations, I want to share this handy chart
from one of the participants, Johnson County Community College,
that has the most students of any university and/or college in
the State of Kansas, even KU, Wichita State.
Thirty-four topic areas of Federal regulation. They have it
in bubbles here, and I would hope we could burst the bubbles.
Taxes, academic programs, environment, admissions, auxiliary
services, financial aid, disabilities, grants, campus safety,
international programs, insurance, health care, immigration,
privacy, athletics, contracts, fundraising, employment,
housing, retirement, intellectual property, sexual misconduct,
research, accreditation, unions, wages, information technology,
program integrity--I'm running out of breath--copyright,
trademarks, contracts and procurement, diversity, accounting,
ethics and lobby.
Here's the deal: every one of these regulations have to be
adhered to, and with the cost/benefit here where the cost is
exceeding the benefit. And we have an awful lot of people here
now that are in charge of these regs and trying to fill these
regs out, and this is not unique just to this community
college, but it is the same, I suspect, nationwide, and I know
in Kansas as well.
My plea to you is that all of these people have jobs to do.
You can't hire 34 people to do all of this that have expertise
in this area to keep up with the paperwork and the regs. Just
like Sheldon Whitehouse said, he said teachers want to be free
to teach, and they want to be able to teach with regards to the
time, as opposed to filling out paperwork.
So my question to you is can you help us and be a partner
in this effort? All of us have obligations with this--we know
that--in the education community. But, my goodness, if you
total all this up and the money spent and the hours spent, like
the Chairman has indicated, we have to do a better job. I just
urge you to be a partner in this effort so we can adhere to
what we want to accomplish. But, quite frankly, I think a lot
of this could be done on the local level.
Now you have 32 seconds to respond.
[Laughter.]
Mr. King. I am committed to working with you on this issue,
and I'm committed to working with the committee to try to
identify places where we can make smart improvements to make
the system more efficient for higher ed institutions. I will
say we are making some progress on recommendations that higher
ed institutions have made in the past.
For example, one recommendation was around prior use of tax
information from the prior-prior year as part of the FAFSA
process. That will be implemented starting next fall, on
October 1. We have also been asked to move FAFSA data. We've
done that. FAFSA will be available on October 1.
So we are making some progress and are certainly willing to
work with you to identify other places.
Senator Roberts. I appreciate that.
My time has expired.
I'm from Dodge City, KS. Senator Collins underscored the
need to look at rural areas. We think we have some very fine
higher institutions of learning, and we have some special
problems there as well. Please get in touch with my office, and
we'll look forward to a good visit. Thank you.
Mr. King. Absolutely.
The Chairman. Thank you, Senator Roberts.
Senator Murray has to leave, so I'm going to ask her to
make her closing comments. Then we'll go to Senator Murkowski.
Senator Warren I think has additional questions, so you can be
first in the second round, and then I will close the hearing.
Senator Murray.
Senator Murray. I just simply wanted to thank Dr. King for
being here today. This is such an important time for students
of all ages. And with all the challenges and opportunities, and
you've heard them across the board here, it's really important
that we have strong leadership at the Department of Education.
Mr. Chairman, I'm really confident that Dr. King is a
strong nominee to transition from Acting Secretary to taking
the position of Secretary of Education. I look forward to
supporting him, and I want to submit for the record statements
from 18 groups in support of his nomination and thank him very
much for all he is doing.
Mr. King. Thank you.
[The information referred to can be found in additional
material.]
The Chairman. Thank you, Senator Murray.
Senator Murkowski.
Statement of Senator Murkowski
Senator Murkowski. Thank you, Mr. Chairman.
Dr. King, welcome. Congratulations on your nomination. I'm
sorry that our schedules didn't work so that we could visit.
Hopefully we'll still have that opportunity to do so at some
point in time.
Both my colleague from Maine and my colleague from Kansas
have mentioned the rural component of education, and as you
know, coming from a State that's one-fifth the size of the
country with about 732,000 people, we've got a lot of rural, we
have a lot of spaces, and we have a lot of very small schools.
I had an opportunity just last week to take five of my
Senate colleagues to a place in Southwest Alaska, Bethel, a
large regional community, primarily Alaska Native. But we went
further beyond Bethel to the community of Oscarville, 80
people, 17 kids in the school, two teachers, challenges in
delivering education in a very rural, very remote area where
broadband is an issue; quite honestly, basic water and
sanitation is an issue.
The question to you here this afternoon is actually pretty
general in terms of how we address those in very rural
communities, how we ensure that these children--and your words
are there are children who stand too far behind their peers,
and these are rural students, and these are Native American
students. Again, Alaska really fills that bill.
You've also indicated as one of your priorities to do more
to ensure a diverse pipeline of future educators. One of the
things that we're struggling with in Alaska is how we get more
Alaska Native children to believe that being a teacher can be a
noble calling for them.
Can you give me a little assurance about how you view some
of these challenges in educating our rural children and Native
American children, Alaska Natives?
Mr. King. Absolutely. I was State chief in New York, and
even though when folks hear New York they think of New York
City, we had 700 districts spread all throughout the State, and
many of the districts are small rural districts in the North
Country, up near the Canadian border or out in Western New
York, and I spent a lot of time on rural issues, could see how
districts were struggling with declining enrollment, the
difficulty of providing art, music, AP classes, finding a
physics teacher, districts that were struggling to try and
preserve the sense of community around school in the face of
declining opportunity.
I think it's very important that we focus on rural
education. I'm proud that we have a competitive priority in
many of our grant programs to focus on rural areas. We have
about 20 percent of our current innovation grants that are
focused in rural communities, and we're seeing some very good
results from many of those projects.
One of the things I worked on in New York was a virtual AP
initiative to try and ensure that maybe folks couldn't hire an
AP teacher but they could share one across a set of districts
in a region and, through blended learning, make those classes
available to students.
So we want to make sure that rural educators are very much
a part of the conversations at the Federal level, at the State
level, and at the local level in the implementation of the
Every Student Succeeds Act. We're trying to get resources and
opportunity. The President's Connect Ed initiative is really
focused on trying to improve issues of bandwidth in rural
communities, and we want to continue that work together with
the FCC.
On the issue of Native students, I'm very worried about the
stagnant performance of Native students. If you look at our
high school graduation rate, which just reached a record high,
we saw increases for every subgroup except for Native American
students, which was flat. I think there's more that we can do
to support Native communities in trying to infuse Native
language and Native culture into the school programs to raise
students' aspirations. We have a Native Youth Community
Projects program. The President has proposed an increase in
funding for that. We're seeing some promising results from
those grantees, and I would love to work together with you to
do more on Native issues.
Senator Murkowski. I'd like to do that, and I particularly
appreciate the fact that you've mentioned the Native languages.
That's something Senator Franken and I have worked on and have
included within ESSA.
Very quickly, this relates to data and privacy of data. I
think we all understand that we want to be making data-informed
decisions about effectiveness of programs, but many parents are
coming to me with very sincere concerns about the privacy of
the data that is collected, especially given the Department's
inability to maintain the security of the post-secondary
student aid data bases.
What's your message to those parents, and the students and
legislators, that are concerned about the data collection, and
thus the privacy associated with it?
Mr. King. Data privacy, data security are top priorities
for the Department. As I mentioned earlier, we're doing a lot
of work to strengthen our cyber security posture so that we can
continue to keep higher education data in particular but all of
the personally identifiable information that we have at the
Department safe and secure.
States need to be focused on the same thing as do
districts. The President has made proposals around additional
data security measures we think we can take together, focus on
ensuring that students are not subjected to marketing through
the tools that they may be using in school.
I think as a country we have to continue to work to make
sure that we protect data privacy, and oftentimes, as you know,
parents and teachers may be unaware of how much information is
being collected by an application that they have downloaded. We
have to make sure that we put in place strong legal
protections, but also provide good guidance. We have a FIRPA
office that tries to give good guidance to districts and States
around issues of data privacy and data security.
Senator Murkowski. I know that that's something also that I
would like to work with you on as well. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thanks, Senator Murkowski.
Senator Warren.
Senator Warren. Thank you, Mr. Chairman. I appreciate your
giving me a chance to have a second round of questions here.
And I appreciate, Dr. King, that you have a lot that you're
going to deal with at the Department of Education, but I want
to raise one more issue before we quit for the day, and that is
another ongoing problem at the Department of Education, the
students who were cheated by Corinthian College.
Before Corinthian College collapsed, this for-profit
college sucked down billions and billions of dollars in Federal
student loan aid by roping in students with false and
misleading information, and then saddling them with debt that
was just going to be impossible to repay. It was outright
fraud, and in response the Department made a lot of promises to
Corinthian's victims.
Last April, the Department promised to give--and I'm
quoting here--``give Corinthian students the relief they are
entitled to under Federal law.'' Two months later, the
Department announced that it would ``find ways to fast-track
relief based on legal findings for large groups of students,''
and that there would be ``no need for students to make any
individual showing that they were affected by the school's
fraud.''
The Department also estimated last summer that about 40,000
former Corinthian students would be eligible for this so-called
fast-track relief. Now, that's out of hundreds of thousands of
total Corinthian students that the Department acknowledged
could be eligible for the relief. It is now 8 months later and
just 1,300 of those 40,000 fast-track students have received
relief, and I want to know what the plan is here to actually
deliver on the promises the Department has made.
It seems to me, Dr. King, that the Department is moving
painfully slow, while students who got cheated are struggling
under debts that they were conned into taking on. Time is
running out for these students.
So what I'd like to know is how do you plan to live up to
the Department's promises and actually ensure that each and
every student who was defrauded receives debt relief now, not
years from now but now?
Mr. King. I appreciate the question. A few things to know.
The Special Master, Joe Smith, is working diligently with a
team, and we're adding capacity to that team to try to respond
to the existing claims.
Senator Warren. Can I just stop you right there, though,
Dr. King?
Mr. King. Yes.
Senator Warren. Because this is part of what's bothering
me. I don't understand why this takes long. This isn't hard,
what we're trying to do here. Students are waiting, their
credit is getting worse and worse, the interest is accumulating
on these loans. The process needs to move faster, and I don't
get why it doesn't move faster. You know they've been
defrauded.
Mr. King. Right. We're trying to make it move faster. I can
say a promising note is that $115 million has gone to students,
either through borrowed defense or through closed school
discharge. We're trying to group claims so that we can respond
to them as quickly as possible. We are in the process of a
negotiated rulemaking on new borrowed defense rules going
forward that will make it easier for the Department to
efficiently group claims.
Senator Warren. That's going to be 2017.
Mr. King. So the challenge has been that the legal
requirement, as you know, is for a demonstration that there was
a clear violation of State law. We have students who are in a
variety of States, and so we are working through those.
On campuses where we have a clear finding, and this has
been true I believe in the Heald and Everest cases where we
have a clear finding at the State level of a State law
violation, we have been able to group claims or are in the
process of grouping claims. But you're right, we need to make
the process move faster, and we intend to.
Senator Warren. I really want to push on this. We
potentially have hundreds of thousands of students who have
been cheated here. You promised fast-track to 40,000. That was
three-quarters of a year ago nearly, two-thirds of a year ago,
and we've only gotten about 1,300 people through it.
I want to remind us that Congress gave the Secretary of
Education broad authority to cancel the loans of students who
attend colleges that broke the law. So I hope if you are
confirmed that you will use that authority to ensure that the
students get every dime of relief that they deserve without
making them jump through a bunch of unnecessary hoops. They
have already been hit hard enough, and this is the time for the
Department of Education to step up and be on their side.
Mr. King. Yes. I'm committed to try to protect the
interests of borrowers and also to do what we can through the
enforcement unit and gainful employment regulations to make
sure that we do not have a repeat of Corinthian, that we can
avoid that.
Senator Warren. And that is powerfully important.
Thank you, Dr. King. Thank you very much for your
willingness to serve, and thanks for sitting through two rounds
of questions on this stuff. These are important issues. Thank
you.
Mr. King. Absolutely.
Senator Warren. Thank you, Mr. Chairman.
The Chairman. Yes, thanks, Senator Warren.
Dr. King, I have just a few questions, and then we'll wrap
up the hearing.
Senator Roberts asked you questions about academic
standards, and you gave an answer, so I don't think I need to
ask that. But there's a pattern in this legislation which is
pretty unusual, and it comes from the fact that those of us who
voted for it--in the Senate 85 to 15, and in the House, the
President signed it--it felt like the Department was
overreaching.
So there are some literal specific prohibitions in the law
about what the Secretary should not do to reemphasize our
determination that this is an important shift of direction,
which you've acknowledged in your testimony, to try to restore
more of the responsibility to those closest to the children.
One of those is on challenging academic standards. I asked
Dr. Evers, the Superintendent of Instruction for Wisconsin, on
Tuesday. I said, do you read the new law to say that if
Wisconsin wants to have Common Core, which it does, I believe,
that it may? If it does not want to have Common Core, that it
may not? That if it wants part of Common Core or more than
Common Core, it can do that? It simply has to have challenging
academic standards that are related to the entrance
requirements for the public institutions. That's the way he
read that.
Let me ask you about teacher evaluation. Under the waivers
that the Department granted to 42 States, the Department took
the position that if you want a waiver from the provisions of
No Child Left Behind, and if you didn't get a waiver, in effect
it meant that almost all of your schools were labeled as
failing. In order to get a waiver the Department said we'd like
you to do a few other things, sort of a ``Mother May I''
process I described. One of those was teacher evaluation.
I'm a big fan of teacher evaluation. In fact, if the
National Education Association could have had a grade of lower
than an F, I would have earned it 30 years ago when Tennessee
became the first State to pay teachers more for teaching well.
I actually think that finding fair ways to reward outstanding
teaching is the Holy Grail of public education.
But when I came to Washington, I did not think that we
should be telling States how to evaluate teachers. Yet, to get
a waiver, there were some very specific definitions about what
a teacher evaluation system should be. In fact, three States--
Iowa was one, Washington was another, California was another--
had their waivers either rejected or revoked because the
Secretary didn't believe their teacher evaluation system met
his standards.
Now, the new law allows but does not require States and
districts to use funds, mostly title II funds, to support
teacher and principal evaluations based upon multiple measures,
but it prohibits the Secretary or any other officer of the
Federal Government from mandating, directing or controlling any
aspect of a teacher, principal, or other school leader
evaluation system or specific measure of educator effectiveness
or quality.
To simplify it, do you agree that that means that the
Secretary of Education does not now need to approve the teacher
evaluation system in a State?
Mr. King. Yes, and I think the law is clear that teacher
evaluation systems are to be designed by States and districts.
The Chairman. Do you agree, however, that finding fair ways
to evaluate teachers is immensely important to the future of
our system of public education and that it would be a good idea
for the Secretary to look for ways to encourage it and honor
those who do it well and to make States aware that they could
use the $2.5 billion or so that's in the title II money for
that purpose, and that we have the teacher incentive fund,
which has about $230 million in it, to help local school
districts who wish to find new ways to do that, to do it?
Mr. King. Absolutely. I think the teacher and school
incentive fund creates an opportunity for important local
innovation and evidence gathering around effective models of
evaluation. I also think the equity plans that States are
working on to ensure equitable access to effective teaching is
going to foster a set of innovations and evidence that States
can share, and we have an opportunity to lift up best practice.
The Chairman. One of the things we heard most about was
testing, and when we started out writing the new law, I
suggested that maybe we get rid of the 17 Federal test
requirements because we had such a blowback on the testing. But
the more I listened and the more we heard from teachers and
principals and States, the more it became clear to us, those of
us on the committee, that it wasn't the 17 Federal tests that
were the problem. It was the State tests. In fact, the 17
Federal tests--which aren't really Federal tests, they're
required by the Federal Government but they're State-designed
tests from years 3 through 12; they probably don't take more
than 2 hours or so per test over a period of time to be done--
were important, and those tests needed to be given. We need to
know the results. They need to be disaggregated so people will
know what was happening.
So the solution we came to and the problem we found was
that it was the Federal test-based accountability system, which
is fancy language for saying because the Federal Government
decided what to do about the results of the test and attached
so many consequences to just those tests, that that was
incentivizing States to give a lot of tests to prepare for
those 17 federally required tests.
So the thrust of this legislation is to say keep the tests,
report it so we know how the children are doing, but restore to
States and communities and classroom teachers the decisions for
what to do about the tests. In other words, the States would
come up with the accountability system.
There are some requirements about what the accountability
system should have in it--State tests, graduation rates, a few
other things--but it also says the Secretary is prohibited from
prescribing the weight of any measure or indicator used to
identify or meaningfully differentiate schools in the
accountability system.
Do you intend to follow that provision and the intent
behind it?
Mr. King. Certainly as we move forward, we intend to follow
the letter of the law. I think you're right that we have seen
over the last 10 years, because of the narrow focus of No Child
Left Behind on test-based accountability, we have seen a
proliferation of tests in some places, both at the State level
and at the district level, and I think the new law gives us an
opportunity for a reset on that, and for State and local
conversations about right-sizing the amount of assessment.
The Chairman. And, if I'm not mistaken, you've already
issued a guidance to suggest to States what might amount to
over-testing, but it's not a mandate, it's a suggestion. Am I
correct about that?
Mr. King. We have given them guidance on how they can use
Federal funds at the State and district level to review the
assessments that are given, figure out if some are unnecessary
or redundant, and also figure out if some are of low quality
and should be replaced by more performance-based tests.
The Chairman. But the spirit is here's how you might do
that, not how you must do that.
Mr. King. That's right.
The Chairman. I applaud that, which is why I bring it up,
because I think that's the spirit of the law as well as the
letter of the law. The same with identifying and fixing low-
performing schools. This was important to a lot of people.
Senator Murphy mentioned that. It was important to the
President that there be a provision in the bill, and so it's
there.
But what's also there is that the Secretary is prohibited
from telling States how to fix so-called low-performing
schools. Beforehand, with the waivers, there were six different
ways to do that, and I remember putting in the legislation a
few years ago that a seventh way would be that the State could
come up with its own version of how to fix a low-performing
school. Next thing I knew, within about a year, the Department
had issued a regulation defining how a State could do it, which
was contrary to the purpose.
But in the same spirit, do you agree that while it's
important that States identify schools that are in need of
improvement and that there are a number of steps to take and
there are a number of things to do, that in the end the
Secretary is prohibited from prescribing the specific
methodology used by States to differentiate or identify
schools, and any specific school improvement strategy that the
State or local education agencies establish and implement to
intervene, support, and improve schools and student outcomes?
Mr. King. Certainly, as we move forward with State
flexibility around design of their accountability systems and
design of their interventions, we'll adhere to the letter of
the law. We think that State and local flexibility is a good
thing. Again, I do think it's important that there are
parameters around an equity focus, and where those
interventions are not helping to close achievement gaps, we all
have to remain vigilant that States intensify or change those
interventions to make sure they get to closing achievement gaps
for better outcomes.
The Chairman. There will probably be some gray areas as
they come up, but we had a spirited debate about that, both in
the committee and on the floor of the Senate. Senator Murphy,
for example, offered an amendment that would have had more--
stricter guardrails I think would be one way to say it, more
Federal supervision of what the States were doing in a variety
of areas in the accountability system. That amendment lost. It
only got 43 votes. It didn't pass. Just as I offered an
amendment to give States the ability to take all the Federal
money and let it follow the children to the school of their
choice, called Scholarships for Kids. That got about 43 votes.
That didn't pass. So I don't expect you to implement a school
choice or voucher program because it didn't make it into the
law, and we hope you will respect the consensus we came to.
Let me move on and conclude with just a couple of questions
about higher education. This is really an area where I think,
as we discussed when you and I visited earlier this week, you
and the Administration have an opportunity. As you know, my
attitude toward you or any of the other President's Cabinet
members in our jurisdiction is that once you're confirmed, I
want to do my best to create an environment in which you can
succeed, because if you succeed, then our country and our
children and our schools succeed.
That also applies to our colleges and universities, and
this committee has done a lot of important work in two areas.
One is making it simpler and easier to apply for student aid
and to pay back student loans. That's one. And another is to
cut through the jungle of red tape that interferes with the
way--to Senator Roberts' point, the way schools, the way our
6,000 colleges and universities are managed.
We have lots of bipartisan agreement on that, and one area
is the so-called FAST Act that Senator Bennet and I and Booker
and King and Isakson and Burr all support. We want to reduce
the number of questions on the Federal student aid application
form. The President thinks that's a good idea and has said so.
Your Department has already begun to identify some questions
that are superfluous. We, Senator Bennet and I, wanted to take
the 108 questions that 20 million families fill out down to 2.
We may not get to 2, but we'd like to get closer to 2 than to
108. And then you've already taken steps, as you said, to allow
the commonsense proposal of students who fill out the form to
use the tax forms they've already filled out rather than the
ones they haven't filled out, and to do it at an earlier time.
That's also a bipartisan proposal here.
We have bipartisan proposals, and the President has talked
about this, to streamline student loan repayment options. There
are nine ways to do that now. Many students don't know how
generous the repayment provisions are, and if we simplify them,
we think more will take advantage of that.
We have bipartisan support for a year-round Pell grant,
even though we have some disagreement over how to pay for it.
And in addition to that, we have a report which I like to call
the Mikulski report, but we'll call it the Kerwin-Zeppos report
that the Chancellor of Maryland and the Chancellor of
Vanderbilt put together over the last 3 years with a group of
higher education officials to identify 59 specific burdensome
regulations or requirements, a couple of which I've already
mentioned.
Chancellor Kerwin and Chancellor Zeppos met with Secretary
Duncan and talked with him about a dozen of those 59 the
Department itself could do, and you're already taking steps in
a couple of cases.
The four Senators I just mentioned are working--we probably
have 27 more. We may get up to 35 or 36 that we agree on that
we could pass which would reduce the onerous paperwork that has
built up over eight reauthorizations of the Higher Education
Act.
So my question is, will you work with us over the next 10
months, if confirmed, to take those specific proposals from the
Kerwin-Zeppos Higher Education Report, the jungle of red tape
report, and if you can implement them, try to implement them?
And will you work with us on the bipartisan legislation I just
described on student aid simplification for both the
application and the repayment, to see if the Department itself
can do some of that; or, if not, to let us know what sort of
legislation we need to pass this year so students can take
advantage of that?
Mr. King. Yes. I'd like to work with you on both things,
certainly to try and identify places where the Department can
reduce burdensome regulations that aren't delivering for
students. We should do that. And certainly I'd love to work
together on a bipartisan reauthorization of the Higher
Education Act.
The one thing I would add to the list that you shared, and
I know this is a view that we share, in some way to shift the
incentives in the higher education sector toward a focus on
completion. I do worry that we know that many of the students
who are struggling to pay back their debt are students who
start but don't finish. They have some courses, they don't have
a degree, they can't get the good job that would come with a
degree, and therefore they can't pay back their debt. If we
could get institutions paying more attention to completion, not
just enrollment, I think that's another opportunity for
progress on higher education.
The Chairman. You're exactly right about that. The default
rates are especially high for students who don't complete their
degree, so that's an excellent suggestion. I'll be glad to work
with you on that. There are other good ideas that we have from
both sides of the aisle to discourage over-borrowing. There are
some provisions, and this may be an area where you can take
executive action that's already authorized that seems to limit
what colleges are able to do to counsel students to say, well,
if you go into the theater instead of into biomedical
engineering, you might have a little harder time getting a job
and paying it back over a period of time.
And I would just make the observation, I heard Senator
Warren's comments on the Corinthian tragic situation for those
students. My general philosophical attitude is a little
different. If I buy a car that's a lemon, I sue the car
company, not the bank. I know that the Federal law does have a
provision about forgiving loans where there's a fraud. It
hadn't been used much until recently, and I think it needs to
be used carefully, because we have, from the taxpayers' point
of view, $35 or so billion of Pell grants every year to low-
income students that do not have to be paid back. We make $100
billion of loans every year to students that we expect to be
paid back, and we have a very generous provision that says for
many students in public service that you don't have to pay it
while you're in those jobs, or you don't have to pay more than
10 or 15 percent of your disposable income, and if it's not all
paid back after 20 years it's forgiven.
I would counsel you to follow the law carefully on those
claims of fraud that require forgiveness, and I'd like to
continue discussion with you about any expansion of that
authority when the time comes.
Dr. King, those are all the questions I have. There may be
some questions that members of the committee submit to you. I
would encourage you to answer them as promptly as you can.
The hearing record will remain open until March the 1st.
Members may submit additional information for the record within
that time if they would like.
Thanks to everyone, especially Dr. King's family and him,
for being here today.
The next meeting of the committee will occur at 10 a.m. on
Wednesday, March the 9th, to consider the second in a markup of
bipartisan innovation legislation--that's biomedical innovation
legislation--and to consider the markup of Dr. King's
nomination to be the United States Secretary of Education.
The committee will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Letter Submitted by Senator Alexander
February 10, 2016.
John B. King, Jr., Acting Secretary,
U.S. Department of Education,
400 Maryland Avenue,
Washington, DC 20202.
Dear Acting Secretary King: On behalf of States, school districts,
educators and parents, we write to express our strong, shared
commitment to making the Every Student Succeeds Act (ESSA) a law that
puts students first. We invite you to work with us to ensure that
communities determine the best methods of educating our Nation's
children.
Although our organizations do not always agree, we are unified in
our belief that ESSA is a historic opportunity to make a world-class
21st century education system. We are dedicated to working together at
the national level to facilitate partnership among our members in
States and districts to guarantee the success of this new law.
ESSA replaces a top-down accountability and testing regime with an
inclusive system based on collaborative State and local innovation. For
this vision to become a reality, we must work together to closely honor
congressional intent. ESSA is clear: Education decisionmaking now rests
with States and districts, and the Federal role is to support and
inform those decisions.
In the coming months, our coalition--the State and Local ESSA
Implementation Network--will:
Work together to ensure a timely, fair transition to ESSA;
Coordinate ESSA implementation by Governors, State
superintendents, school boards, State legislators, local
superintendents, educators and parents;
Promote State, local and school decisionmaking during
implementation; and
Collaborate with a broader group of education stakeholders
to provide guidance to the Federal Government on key implementation
issues.
In ESSA, Congress recognizes States and schools as well-suited to
provide a high-quality education to every child, regardless of their
background. We have long prioritized lifting up those students who need
help the most and our members stand ready to continue this work.
Our organizations look forward to a cooperative, collaborative and
productive relationship with you and your staff throughout the
implementation process.
Sincerely,
Scott D. Pattison, Executive Director/CEO National Governors
Association; William T. Pound, Executive Director, National Conference
of State Legislatures; Kristen J. Amundson, Executive Director,
National Association of State Boards of Education; Daniel A. Domenech,
Executive Director AASA: The School Superintendents Association; JoAnn
D. Bartoletti, Executive Director, National Association of Secondary
School Principals; Lily Eskelsen Garcia, President, National Education
Association; Thomas J. Gentzel, Executive Director, National School
Boards Association; Gail Connelly, Executive Director National
Association of Elementary School Principals; Randi Weingarten,
President, American Federation of Teachers; Laura M. Bay, President,
National PTA.
______
Title IX Letters Submitted by Senator Murray
Faculty Against Rape (FAR),
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: We write to
commend the DOE and OCR for their unflagging commitment to addressing
the problem of sexual violence on campuses, and to urge the HELP
committee not to turn the clock back by challenging the Assistant
Secretary's right to issue much-needed clarification and guidance--
guidance created in consultation with legal scholars and experts.
As members of Faculty Against Rape (FAR), a group of more than 300
faculty and civil rights activists from across the United States, we
want to share some of what we have learned in our efforts to make
college campuses a safe place for all. We started FAR in the summer of
2014 as an ad-hoc volunteer collective whose mission is to get more
faculty involved in preventing sexual assault and sexual harassment and
improving response on campus. FAR is also committed to protecting
faculty who experience retaliation for doing so. Over the past 2 years,
FAR has provided resources for faculty to learn how to best support
survivors, tools forzculty who want to get more involved in reform
efforts, and support for faculty who face retaliation. We have also
developed curriculum and facilitated workshops for faculty around the
country on integrating information about campus sexual assault into the
curriculum, both as syllabi clauses and as key themes. Collectively,
our members have supported literally hundreds of survivors at campuses
across the country. Many of them have endured significant retaliation
from university administrations who want to protect the university
brand, even at the cost of the safety and well-being of students.
Our experience has afforded us a unique perspective on key issues
in understanding the efficacy of the DOE's response to the problem.
Here are two points we believe the HELP Committee should be aware of:
1. Higher education is at a watershed moment in understanding the
problem of faculty sexual predators:
The problem of serial sexual predators who move from campus to
campus--of ``open secrets,'' or known problems within a specific
discipline--has become an issue of increasing concern. Over the past 2-
3 years, there have been national news exposes about faculty sexual
predators at Yale University,\1\ the University of Miami,\2\
Northwestern University,\3\ Berkeley,\4\ UCLA,\5\ Arizona State
University,\6\ Southern Connecticut State University,\7\ Vanderbilt,\8\
Columbia University,\9\ and Montana State University,\10\ to name just
a few.
---------------------------------------------------------------------------
\1\ Cf. Tamar Lewin, ``Seven Allege Harassment by Yale Doctor at
Clinic,'' New York Times, April 13, 2015; Nick DeSantis, ``Campaign
Raises Money to Aid Lawsuit Accusing Yale Philosopher of Sexual
Assault,'' The Chronicle of Higher Education, May 13, 2014.
\2\ Cf. Tyler Kingkade, ``University Of Miami Sued Over Handling Of
Colin McGinn Harassment Claims,'' Huffington Post, October 16, 2015.
\3\ Cf. Rebecca Schuman, ``Title Nein: Northwestern University
found that a star professor violated the sexual harassment code in his
treatment of a student. Why is he still teaching?,'' Slate, February
24, 2014.
\4\ Cf. Azeen Ghorayshi, ``Famous Berkeley Astronomer Violated
Sexual Harassment Policies Over Many Years,'' BuzzFeed, October 9,
2015.
\5\ Cf. Carla Rivera, ``UCLA Graduate Students' Lawsuit Alleges
Sexual Harassment,'' Los Angeles Times, June 15, 2015.
\6\ Cf. Nicholas Palomino Mendoza, ``Students Seek Clarity, Closure
in Student-Professor Relationship Investigations,'' The State Press,
May 7, 2014.
\7\ Cf. Jim Shelton, ``SCSU Protest Centers on Sexual Misconduct
Claim,'' New Haven Register, September 13, 2013.
\8\ Cf. Peter Jacobs, ``Former Vanderbilt Grad Student Files $20
Million Lawsuit Claiming Sexual Harassment by Professor,'' Business
Insider, July 17, 2014.
\9\ Cf. Barbara Ross, ``Former Students Sue Columbia University,
Accuse Professors in Sexual Harassment Suit,'' New York Daily News,
January 23, 2013.
\10\ Cf. Gail Schontzler, ``MSU Investigation Finds Professor
Sexually Harassed Student,'' Bozeman Daily Chronicle, September 3,
2011.
---------------------------------------------------------------------------
Although some of these faculty have been sanctioned by the
university or disciplines they work in, it is often impossible to know
whether a professor has harassed or assaulted students at other
universities due to non-disclosure agreements and/or labor laws.
In other words, in order to deal with the problem of faculty sexual
predators, universities need external help. We are dealing with a
problem that is likely to be as widespread as the problem of sexual
abuse in the Catholic Church. In philosophy alone, for example, there
have been three significant cases of faculty sexual misconduct reported
in the media over the past 4 years, and some activists in philosophy
report that they are aware of as many as 30-40 similar ``open
secrets,'' that is, faculty who are serial predators.
It is not only appropriate--but in fact necessary--for the
Department of Education to be actively involved in regulating the
response to the problem because: (1) faculty predators can move easily
across State and national lines, from institution to institution, and
(2) unlike the Catholic Church, institutions of higher education have
no governing body, no way of ensuring that a serial predator does not
simply accept a proverbial ``golden parachute'' or voluntary severance
agreement with a confidentiality clause that enables a problem-free
transition to another university.
For each serial predator, there are multiple--even dozens, in some
cases--scientists, writers, thinkers who have left the field that they
love, whose talents have been lost, because of the discrimination they
have been subject to. Clearly, if our goal as a nation is to provide
equal access to educational opportunities, to tap the talent of the
widest and most diverse pool possible, to avoid the brain drain that is
caused by widespread sexual misconduct in academia, we need to talk
about the problem--to break the unwritten code of silence implied by
the norms of collegiality. Higher education needs the Department of
Education to continue to actively provide guidance, clarification, and
support. We are a close-knit family, and cannot cleanup our own
problems without external support.
To put it even more succinctly and explicitly: with new stories
about faculty sexual misconduct breaking every month, this is a
watershed moment. Higher education is on the brink of a crisis similar
to the sex abuse scandals that rocked the Catholic Church, and the OCR
and DOE are the only agencies empowered to provide the guidance needed
to chart a path through the storm. We respectfully urge the HELP
committee not to undermine Federal oversight at precisely the point at
which it is most needed.
2. The Dear Colleague Letters serve as much-needed non-legal
guidance documents:
In the past 3 years, faculty who have served as advocates for
survivors on campus have been subjected to both overt and covert forms
of retaliation; some were denied tenure, others were prevented from
teaching courses on these issue, and a few faculty members were pushed
out through legal agreements. Those who remain involved have
experienced marginalization. The message of college administrators has
been clear: faculty have been discouraged from playing an active role
in addressing the problem. Evidence of retaliation against faculty who
have demanded accountability has had a chilling effect on junior
faculty as well as students.
The 2013 Dear Colleague Letter, which reminds universities of the
fact that retaliation for engaging in an action protected under title
IX is itself a violation of title IX, has been an absolutely essential
tool for faculty, students, and activists on both sides of the debate
to use as a means of securing the right to free speech.
The same is true of the 2011 Dear Colleague Letter, which provided
important guidance in understanding what constitutes sexual harassment.
Although the material provided in the guidance was in theory available
in the 1997 and 2001 document, which included citations to relevant
case law discussing the types of conduct that might constitute sexual
harassment, the reality was that the information was more or less
inaccessible. Similarly, although the preponderance of evidence
standard described in the 2011 DCL was being used by an estimated 80
percent of institutions \11\ prior to 2011, and is the standard used
for all other civil rights laws, there was confusion regarding the
appropriate standard due to the fact that certain types of sexual
violence are also not just civil rights violations, but also criminal
acts. (To arbitrarily require that complainants in title IX cases
adhere to a higher standard of proof than is required for other civil
rights laws would be to discriminate against the title IX complainants,
most of whom are female.)
---------------------------------------------------------------------------
\11\ See, for example, http://www.thefire.org/pdfs/
8d799cc3bcca596e58e0c2998e6b2ce4.pdf.
---------------------------------------------------------------------------
In other words, the Dear Colleague Letters have been an important
tool in helping clarify the requirements--and limits--of title IX as it
was already being interpreted in both case law and practice. They were
issued at critical junctures, in response to the surge of interest and
attention to campus sexual assault, and in response to confusion about
specific and well-established aspects of the law that were buried in
relatively inaccessible documents. Given current confusion regarding
issues such as the acceptable range of sanctions for perpetrators, the
permissibility of sharing information about perpetrators who move from
campus to campus, and the question of whether faculty accused of sexual
misconduct should be permitted to continue teaching, it is reasonable
to think that additional guidance will be warranted in the near future.
As faculty who have worked tirelessly supporting hundreds of
student survivors across the country, we have seen firsthand, time and
again, that the problem of sexual misconduct on college campuses is
real and serious; and the on-campus systems meant to address it are, by
in large, broken. In virtue of this experience, we believe the OCR's
continued ability to offer much needed clarification and guidance is
not only welcome, but crucial to achieving gender equity in educational
institutions.
Sincerely,
Faculty Against Rape (FAR).
______
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: As of today,
title IX complaints that we filed with the Department of Education's
Office for Civil Rights against the University of Notre Dame, have been
under open investigation for 898 days. The reasons that prompted our
filing complaints necessitated our leaving the university.
Because we are graduate students, though we transferred mid-stream,
we still left with degrees--just not the ones we came for. We sometimes
wonder if there will ever come a day when we can remember our status as
alumnae with pride rather than nausea. For now, we would like to put
our time at Notre Dame behind us and focus on finishing our Ph.D.'s,
but that's easier said than done, especially when one feels justice has
been at best (and hopefully) delayed, at worst, entirely evaded.
We say this not to impugn the OCR's handling of our complaints. We
will wait as long as it takes for the right result, we would rather
their investigation be thorough than cursory, and we believe they've
done an admirable job operating with what little resources they have.
We say it instead to underscore the absurdity of the increasingly
popular narrative that the OCR is zealously holding institutions
hostage to guidance of questionable legal status under threat of
revoking Federal funds.
Developing a full picture of the realities of title IX enforcement
would require listening to those who have filed complaints, not merely
those who have been subject to investigation, nor outside groups with
political interests at stake. When we filed our complaints, Notre Dame
was already under a resolution agreement with the OCR--a resolution
agreement that has been in place since the conclusion of an
institutional review prompted by the suicide of Lizzy Seeberg; a
resolution agreement that we are alleging Notre Dame violated,
repeatedly.
We don't yet know what the outcome of our complaints will be, but
we do know that even if the OCR determines our allegations are
substantiated by the evidence, there is no sanction at their disposal
that would be a genuinely appropriate consequence given the totality of
the circumstances. There is no undoing the years we spent anguished yet
determined. There is no rewinding the years lost toward the completion
of our educations. There is no giving back now, after 898-plus days of
waiting, what we were promised when we accepted Notre Dame's offers of
admission. There is only the best we can hope for: another resolution
agreement, some measure of validation, some measure of closure, and
hope that the trouble of dealing with the outcome of this investigation
would deter them from simply violating the next in turn. Since a group
of current Notre Dame students have reached out to one of us just this
academic year for advice because their own experiences have mirrored
ours, we strongly suspect that hope would be naive.
That title IX is being used as a weapon by student activists and
that the OCR is overreaching in its enforcement of the law makes for an
effective framing for incomplete or misleading stories to go viral, but
it simply doesn't cohere with reality. What students need are strong
policies and procedures in place so that their concerns about
discrimination can be brought forward safely, heard equitably, and
adjudicated fairly in accordance with standards applicable to other
civil rights claims--not only in theory, but also in fact. What the
Department of Education needs is more resources rather than less if we
are to have any hope of realizing gender equity in education in the
United States--we are, quite simply, not there yet.
Sincerely,
Jane Doe, One.
Jane Doe, Two.
______
Know Your IX,
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: For too long,
gender-based violence in our Nation's schools has been swept under the
rug, impeding victims' access to their civil right to education under
title IX of the 1972 Education Amendments.\1\ As young people whose
educations have been imperiled by gender violence in school, we know
firsthand that the clarifying guidance issued by the Department of
Education's Office for Civil Rights (OCR) has proved pivotal in
protecting student survivors' access to educational opportunities.
Before OCR issued its 2011 Dear Colleague Letter, schools routinely
allowed hostile environments to persist on campus, instituted
disciplinary processes that were neither equitable nor fair, and denied
survivors the resources they needed to continue their educations. We
write to commend OCR for its steadfast commitment to addressing the
issue.
---------------------------------------------------------------------------
\1\ Title IX of the Education Amendments of 1972, Pub. L. No. 92-
318 901(a), 86 Stat. 235, 373 (codified at 20 U.S.C. 1681(a)
(2012)).
I. Gender-based harassment and violence is pervasive in elementary,
secondary, and post-secondary schools across the country, jeopardizing
students' ability to access education.
One in five women, as well as many men and gender nonconforming
students, will experience sexual violence during their time in
college.\2\ This violence often limits, or outright precludes, victims'
ability to learn: Many survivors go to great lengths to avoid their
perpetrators on campus, skipping shared classes,\3\ avoiding shared
spaces, or hiding in their dormitory rooms. Others struggle with post-
traumatic stress disorder (PTSD), depression, eating disorders,
anxiety, flashbacks, and nightmares,\4\ even attempting suicide or
engaging in self-harm.\5\ Without support and accommodation, formerly
successful students watch their grades drop as they struggle to
participate in, or even attend, their classes.\6\
---------------------------------------------------------------------------
\2\ See David Cantor, et al., Report On The AAU Campus Climate
Survey On Sexual Assault And Sexual Misconduct, Westat 13-14 (2015),
http://ow.ly/XOLl5; see generally B.S. Fisher, L.E. Daigle, & F.T.
Cullen, Unsafe in the Ivory Tower: The Sexual Victimization of College
Women (2010); Christopher P. Krebs et al., The Campus Sexual Assault
(CSA) Study, NAT'L INST. JUST. 5-3 (2007), https://www.ncjrs.gov/
pdffiles1/nij/grants/221153.pdf; [https://perma.cc/W6MP-X7VE].
\3\ See Rebecca Marie Loya, Economic Consequences of Sexual
Violence for Survivors: Implications for Social Policy and Social
Change 96 (June 2012) (unpublished Ph.D. dissertation, Brandeis
University) (on file with Know Your IX) (``Probably like 95 percent of
the time, students will skip class for one reason or another. And, I
mean, the reasons are because the perp's in the class, because the
perp's friends are in the class, because, sometimes schoolwork just
gets to be too much, again in the aftermath of the assault. Sometimes,
they've come out to the professor as a survivor, and the professor
hasn't . . . been particularly supportive, so they won't go back to the
class. Sometimes it's because they know that on their way to the class,
they'll see the perp because of their schedules or whatever. Sometimes
they might be in different majors with different course studies, but
they'll have like a 101 class together, so that something will
intersect, so they'll stop going to the 101 class. So they won't stop
their studies on their own plane, but they'll stop the ones that
intersect with the perp.'' (quoting a legal services provider)).
\4\ Id. at 25-28.
\5\ See Nat'l Ctr. For Injury Prevention & Control, Ctrs. for
Disease Control & Prevention, The National Intimate Partner and Sexual
Violence Survey: 2010 Summary Report 1 (2011), http://www.cdc.gov/
violenceprevention/pdf/nisvs_report2010-a.pdf [http://perma.
cc/FM4N-UPZW]; see also Loya, supra note 3, at 25-28.
\6\ See Loya, supra note 3, at 94; Cari Simon, On Top of Everything
Else, Sexual Assault Hurts the Survivors' Grades, Wash. Post: Post
Everything, (Aug. 6, 2014), https://www.washingtonpost.com/
posteverything/wp/2014/08/06/after-a-sexual-assault-survivors-gpas-
plummet-this-is-a-bigger-problem-than-you-think [https://perma.cc/2VXN-
BE75].
---------------------------------------------------------------------------
Courts have long recognized that sexual violence threatens
students' ability to learn and that, under title IX, schools receiving
Federal funding must take action to address violence and remedy its
effects.\7\ Unfortunately, as students have made clear time and time
again, too few schools live up to their legal (and moral) obligations
to do so.\8\
---------------------------------------------------------------------------
\7\ Gebser v. Lago Vista Indep. Sch. Dist. 524 U.S. 274, 292 (1998)
(tasking the Department of Education with ``administering and enforcing
Title IX, see 20 U.S.C. 1682'').
\8\ See U.S. Department of Education Releases List of Higher
Education Institutions with Open Title IX Sexual Violence
Investigations, U.S. Dep't Educ., (May 1, 2014), http://perma.cc/LH9D-
Q8FA; see also Tyler Kingkade, Harvard Forced Sexual Assault Victim to
Live By Abuser, Lawsuit Claims, Huffington Post (Feb. 17, 2016), http:/
/huff.to/1oqH9is; W. Bogdanich, A Star Player Accused, and a Flawed
Rape Investigation, N.Y. Times (Apr. 16, 2014), http://www.nytimes.com/
interactive/2014/04/16/sports/errors-in-inquiry-on-rape-allegations-
against-fsu-jameis-winston.html.
---------------------------------------------------------------------------
As current college students and recent graduates, we have witnessed
our peers suffer gender violence, only then to be discouraged by campus
administrators from reporting, denied counseling and academic
accommodations, and pressured to take time off--or withdraw--from
school. As a result, victims and their families have incurred steep
financial costs, some suffering hundreds of thousands of dollars in
lost tuition, lost scholarships, counseling and medical expenses, or
accumulated student debt. As one survivor reports:
I took a year off from classes following the assault and the title
IX investigation at the school. . . . I was not reimbursed for any
costs, although we did request partial reimbursement for tuition and
housing costs. . . . I lost a scholarship when I transferred schools,
and had to take an entire extra semester of courses at my new
institution. . . . It has easily cost me and my family an additional
$100,000 at least.\9\
---------------------------------------------------------------------------
\9\ See Dana Bolger, 125 Yale L.J. Gender Violence Costs: Schools'
Financial Obligations Under Title IX (forthcoming May 2016) (on file
with Know Your IX).
---------------------------------------------------------------------------
Still other survivors--particularly those who lack the resources to
obtain mental health services or to transfer schools--report
withdrawing from their classes or universities as a result.\10\ Others
remain in school, earning poorer grades, and in some cases, facing
consequent academic probation, suspension, or expulsion. When students
are forced to drop out of school in the wake of gender violence and
institutional neglect, they report suffering long-term penalties to
their earning potential well into the future.\11\ One survivor reports
that they dropped out of college and, nearly 3 years later, have yet to
return. They describe the impact:
---------------------------------------------------------------------------
\10\ Id.
\11\ According to the U.S. Census Bureau, students who leave
college before graduation can lose up to 30 percent of their future
earnings as year-round, full-time workers. See generally J.C. Day &
E.C. Newburger, The Big Payoff: Educational Attainment and Synthetic
Estimates of Work-Life Earnings, U.S. Census Bureau (2002).
I lost 2 years of income that I would've been in the job
market. I was planning to work in politics, earning $30-40,000
per year before going to get my Ph.D. . . . I have been
chronically homeless and housing unstable for 2 years now.\12\
---------------------------------------------------------------------------
\12\ See Bolger, supra note 9.
A crushing debt burden, coupled with lost earning potential, can
make it impossible for survivors who leave school to return.
This intolerable status quo--in which victims of gender violence
are still unable to access their right to education--demands a strong
Federal response, one that the Education Department--after decades of
administrative under-enforcement--has only just begun to take on.
II. Thanks to the important work of the Office for Civil Rights,
schools are finally beginning to take seriously their responsibilities
to students.
Courts have long affirmed the Department's authority--and
responsibility--to issue and enforce requirements that effectuate title
IX's nondiscrimination mandate.\13\ In accordance with this authority,
the Department published guidance in 1997 and 2001 that underwent
notice-and-comment. These guidance documents explained that a school is
liable under title IX if it fails to take ``immediate and appropriate
corrective action'' for sexually harassing conduct about which it knows
or should have known and which is ``sufficiently severe, persistent, or
pervasive to limit a student's ability to participate in or benefit
from an education program or activity.'' \14\ OCR named several kinds
of corrective action schools might employ in order to satisfy their
legal obligations under the statute: place the victim and accused
student in separate classes, alter housing arrangements, provide
tutoring, offer reimbursement for counseling, or make tuition
adjustments.
---------------------------------------------------------------------------
\13\ Gebser v. Lago Vista Indep. Sch. Dist. 524 U.S. 274, 292
(1998) (tasking the Department of Education with ``administering and
enforcing Title IX, see 20 U.S.C. 1682'').
\14\ Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034,
12,038-39 (Mar. 13, 1997), http://www.gpo.gov/fdsys/pkg/FR-1997-03-13/
pdf/97-6373.pdf [http://perma.cc/DP2Z-CC43].
---------------------------------------------------------------------------
Over the last 5 years, OCR has helpfully continued its efforts to
advise schools and students alike of institutions' specific
responsibilities under title IX to eliminate a hostile environment,
prevent its recurrence, and remedy its effects. The 2011 Dear Colleague
Letter, as well as the 2014 ``Questions and Answers,'' echoed OCR's
earlier guidance,\15\ providing clarification to students on just what
kinds of services and accommodations they might access in the wake of
violence, and to schools on the kinds of circumstances in which they
should take action to remedy violence's impacts. This collection of
guidance documents, coupled with student activism, has proven widely
transformative in allowing survivors en masse to learn their rights and
begin, at long last, to enjoy the educational benefits of the law's
enforcement. The guidance has similarly provided helpful clarity to
schools on OCR's construction of the law that it administers.
---------------------------------------------------------------------------
\15\ As the Supreme Court unanimously affirmed in March 2015, under
the Administrative Procedure Act agencies may issue such guidance
without notice-and-comment procedures--and frequently do. See generally
Perez v. Mortgage Bankers Ass'n, 575 U.S. (2015).
---------------------------------------------------------------------------
Indeed, in accordance with its duty to administer and enforce the
law, OCR has opened an unprecedented number of investigations into
institutions of higher education that have denied students the
accommodations they need, such as academic accommodations and mental
health services. OCR has also investigated institutions that have
placed uniquely onerous and inequitable challenges, like higher
evidentiary burdens, in the way of rape victims who pursue disciplinary
charges against their assailants (to which victims of other student
conduct code violations, like theft and non-sexual physical assault,
are not subject).\16\
---------------------------------------------------------------------------
\16\ Michelle J. Anderson, The Legacy of the Prompt Complaint
Requirement, Corroboration Requirement, and Cautionary Instructions on
Campus Sexual Assault, 84 B.U. L. Rev. 945 (2004).
---------------------------------------------------------------------------
Displeased with the results of OCR's recent enforcement efforts,
some have called into question OCR's authority to issue clarifying
guidance or interpretive rules like those contained in the 2011 Dear
Colleague Letter. But the law is clear: Just last year in Perez v.
Mortgage Bankers Association, the Supreme Court confirmed that
interpretive rules--``issued by an agency to advise the public of the
agency's construction of the statutes and rules which it administers''
\17\--do not require notice and comment.\18\ These are precisely the
sort of interpretative rules OCR has set out in its recent guidance.
Further, given that other agencies have issued interpretive rules and
other guidance of this sort \19\ with relatively little objection, it
is striking that critics have specially singled out OCR's action on
this particular issue for searching scrutiny.
---------------------------------------------------------------------------
\17\ Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995).
\18\ See generally Perez v. Mortgage Bankers Ass'n, 575 U.S. (2015)
(``Because an agency is not required to use notice-and-comment
procedures to issue an initial interpretive rule, it is also not
required to use those procedures to amend or repeal that rule''); see
also Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995).
\19\ See U.S. Government Accountability Office, GAO-13-21, Federal
Rulemaking: Agencies Could Take Additional Steps to Respond to Public
Comments 8 (2012), http://www.gao.gov/assets/660/651052.pdf (``Agencies
did not publish a notice of proposed rulemaking (NPRM)[ . . . ] for
about 35 percent of major rules and about 44 percent of nonmajor rules
published during 2003 through 2010.'').
---------------------------------------------------------------------------
______
Over four decades since the passage of title IX--during which time
inequality in education has remained firmly entrenched--we are finally
beginning to see promising steps toward change. The Education
Department has courageously led the charge, providing clarity and
transparency to its construction of the law it is tasked with
enforcing. It would be deeply inadvisable to condemn the Department's
work to clarify the law, when schools have abdicated their
responsibility to ensure educational equity for so long, with such
devastating consequences for student survivors.
In sum, without the Federal Government's engaged administration and
enforcement of title IX, gender violence will, without a doubt,
continue to cost students their educations and their futures.
If you have any questions, please contact Dana Bolger, Executive
Director of Know Your IX, at [email protected]
Sincerely,
Better Sex Talk; Brandeis Students Against Sexual Violence; Bruin
Consent Coalition, formerly known as ``7000 in Solidarity: A Campaign
Against Sexual Assault''; Coalition Against Sexual Violence (Columbia
University); Columbia Law Women's Association; The Feminist Society at
NYU; Georgetown Take Back the Night; Harvard Law School HALT; Iowa
Student Power Network; Know Your IX; NYU Law Women; Our Harvard Can Do
Better; #PaceUEndRape; Rebels Against Sexual Assault (University of
Mississippi); Sexual Assault Network for Grads; Stand Up! (Brown
University); Student Association for Gender Equality (Morehead State
University); Student Government of Iowa State University; Students for
Sexual Respect at NYU; Title IX at Northwestern; United States Student
Association; Women for Change (University of Hartford); Womyn's
Awareness Center (Gustavus Adolphus College); Yale Journal of Law &
Feminism; Yale Law Students for Reproductive Justice; The 2015-2016
Board of Yale Law Women; The York College Women's Center.
______
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: I write in my
individual capacity as a legal scholar and academic to support the U.S.
Department of Education Office for Civil Rights' enforcement of Title
IX of the Educational Amendments of 1972 in cases involving sexual
harassment, sexual violence, and bullying. As a law professor and 15-
year university administrator, I have published, to date, 10 academic
articles, essays, or book chapters on sexual harassment, sexual
violence, and bullying in education, especially on college campuses,
including five in peer-reviewed journals or edited volumes. I have also
written an amicus brief at the request of a university and State
attorney general's office in a State supreme court case involving
sexual violence, served as a Negotiator on the Violence Against Women
Act (VAWA) Negotiated Rulemaking that amended the Department of
Education's regulations under the Clery Act, and consulted with the
White House Task Force to Protect Students from Sexual Assault. My law
school courses have included legislative and administrative law and a
course that I am presently teaching entitled ``Sexual Violence & the
Law.'' My most recent publication on this topic is an essay just
published in the Yale Law Journal Forum (http://www.yalelaw
journal.org/forum/for-the-title-ix-civil-rights-movement-
congratulations-and-cautions).
Because I have, to my knowledge, conducted a significant majority
of the published legal research and scholarship on title IX and gender-
based violence on college campuses, I can specifically confirm the
accuracy and quality the February 17, 2016 letter sent by Assistant
Secretary for Civil Rights, Catherine Lhamon, to Senator Lankford (made
available by The Chronicle of Higher Education at http://chronicle.com/
items/biz/pdf/DEPT.%20of%20EDUCATION%20RESPONSE%20TO
%20LANKFORD%20LETTER%202-17-16.pdf). This excellent letter gives a
clear, research- and precedent-based explanation of the authority of
Office for Civil Rights (OCR) to issue guidance in the form of Dear
Colleague Letters and similar guidance documents, one that requires no
repeat or additional elucidation.
However, I do want to amplify one part of Asst. Secretary Lhamon's
letter based not only on black-letter law but also on the realities for
practitioners and administrators on the ground in our Nation's
educational institutions. The Asst. Secretary explains that her
office's guidance documents are designed to ``advise the public of
[OCR's] construction of the statutes and regulations it administers and
enforces,'' rather than ``requiring recipients and members of the
public to discern for themselves solely from the text of the
regulations what title IX requires as applied to particular facts and
what actions would result in OCR initiating proceedings to terminate
Federal financial assistance . . .'' As a professional who has spent
nearly 20 years as an administrator or in full-time teaching positions
at four different universities and a major higher education
professional association, I can say that this guidance is both deeply
needed and deeply appreciated by those trying to end the epidemic of
sexual harassment and gender-based violence occurring on our campuses.
I do not draw this sense of necessity or appreciation for OCR's
guidance only from my own experience. In addition to the inevitably
large professional network that one builds during a 20-year career, I
served in 2014-15 as Associate Vice President for Equity, Inclusion &
Violence Prevention for NASPA, the Nation's largest association of
student affairs professionals. With 15,000 members ranging from Vice
Presidents of Student Affairs to Residence Hall directors, the vast
majority of NASPA members are likely to be first responders in cases
involving sexual or other forms of gender-based violence, even graduate
and undergraduate student members, who are often in live-in, 24-hour
on-call positions like Resident Assistantships. NASPA hired me in large
part because it had heard quite clearly from members that they needed a
lot more training and education to meet their title IX responsibilities
to protect their students' rights to equal educational opportunity.
Because the association understood how acute members' needs and desires
to improve their abilities to respond to this discriminatory violence
were, NASPA approached me to come on board as its subject matter expert
on title IX and other such civil rights protections. After I moved on
to the faculty post I now hold, NASPA made my position permanent and
hired Jill Dunlap, who also served in 2014 as a Negotiator on the VAWA
Negotiated Rulemaking.
In the less than a year that I served as Associate Vice President
at NASPA, I was constantly reminded of how hungry NASPA members were
for guidance on how to improve their understanding and skills for
meeting both their moral and legal obligations regarding this violence.
I produced a practice brief that was so in demand that members
exhausted the many boxes of printed copies in less than 24 hours at the
NASPA annual conference. I was asked to develop a webinar series and to
keynote, moderate or otherwise lead well-attended presentations on
campus gender-based violence at numerous NASPA conferences, including
five major programs to packed audiences in only 3 days at the annual
conference. During this time, NASPA also worked with a coalition of 18
other higher education professional associations and victim services
and advocacy organizations to produce an open letter regarding pending
State bills on campus sexual violence (http://www.naspa.org/images/
uploads/main/Joint_omnibus_bill_statement_
letterhead.pdf). That coalition represented tens of thousands of campus
professionals, including in student affairs, student conduct, and
campus police, all working together, with victim services
organizations, to oppose State legislative interference with title IX's
mandates.
While at NASPA, I was in no way surprised by this frenetic activity
or the acute needs for title IX guidance that it indicated existed
among higher education professionals. Indeed, prior to joining the
association's staff, I had seen for several years the numbers of
questions and requests for guidance coming from administrators and some
faculty regarding how to improve their response and prevention efforts
around title IX. Indeed, when OCR released its guidance document
addressing frequently asked questions around title IX and sexual
violence (http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-
title-ix.pdf), it was nearly three times the length of the 2011 Dear
Colleague Letter, showing how much guidance the higher education
community asked for--even demanded--from OCR.
In light of these constant requests and sincere needs for guidance,
OCR should in fact be commended for being so responsive to higher
education institutions and the professionals who are primarily
responsible for ensuring that their institutions comply with title IX.
While not all in the higher education community will agree with the way
OCR engages in enforcement, whether one agrees with the content of the
guidance is separate both from OCR's power to engage in enforcement and
its power to publish guidance that explains how OCR enforces title IX
so that colleges and universities can plan ahead and avoid being
investigated in the first place. Asst. Secretary Lhamon's letter
clearly and abundantly establishes both of these powers.
In addition, however, Asst. Secretary Lhamon's letter also clearly
points out the solid legal basis, in notice and comment-based guidance
documents, for specific points in OCR's 2010 Dear Colleague Letter.
Similarly, Asst. Secretary Lhamon restates the strong legal
justification for insisting that schools use a preponderance of the
evidence to investigate and resolve cases involving civil rights
violations, including cases involving sexual or similar forms of
gender-based violence. I have provided several additional reasons for
why the preponderance standard is the only standard acceptable for such
cases, as with all cases governed by civil rights laws and standards,
in the Yale Law Journal Forum essay mentioned earlier in this letter.
On these points regarding the content of OCR's guidance, it is also
important to note that, as Asst. Secretary Lhamon makes clear, the
guidance is descriptive of what OCR is likely to actually do when
exercising its enforcement power and investigating a complaint. In this
respect, and like with OCR's many helpful responses to the higher
education community's requests for guidance on how to handle sexual
violence or other severe forms of sexual harassment, OCR's guidance has
done the higher education community a favor, and a favor that has a
high likelihood of saving educational institutions a lot of money. That
is, if an institution follows OCR's guidance, it is much more likely to
avoid what is potentially very expensive liability. My research shows
consistently that violating a student's title IX rights is quite
expensive and on average significantly more expensive than disciplining
a student who has been found responsible for sexually assaulting a
classmate, even in the very few such cases where a court has found
evidence of an administrative due process violation.\1\
---------------------------------------------------------------------------
\1\ Note that under U.S. Supreme Court precedent, school
disciplinary proceedings are not governed by rules of criminal due
process. See generally Nancy Chi Cantalupo, ``Decriminalizing'' Campus
Institutional Responses to Peer Sexual Violence, 38 J.C. & U.L. 481,
513-17 (2012).
---------------------------------------------------------------------------
I summarized my pre-2012 research on this point for Time magazine
at http://time.com/99697/campus-sexual-assault-nancy-chi-cantalupo/,
and subsequent years have only added to the number of publicly
disclosed title IX settlements in the six-and seven-figures.\2\ Other
research confirms that violating title IX is getting more expensive for
schools, not less. For instance, a report by United Educators, a major
insurer of educational institutions, on claims for campus sexual
assault cases from 2011-13 shows that schools paid $17 million in costs
``defending and resolving sexual assault claims.'' \3\ Of these costs,
84 percent, or $14.3 million, were spent on ``victim-driven
litigation.'' \4\ This is in contrast to a similar report by United
Educators on similar claims filed from 2005-10, where schools paid $36
million in costs related to such claims, with a little over $10 million
going to claims by ``accusers.'' \5\ Thus, in a little over half the
time of the earlier 5-year study, institutions' costs based on claims
filed by victims alleging title IX and similar violations have
increased by about 43 percent.
---------------------------------------------------------------------------
\2\ See, e.g., Tatianna Schlossberg, UConn to pay $1.3 Million to
End Suit on Rape Cases, N.Y. TIMES (July 18, 2014), http://
www.nytimes.com/2014/07/19/nyregion/uconn-to-pay-1-3-million-to-end-
suit-on-rape-cases.html_r=0.
\3\ See United Educators, Confronting Campus Sexual Assault: An
Examination of Higher Education Claims 14 (2015), http://www.bgsu.edu/
content/dam/BGSU/human-resources/documents/training/lawroom/
Sexual_assault_claim_study.pdf.
\4\ Id.
\5\ See United Educators, Student Sexual Assault: Weathering the
Perfect Storm 1-2 (2011), https://www.edurisksolutions.org/templates/
template-article.aspx?id=379&pageid=136.
---------------------------------------------------------------------------
In light of these numbers, it is not only a reality, as I have
detailed above, that higher education professionals have wanted
guidance from OCR, but also completely logical, rational, and
reasonable that an institution of higher education would want more, not
less, guidance about how to protect their students' title IX rights. I
certainly know that I wanted as much guidance as OCR had time to
provide, when I was a campus administrator, and I know the many
excellent colleagues with whom I worked during those years, as well as
the many more such colleagues I met at NASPA, would agree. Indeed, at
this moment in time, it would be quite unreasonable for any institution
of higher education not to want OCR to provide guidance, to read that
guidance closely when it is issued, and to follow its advice so the
school can get out ahead of this discrimination problem and have the
structures and staff in place to handle cases when they inevitably
arise and do so in a way that protects the rights of all students
involved. OCR has devoted hundreds of pages of guidance to schools to
help them with these tasks, and both logic and evidence indicate that
the higher education profession as a whole appreciates this guidance
for both liability- and morality-based reasons.
For all of these legal and practical reasons, I write in support,
commendation, and thanks to the U.S. Department of Education Office for
Civil Rights for issuing their guidance documents. I also thank you and
the other members of the Senate Committee on Health, Education, Labor,
and Pensions for their attention to these issues.
Sincerely,
Nancy Chi Cantalupo,
Assistant Professor of Law,
Barry University
Dwayne O. Andreas School of Law.
______
National Women's Law Center,
Washington, DC 20036,
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
525 Dirksen Senate Office Building,
Washington, DC 20510.
Re: In Support of Title IX, the Clery Act & Regulations that Protect
Students from Sexual Harassment and Gender-Based Violence in
Educational Programs
Dear Chairman Alexander and Ranking Member Murray: In advance of
the confirmation hearing for Education Secretary nominee Dr. John B.
King, the National Women's Law Center writes to recognize the core
responsibility of the U.S. Department of Education to enforce our
Nation's civil rights education laws, including title IX and the Clery
Act. We support regulations and guidance issued by the Department to
inform institutions of their obligations under these laws and applaud
the Department for its enforcement of them to ensure that sexual
harassment and sexual violence does not interfere with a student's
right to an educational environment free from sex discrimination.
Because this work will be key to helping schools create safe spaces for
all our Nation's students, we write with the following recommendations
to remind schools of their civil rights obligations.
I. Enforcement of Title IX and the Clery Act are Necessary to
Create Safe Schools & Reduce Sexual Harassment, including Sexual
Violence.
The Clery Act \1\ is a consumer protection law that requires
colleges and universities to publicly report campus crime statistics on
an annual basis so that current and prospective students can evaluate
the safety of an institution of higher education. Title IX of the
Education Amendments of 1972 \2\ is a civil rights law that prohibits
discrimination in federally funded education programs based on sex,
which includes sexual harassment and violence.\3\ Although both laws
have different goals, they work in conjunction to promote a school
climate that is a safe and conducive learning environment for all
students.
---------------------------------------------------------------------------
\1\ 20 U.S.C. 1092.
\2\ 20 U.S.C. 1681.
\3\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).
---------------------------------------------------------------------------
Sexual harassment in schools is a serious problem with devastating
effects for students. It takes many forms, from ``unwelcome sexual
advances'' and ``requests for sexual favors'' to ``other verbal,
nonverbal, or physical conduct of a sexual nature.'' \4\ In a national
survey of nearly 2,000 seventh- through 12th-graders conducted in 2011,
nearly half of all students surveyed reported experiencing some form of
sexual harassment in the 2010-11 school year.\5\ Unwanted sexual
comments, jokes, and gestures were the most reported forms of sexual
harassment, with 33 percent of students saying that they encountered
this kind of conduct at least once in the 2010-11 school year.\6\
However, 8 percent of all students also reported being touched in an
unwelcome way in the previous school year and 7 percent reported having
someone flash or expose themselves in front of them.\7\ Additionally,
public schools recorded 600 incidents of rape or attempted rape and
3,600 incidents of sexual battery not involving rape in 2009-10, the
most recent year for which data is available.\8\
---------------------------------------------------------------------------
\4\ U.S. Dep't of Educ., Office For Civil Rights, Revised Sexual
Harassment Guidance: Harassment of Students by School Employees, Other
Students, or Third Parties, at 2 (2001), available at http://
www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
\5\ AM. Ass'n of Univ. Women, Crossing the Line: Sexual Harassment
at School 2 (2011), available at http://www.aauw.org/files/2013/02/
Crossing-the-Line-Sexual-Harassment-at-School.pdf.
\6\ Id. at 12.
\7\ Id.
\8\ Simone Robers et al., Indicators of School Crime and Safety:
2013, at 117 (2014), available at http://nces.ed.gov/pubs2014/
2014042.pdf.
---------------------------------------------------------------------------
The emotional and physical effects of sexual harassment and
violence can be devastating for students. Victims of such conduct often
find it difficult to study, reduce participation in school or school
activities, and/or avoid school altogether.\9\ Sadly, some students
have even committed suicide in the face of sexual harassment and
violence. One example is Audrie Pott, a 5-year old who took her own
life in 2013 after an alleged sexual assault and sexual bullying.\10\
---------------------------------------------------------------------------
\9\ See AM. Ass'n of Univ. Women, supra note 5 at 3.
\10\ Christina Sterbenz, Heartbreaking Details Revealed About 15-
Year-Old Who Killed Herself After Alleged Sexual Assault, Bus. Insider
(Sept. 20, 2013, 2:30 PM), available at http://www.businessinsider.com/
details-on-audrie-potts-suicide-2013-9.
---------------------------------------------------------------------------
There have been widespread reports of sexual harassment and
violence at colleges and universities. According to several reports,
one in five women and one in 20 men are sexually assaulted in
college.\11\ And before the Department of Education Office for Civil
Rights (OCR) issued guidance on title IX and sexual violence,
universities were not doing enough to address the prevalence of sexual
assault on campus.
---------------------------------------------------------------------------
\11\ E.g., Nick Anderson & Scott Clement, 1 in 5 college women say
they were violated, Wash. Post (June 12, 2015), http://
www.washingtonpost.com/sf/local/2015/06/12/1-in-5-women-say-they-were-
violated/; C.P. Krebs et al., College Women's Experiences with
Physically Forced, Alcohol- or Other Drug-Enabled, and Drug-Facilitated
Sexual Assault Before and Since Entering College, 57 J. AM. C. HEALTH
639 (2009).
---------------------------------------------------------------------------
For example, in 2014 the University of Connecticut settled a
lawsuit with five students who claimed the school failed to handle
their complaints of sexual violence properly.\12\ In 2013, Occidental
College settled a suit with at least 37 students alleging similar
claims.\13\ That same year, Yale University refused to expel six
students it found guilty of ``nonconsensual sex,'' and released a semi-
annual report on sexual misconduct revealing that the university
provided light punishments, such as temporary suspensions, for such
actions.\14\ In 2012, a U.S.C. student reported a rape to her
university and even played authorities a tape of her rapist admitting
to the assault, but they dismissed her case for lack of evidence.\15\
And the Department of Education is still investigating a 2013 complaint
from Swarthmore students alleging that the college violated the Clery
Act by failing to report sexual assaults on campus.\16\ Students said
that resident advisors failed to submit formal reports about their
assaults and administrators declined to report conduct like
stalking.\17\
---------------------------------------------------------------------------
\12\ Jake New, Major Sexual Assault Settlement, Inside Higher Ed
(July 21, 2014), https://www.insidehighered.com/news/2014/07/21/u-
connecticut-pay-13-million-settle-sexual-assault-lawsuit.
\13\ Tyler Kingkade, Occidental College Settles Lawsuit with Sexual
Assault Victims, Huffington Post (Sept. 19, 2013), http://
www.huffingtonpost.com/2013/09/19/occidental-lawsuit-sexual-
assault_n_3950830.html.
\14\ Stacy Teicher Khadaroo, Sexual Assault on Campus: Yale Tries
To Clarify Consent, Christian Sci. Monitor (Sept. 12, 2013), http://
www.csmonitor.com/USA/Education/2013/0912/Sexual-assault-on-campus-
Yale-tries-to-clarify-consent.
\15\ Claire Groden, Campus Rape Victims Find a Voice, Time (Aug.
08, 2013), available at http://nation.time.com/2013/08/08/campus-rape-
victims-find-a-voice/?iid=tsmodule.
\16\ Joe Mariani, Title IX changes to affect campus procedures,
Swarthmore Phoenix (Sept. 24, 2015), http://swarthmorephoenix.com/2015/
09/24/title-ix-changes-to-affect-campus-procedures/; Max Nesterak,
Clery Complainants To File Title IX Complaints, Join National Movement
Against Sexual Assault, Swarthmore Coll. Daily Gazette (Apr. 19, 2013)
http://daily.swarthmore.edu/2013/04/19/clery-complainants-join-
national--movement-against-sexual-assault-to-file-title-ix-complaints/.
\17\ Emma Jacobs, Swarthmore Students File Title IX Complaint over
Alleged Inaction on Sexual Assault, Newsworks (Apr. 26, 2013), http://
www.newsworks.org/index.php/local/item/54084.
---------------------------------------------------------------------------
Because of growing concerns about institutions' failure to
appropriately address sexual violence cases, student activist groups
have led national campaigns to educate students about their title IX
rights.\18\ These groups, which include both survivors of sexual
violence and allies, are responding to growing reports of sexual
violence on campuses and sharing what they learned from their
experiences.\19\ As a result of their advocacy, more survivors have
come forward and filed complaints with OCR--with the Department
investigating approximately 130 colleges and 40 school districts for
title IX violations related to sexual assault, as of July 2015.\20\
---------------------------------------------------------------------------
\18\ See Know Your IX, http://knowyourix.org/ (last visited Sept.
26, 2013).
\19\ About KYIX, Know Your IX (last visited Sept. 26, 2013), http:/
/knowyourix.org/about-ky9/.
\20\ Morgan Baskin, Dept. of Ed: UVA fostered ``hostile
environment'' for sexual assault survivors, USA Today (Sept. 21, 2015),
http://college.usatoday.com/2015/09/21/dept-of-ed-uva-fostered-hostile-
environment-for-sexual-assault-survivors/; Tyler Kingkade, 124
Colleges, 40 School Districts Under Investigation For Handling Of
Sexual Assault, Huffington Post (July 24, 2015), http://
www.huffingtonpost.com/entry/schools-investigation-sexual-
assault_us_55b19b
43e4b0074ba5a40b77.
---------------------------------------------------------------------------
The stakes could not be higher for students at all levels of
education; reports of assaults and schools' failure to address them are
widespread. Thus, the role of OCR in ensuring that schools prevent and
address sexual harassment and violence is critical.
II. OCR's Guidance and Resolution Agreements Are Necessary to Help
Address the Pervasive Problem of Sexual Harassment and Violence in
Schools.
OCR issues guidance documents--including interpretive rules,
general statements of policy, and rules of agency organization,
procedure, or practice--to further assist schools in understanding what
policies and practices will lead OCR to initiate proceedings to
terminate Federal financial assistance under existing regulations under
title IX and other civil rights laws. Last year, the Supreme Court
unanimously confirmed that the Administrative Procedure Act allows
agencies to issue such guidance without notice-and-comment procedures,
because such guidance is expressly exempt from these requirements.\21\
---------------------------------------------------------------------------
\21\ Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015); 5
U.S.C. 553(b)(3)(A).
---------------------------------------------------------------------------
OCR's guidance and resolution agreements addressing sexual
harassment and violence are essential tools that outline schools'
responsibilities to prevent harassment and help combat this serious
problem plaguing our Nation's schools. The 2010 Dear Colleague Letter
on harassment and bullying provided examples of conduct that can
constitute ``sexual harassment'' in federally funded educational
programs.\22\ The 2011 Dear Colleague Letter on Sexual Violence \23\
emphasized prevention, specific procedures, and remedies that schools
should use in sexual violence cases, including the preponderance of the
evidence standard of proof for sexual harassment investigations. In
2014, the Department also released a Questions and Answers document
that provided technical assistance to schools regarding their
obligations under title IX and highlighted proactive approaches schools
can take to prevent and remedy the prevalence of sexual violence on
campus.\24\ The 2010 and 2011 Dear Colleague Letters and the 2014
Questions and Answers document allowed schools to receive guidance in a
timely fashion and implement policies quickly. And OCR resolution
letters with individual schools can model holistic approaches for
ensuring that sexual violence reports are being handled properly by all
parts of a school system. This is precisely the type of enforcement
that can prompt reforms to reduce the prevalence of sexual violence in
educational institutions.
---------------------------------------------------------------------------
\22\ Russlyn Ali, Dear Colleague Letter, U.S. Dep't of Educ. Office
For Civil Rights (Oct. 26, 2010) [hereinafter 2010 Dear Colleague
Letter], http://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201010.pdf.
\23\ Russlyn Ali, Dear Colleague Letter, U.S. Dep't of Educ. Office
For Civil Rights (Apr. 4, 2011) [hereinafter 2011 Dear Colleague
Letter], http://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf.
\24\ U.S. Dep't of Educ. Office For Civil Rights, Questions and
Answers on Title IX and Sexual Violence (2014), http://www2.ed.gov/
about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
---------------------------------------------------------------------------
Despite the utility of OCR guidance, some suggest that OCR erred in
not going through the Notice and Comment process before issuing its
2010 and 2011 Dear Colleague. But there was no requirement that OCR do
so, as these guidance documents merely provided clarification of OCR's
2001 Dear Colleague letter \25\ on sexual harassment that was issued
after the Supreme Court's decision in Davis v. Monroe County Board of
Education,\26\ and the 2001 document did go through the Notice and
Comment process. Requiring notice and comment on similar clarification
documents would be unnecessary and only create further confusion given
that the guidance documents clarified existing obligations. In the
meantime, survivors and victims of discrimination would be deprived of
their educational rights, and institutions would hide behind
bureaucracy to delay complying with their obligations under title IX.
The Department's ability to enforce our Nation's civil rights laws
should not be obstructed--nor should its ability to offer clarifying
guidance and technical assistance in a timely manner.
---------------------------------------------------------------------------
\25\ See U.S. Dep't of Educ., Office For Civil Rights, Revised
Sexual Harassment Guidance: Harassment of Students by School Employees,
Other Students, or Third Parties (2001) [hereinafter 2001 Title IX
Guidance], available at http://www2.ed.gov/about/offices/list/ocr/docs/
shguide.pdf.
\26\ 526 U.S. 629 (1999).
III. Title IX & Clery Should Set the Standard for Disciplinary
---------------------------------------------------------------------------
Hearings Because Both Laws Require Fairness to Both Parties.
To appropriately respond to sexual and gender-based violence on
campus, universities must create and maintain policies that are fair
for both the complainant/survivor and the respondent/accused. Title
IX's ban on sex discrimination in education requires that all parties
be treated fairly in the adjudication process, which means, for
example, that both complainant and respondent must have the opportunity
to present their positions to an impartial investigator who employs an
evidentiary standard that distributes the burden of proof equitably.
For these reasons, due process provisions that mirror those
guaranteed to defendants in criminal justice proceedings--such as
providing respondents exclusive appeal rights or requiring that
universities apply a higher evidentiary standard than the preponderance
of the evidence standard--are inappropriate in school sexual misconduct
proceedings. Implementing such measures would give respondents/the
accused more procedural protections than complainants/survivors, which
would undermine title IX's goal to promote equality in educational
programs.
Both Title IX and Clery contain a number of baseline standards for
institutional processes that colleges can increase to fit the needs of
their campus. For example, in addition to notice and an opportunity to
be heard, title IX requires that grievance procedures be both prompt
and equitable, that investigations be adequate, reliable, and impartial
and that written notice informing both parties of the outcome of the
investigation be provided.\27\ Title IX also allows schools to provide
the right to appeal a determination, as long as it provides this right
equally for both parties.\28\ The same goes for the opportunity to
present witnesses or other evidence during the investigation or hearing
process.\29\ The Clery Act also sets forth minimum standards for school
discipline procedures, including the right to have others present
during disciplinary proceedings/meetings, the right to an advisor of
their choice, and a requirement that both parties receive the outcome
of a proceeding in writing at the same time.\30\ Because Title IX and
Clery contain procedural protections that promote fundamental fairness
in college proceedings while ensuring that both complainant and
respondent have equal protections, these laws--not the criminal justice
system--should provide the framework for any policies that seek to
enhance due process rights for survivor/complainants and accused/
respondents.
---------------------------------------------------------------------------
\27\ 2001 Title IX Guidance supra note 25, at 19-20.
\28\ 2011 Dear Colleague Letter supra note 23, at 12.
\29\ Id. at 11.
\30\ 20 U.S.C. 1092 (f)(8)(B)(iv).
---------------------------------------------------------------------------
______
The Department of Education's guidance on and enforcement of title
IX and the Clery Act have been vital in the effort to curb the epidemic
of sexual harassment and violence in our Nation's schools. This
critical work must continue if the promise of these laws is to be
fulfilled. Thank you for your consideration. If you have any questions,
please contact Neena Chaudhry at [email protected], Adaku Onyeka-
Crawford at [email protected], or Fatima Goss Graves at
[email protected] of the National Women's Law Center or 202.588.5180.
Sincerely,
Fatima Goss Graves,
Senior Vice President for Program.
Neena Chaudhry,
Senior Counsel & Director of Education.
Adaku Onyeka-Crawford,
Counsel.
______
Letters of Support
National Center for Special Education
in Charter Schools (NCSECS),
New York, NY 10170,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: The National
Center for Special Education in Charter Schools (NCSECS) is dedicated
to ensuring that students with disabilities have equal access to
charter schools and that public charter schools are designed and
operated to enable all students to succeed. We write today to thank you
for your consideration of President Obama's nomination of Dr. John King
as the Secretary of Education.
Dr. King is an excellent choice to serve as the next Secretary. His
track record leading up to his current position as Acting Secretary
shows a deep commitment to high standards and his own impatience with
entrenched systems that do not serve children well. He demonstrated
these traits as the founder of a high performing charter school in
Massachusetts, as a leader in a school management organization creating
strong new charter schools in several States, and most recently, in his
role as New York's Education Commissioner. Dr. King has demonstrated
that he sees the public school landscape as a broad one, strengthened
by strong districts and a thriving charter sector.
Dr. King has recently met with civil rights and disability
organizations where he spoke passionately and firmly about the need to
ensure every student has equal access to a quality education in a high
quality school. Given the work ahead--to implement The Every Student
Succeeds Act (ESSA) and its many important provisions that impact all
public title I schools, including charter schools--we believe it is
imperative that Dr. King be formally confirmed by the Senate as soon as
possible.
NCSECS worked intently with the civil rights community on ESSA and
has high hopes the updated law will successfully foster students
achievement and equity. NCSECS is deeply interested in the
implementation of the new law because charter schools are public
schools and should be explicitly included in State title I planning.
Charter schools must also be open and accessible to all students on par
with traditional public schools. Therefore, Dr. King's nomination will
help assure States have the appropriate guidance they need to begin the
transition to implement the ESSA.
Thank you for the opportunity to recommend Dr. King for this
important nomination.
Sincerely,
Lauren Morando Rhim, Ph.D.,
Executive Director.
______
National Center for Learning Disabilities (NCLD),
New York, NY 10013,
February 18, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: The National
Center for Learning Disabilities (NCLD), which represents the 1 in 5
individuals with learning and attention issues, writes in support of
the nomination of John King to Secretary of the U.S. Department of
Education.
Dr. King is well qualified to serve as Secretary of the U.S.
Department of Education as he has been a champion for students
throughout his career. His experience includes serving as a teacher,
principal, a charter school founder, and a leader of schools and
schools systems. As commissioner of education for the State of New
York, Dr. King oversaw 3.1 million elementary and secondary school
students and served as president of the University of the State of New
York. In this role, he deepened collaboration between the State's
preschool through grade 12 schools and its institutions of higher
education, strengthening educator preparation. During his tenure, the
State's ambitious initiatives included investing in high-quality early
learning; raising standards; supporting educators through professional
development, access to instructional resources, and innovative career
ladder models; expanding career and technical education in high-demand
fields; and increasing opportunities for students in the highest-need
communities.
Dr. King first joined the U.S. Department of Education in January
2015 as Principal Senior Advisor. In that role, Dr. King carried out
the duties of the Deputy Secretary, overseeing all preschool through
grade 12 education policies and programs. Dr. King focused on
increasing equity, improving outcomes for all students, and closing
persistent achievement gaps. Dr. King's emphasis on improving outcomes
and his willingness to collaborate indicate his dedication to
educational equity and excellence for all students. The ongoing work
that Dr. King has led at the U.S. Department of Education is essential
and must continue.
NCLD supports the swift confirmation of John King as Secretary of
the U.S. Department of Education. We urge you to confirm his
appointment as soon as possible so that students with learning and
attention issues continue to be supported in their educational success.
Sincerely,
James Wendorf,
Executive Director.
Lindsay Jones,
Vice President and Chief Advocacy Officer.
______
Association of University Centers on Disabilities
(AUCD),
Silver Spring, MD 20910,
February 22, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
Association of University Centers on Disabilities, I write in strong
support of the nomination of John King for Secretary of the U.S.
Department of Education.
AUCD promotes and supports a national network of interdisciplinary
centers on disabilities. Our members represent every U.S. State and
territory and include 67 University Centers for Excellence in
Developmental Disabilities (UCEDDs), 45 Interdisciplinary Leadership
Education in Neurodevelopmental and Related Disabilities (LEND)
Programs and 15 Intellectual and Developmental Disabilities Research
Centers (DDRCs).
Having earned a Bachelor of Arts in Government from Harvard
University, a Master of Arts in the teaching of social studies from
Columbia University's Teachers College, a J.D. from Yale Law School,
and a Doctor of Education degree in educational administrative practice
from Columbia University's Teachers College, Dr. King is well qualified
to serve as Secretary of the U.S. Department of Education. Dr. King
also brings to his own personal experience leading urban public schools
that are closing the achievement gap and preparing students to enter,
succeed in, and graduate from college.
Before becoming Acting Secretary, Dr. King had served since January
2015 at the Department as Principal Senior Advisor. In that role, Dr.
King carried out the duties of the Deputy Secretary, overseeing all
preschool through 12th-grade education policies, programs and strategic
initiatives, as well as the operations of the Department. Dr. King
carried out this work with a focus on increasing equity, improving
educational outcomes for all students, including those with
developmental and other disabilities, and closing achievement gaps
through implementation of key administration priorities in areas
including early learning, rigorous academic standards, accessible
curricula, universal design for learning, and the inclusion of all
groups of students in accountability systems to help schools improve
their outcomes.
AUCD strongly supports the confirmation of John King as Secretary
of the U.S. Department of Education and we urge you to confirm his
appointment as soon as possible so that students with disabilities
continue to be supported in their educational success.
Sincerely,
Andy Imparato,
Executive Director.
______
Chiefs for Change,
Washington, DC 20004,
February 22, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of
Chiefs for Change, I am writing in strong support of Dr. John King's
nomination to serve as Secretary of Education.
Dr. King joined the Department as Principal Senior Advisor last
year and has been overseeing all preschool-through-12th-grade education
policies, programs and strategic initiatives, as well as the operations
of the Department.
Prior to his work at the Department, Dr. King served as
commissioner of education for the State of New York. In that role, he
served as chief executive officer of the State Education Department and
as president of the University of the State of New York, overseeing the
State's elementary and secondary schools (serving 3.1 million
students), public, independent and proprietary colleges and
universities, libraries, museums, and numerous other educational
institutions.
As commissioner of education, Dr. King pursued ambitious
educational reforms to increase equity; raise standards for teaching
and learning; support teachers and school leaders through strong
professional development, access to rich instructional resources, and
innovative educator career ladder models; expand career and technical
education in high-demand fields; and increase educational opportunity
for students in the highest-need communities.
As the Department of Education continues work on the implementation
process for the Every Student Succeeds Act, Chiefs for Change is
confident that Dr. King's focus on preparing every child for success
will lead to better educational outcomes, help to close achievement
gaps among students; and better prepare students for college or a
career. Importantly, Dr. King brings to this position the unique
expertise and dedication that comes from a life-long career in
education, beginning first as a teacher and middle- and high-school
principal.
As a nonprofit network of diverse State and district education
Chiefs dedicated to preparing all students for today's world and
tomorrow's, Chiefs for Change strongly endorses Dr. King for Secretary
of Education and looks forward to working with the Department of
Education to support innovative policies and practices that improve
outcomes and create educational equity for all students. Please don't
hesitate to contact me if you have any questions or if there is
anything that Chiefs for Change could do to assist with Dr. King's
nomination for Secretary of Education.
Sincerely,
Mike Magee, CEO.
______
National Association of State Directors
of Special Education, Inc. (NASDSE),
Alexandria, VA 22314,
February 23, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Senator Alexander and Senator Murray: On behalf of the
National Association of State Directors of Special Education (NASDSE),
the national nonprofit organization that represents the State directors
of special education in the States, the District of Columbia, the
Federal territories, the Freely Associated States and the Department of
Defense Education Agency, I write to urge the HELP Committee to take
quick action to confirm John King as the Secretary of Education.
The Department of Education needs a strong leadership team to
implement the Every Student Succeeds Act starting now. In particular,
NASDSE supports John King to be the next Secretary of Education because
of the leadership and support he gave to meeting the needs of students
with disabilities while serving in leadership positions in New York
State.
While in New York, he ensured that the needs of students with
disabilities and English Language Learners were specifically considered
in all State policy development and implementation across the entire
Department of Education. During his administration, the New York State
Education Department placed a spotlight on instruction and evidence-
based school practices that would ensure that every student had access
to learn and be successful in school. John King met with
representatives from each of the State's 14 Special Education Parent
Centers to personally hear the voices and perspectives of parents of
students with disabilities. He addressed all of the State's special
education technical assistance providers to provide a vision of high
expectations for their work. His policy and initiatives around data-
driven instruction and use of assessments to inform instruction led
many schools to develop systems of Response to Intervention and
Positive Behavioral Interventions and Supports. He also supported
transition services for students with disabilities, providing more
access to career and technical education coursework and work-based
learning opportunities and advancing a credential to recognize a
student's work-readiness knowledge and skills at the time of graduation
from high school.
During John King's administration in New York, the Education
Department also closely aligned the ESEA and IDEA accountability
systems, which significantly enhanced the State's school improvement
work to address the needs of students with disabilities in low
performing schools. While he was commissioner, access to the general
education curriculum for students with disabilities took on a renewed
focus and more schools began to develop standards-based individualized
education programs (IEPs); the use of research-based specially designed
instruction increased statewide; and results for students with
disabilities improved.
John King has been a voice for all students in the past and NASDSE
is confident that he will continue to do so as Secretary of Education.
Therefore, NASDSE is pleased to support his nomination.
Sincerely,
Theron (Bill) East, Jr., Ed.D.,
Executive Director.
______
Teach +Plus,
Boston, MA 02210,
February 23, 2015.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Senator Murray: Thank you for your
bipartisan leadership in successfully reauthorizing the Elementary and
Secondary Education Act (ESEA)--and for all of your ongoing bipartisan
work together. We are particularly grateful to both of you and to your
staff members for including teachers in a meaningful way throughout the
reauthorization process.
We are writing to let you know of our strong support for the
nomination of John King to be U.S. Secretary of Education. As you know,
Dr. King is deeply committed to equity and collaboration. He is a
consensus-builder, and we believe that quality will serve him well in
this role.
Dr. King has been a champion in promoting teacher leadership, and
we have appreciated the time he has spent with our teacher leaders.
After he met with a group of our teachers in Memphis last year, they
said they were struck by his thoughtfulness, warmth and commitment to
students. But most of all, they appreciated how much he listened and
tried to understand their views, even when they were critical of some
of the Department's policies.
We hope you and your colleagues will work together to vote this
nomination out of committee and ensure that Dr. King is successfully
confirmed by the full U.S. Senate.
Thank you for your consideration.
Sincerely,
Celine Coggins,
Founder and CEO.
______
National Disability Rights Network,
Washington, DC 20002-4243,
February 24, 2016.
To Whom It May Concern: It is with great pleasure that the National
Disability Rights Network (NDRN) enthusiastically supports the
nomination of Acting Secretary of Education, John B. King Jr, for the
position of Secretary of Education.
NDRN is the national membership association for the Protection and
Advocacy (P&A) and Client Assistance Program (CAP) System, the
nationwide network of congressionally mandated agencies that advocate
on behalf of persons with disabilities in every State, the District of
Columbia, Puerto Rico, the U.S. territories of American Samoa, Guam,
U.S. Virgin Islands, and the Northern Mariana Islands, and affiliated
with the Native American Consortium which includes the Hopi, Navajo and
Piute Nations in the Four Corners region of the Southwest. For over 30
years, the P&A/CAP System has worked to protect the human and civil
rights of individuals with disabilities of any age and in any setting.
A central part of the work of the P&A/CAP System (nearly 12,000
individual cases in 2014) has been to advocate for opportunities for
students with disabilities to receive a quality education with their
peers. Collectively, the P&A/CAP agencies are the largest provider of
legally based advocacy services for persons with disabilities in the
United States.
Dr. King brings the invaluable experience of having served as a
teacher, a school administrator, the commissioner of education for the
State of New York, as Principal Senior Advisor to the Department of
Education and most recently as Acting Secretary for the Department of
Education. Dr. King has spoken eloquently about his strong belief in
the importance of educational opportunity for all students. NDRN fully
supports this sentiment as educational opportunity is critical (and
often sadly lacking) for the success of students with disabilities.
NDRN also had the opportunity to hear Dr. King speak with eloquence on
the importance of accountability in the education of all students,
including students with disabilities.
It is the strong belief of NDRN that, at this critical juncture in
the progression of education policy in the United States, John B. King,
Jr. be confirmed as Secretary of Education.
Please do not hesitate to contact Amanda Lowe, public policy
analyst, with any questions at [email protected]
Sincerely,
Curt Decker,
Executive Director.
______
National Council of LaRaza,
Washington, DC 20036-4845,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
835 Hart Senate Office Building,
Washington, DC 20510.
Dear Senator Alexander and Senator Murray: On behalf of the
National Council of La Raza (NCLR), the Nation's largest Hispanic civil
rights and advocacy organization, I write to express enthusiastic
support of Dr. John B. King to be the next Secretary of Education.
During his tenure at the Department of Education and as education
commissioner of New York, he has shown a deep dedication to raising
academic standards and advancing equity to give opportunity to all
children facing the demands of the 21st-century workplace.
In the coming months, the Department of Education will have a
daunting task: implementing the Every Student Succeeds Act in a manner
consistent with the law's civil rights mission. Dr. King has been a
leader in education since the beginning of his career as a public
school teacher and is well-suited to oversee ESSA's regulatory process
to ensure the legislation fulfills its promise to the 13 million Latino
students and 5 million English learners in American schools.
In addition, Dr. King's nomination adds much-needed diversity to
the administration's highest ranks. As a Latino, Dr. King's inclusion
in the cabinet sends an important signal to the community that Latino
and English learner children are the future of this country. They will
have a committed voice in Washington who understands their needs and
their growing influence in public education.
We are pleased by reports of plans to move Dr. King's confirmation
process through the HELP Committee and to the floor as swiftly as
possible. We look forward to working with your staff to ensure this
occurs. Please feel free to contact Victoria Benner, Senior Legislative
Strategist, at (202) 776-1760 or [email protected] if you have any
questions.
Sincerely,
Eric Rodriguez,
Vice President.
______
Council of Chief State School Officers (CCSSO),
Washington, DC 20001,
February 24, 2016.
Dear Chairman Alexander, Ranking Member Murray, and members of the
committee: I am writing on behalf of chief State school officers to
express support for the confirmation of Dr. John King as U.S. Secretary
of Education.
Today is a critical time in education. In 2015, Congress
reauthorized the Elementary and Secondary Education Act, and States now
stand ready and willing to implement the new Every Student Succeeds Act
with the additional flexibility and authority it provides States. To be
successful, States must forge partnerships at the State, local and
Federal levels. Just as States sought a stable Federal policy on
education, we also are eager for stability within the U.S. Department
of Education during this critical time.
As a former State education chief and classroom teacher, John King
brings a unique perspective to the Office of the U.S. Secretary of
Education. As a State chief and Acting Secretary of Education, he has
demonstrated a commitment to make sure all students have a high-quality
education. He is a thoughtful educational leader who understands the
important role chief State school officers play in shaping education
policy for all kids.
For these reasons, I urge the U.S. Senate to confirm John King as
U.S. Secretary of Education. The Council of Chief State School Officers
looks forward to continuing to work with John King and his staff to
create helpful guidance and maintain State authority and flexibility
under the Every Student Succeeds Act in the months to come.
Sincerely,
Chris Minnich,
Executive Director.
______
Council of the Great City Schools,
Washington, DC 20004,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: The Council of
the Great City Schools, the coalition of the Nation's largest central
city school districts, writes to express strong support for the
nomination of Dr. John B. King, Jr. as United States Secretary of
Education. The long overdue reauthorization of the Elementary and
Secondary Education Act in Congress must now be implemented in States
and school districts throughout the Nation, and Dr. King has the
experience needed to lead this work at the U.S. Department of
Education.
Dr. King began serving in the U.S. Department of Education in
January 2015, and has been Acting Secretary of Education since the
beginning of 2016. Most importantly, Dr. King served in a number of
education positions at the local and State level prior to coming to
Washington, starting as a high school classroom teacher. His subsequent
roles in founding and managing local schools provided Acting Secretary
King with unique experience leading urban public schools that are
closing achievement gaps and preparing college- and career-ready
students. In 2011, Dr. King was appointed education commissioner for
the State of New York, where he oversaw the elementary and secondary
schools that serve over 3 million students, as well as the public,
private, and proprietary colleges and universities in the State.
In his time at the U.S. Department of Education, both before and
since becoming Acting Secretary, Dr. King has focused on improving
educational outcomes for all students and closing achievement gaps. His
priorities for expanding early learning, delivering high-quality
instruction for poor and minority students, and providing special
education, English language acquisition, and innovative services in
schools aligns with the goals outlined by Congress in the new Every
Student Succeeds Act.
The Council of the Great City Schools urges the Senate to confirm
Dr. John B. King, Jr. as U.S. Secretary of Education.
Sincerely,
Michael Casserly,
Executive Director.
______
Human Rights Campaign,
Washington, DC 20036,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
Human Rights Campaign's more than one and a half million members and
supporters nationwide, I write to urge you to support the nomination of
John B. King, Jr., to be Secretary of Education. As the Nation's
largest organization working to achieve equal rights for the lesbian,
gay, bisexual, and transgender (LGBT) community, HRC believes that Dr.
King is exceptionally qualified to lead the U.S. Department of
Education.
At the Department of Education, Dr. King has emphasized the
importance of strong enforcement of civil rights protections and
educational equity. Previously, he served the Department as Principal
Senior Advisor, carrying out the duties of the Deputy Secretary of
Education, including overseeing all preschool-through-12th-grade
education policies, programs, and strategic initiatives. He also
oversaw the Department's implementation of the My Brother's Keeper
initiative, a program designed to address the achievement gap among
boys and young men of color.
Prior to his tenure at the Department of Education, Dr. King was
commissioner of education for the State of New York serving the State's
3.1 million students and overseeing the public university system. Dr.
King pursued an ambitious agenda that invested in early learning,
supported teachers' professional development, raised standards for
students and teachers, and expanded educational opportunities for high
risk students.
A lifelong educator, Dr. King understands that the first step
toward academic success is freedom from discrimination, bullying, and
harassment, which can lead to lower academic achievement. The
Department has worked hard to protect students from discrimination,
sexual assault, violence, bullying, and harassment through strong
enforcement of Title IX of the Education Amendments of 1972 and the
Jeanne Clery Act.
We are confident that Dr. King will continue to be an advocate for
strong enforcement of students' civil rights, and we urge you to
swiftly confirm John B. King, Jr., as Secretary of Education. His
experience, lifelong service in education, and commitment to providing
every child with a high quality education make him eminently qualified
to lead the U.S. Department of Education.
Sincerely,
David Stacy,
Government Affairs Director.
______
The Leadership Conference on Civil and Human
Rights,
Washington, DC 20006,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Re: Confirm Acting Secretary John King as U.S. Secretary of Education
Dear Chairman Alexander and Ranking Member Murray: On behalf of The
Leadership Conference on Civil and Human Rights, a coalition charged by
its diverse membership of more than 200 national organizations to
promote and protect the rights of all persons in the United States, we
write to urge your support for the nomination of Acting Secretary John
King to be Secretary of Education for the remainder of the Obama
administration.
Given the recent enactment of the Every Student Succeeds Act, and
the need for active engagement by the Department of Education in the
law's implementation, the civil rights community has a deep interest in
this nomination. The original Elementary and Secondary Education Act of
1965, which was renamed the Every Student Succeeds Act in its most
recent reauthorization, sought to raise achievement for low-income and
otherwise disadvantaged children. That intent has carried through to
this most recent version of the law and it is critical that the
Department of Education is in a position--with the leadership of John
King as Secretary--to ensure that that intent is faithfully
implemented.
As a former teacher, and school, district, and State leader, Acting
Secretary King is well-suited for the role of Secretary and in
particular, to facilitate the transition from the No Child Left Behind
Act to the new law. For more than two decades, Acting Secretary King
has worked on issues affecting underserved communities. He has served
as commissioner of education for the State of New York, managing
director of one of the largest school networks in the country, and
director of curriculum and instruction at a school in Massachusetts. At
every stop, Acting Secretary King has worked to close the achievement
gap. While Acting Secretary King's experience is impressive, most
importantly, we believe Acting Secretary King understands and
appreciates the importance of working collaboratively with coalitions
like The Leadership Conference, which will be essential as we focus on
ensuring ESSA is implemented in a way that provides equity for all
students.
We believe Acting Secretary King will serve as an excellent leader
for the Department as the agency uses its important and vital role to
implement ESSA. Acting Secretary King is well-positioned to ensure that
vulnerable students and communities are meaningfully engaged in ESSA
implementation and that the Office for Civil Rights continues its good
work to enforce civil rights laws nationwide. Having his leadership for
the remainder of the Obama administration will be invaluable and we
urge the Senate to swiftly confirm Acting Secretary King. If you have
any questions, please feel free to contact Nancy Zirkin at
[email protected] or Liz King, Director of Education Policy at
[email protected] Thank you for your consideration.
Sincerely,
Wade Henderson,
President & CEO.
Nancy Zirkin,
Executive Vice President.
______
New Leaders,
New York, NY 10010,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: New Leaders is
pleased to support President Obama's nomination of Dr. John B. King,
Jr., as the U.S. Secretary of Education.
New Leaders is a national nonprofit organization dedicated to
providing all children with a meaningful, high-quality education that
prepares and inspires them to be successful in college, career, and
citizenship. We develop transformational school leaders to serve the
Nation's highest-need communities and advance the policies and
practices that enable great leaders to build schools where teachers
thrive and students excel. To date, we have trained more than 2,500
leaders who are currently serving 450,000 students across the country.
For the past year, first as Acting Deputy Secretary and most
recently as Acting Secretary, Dr. King has demonstrated a deep,
unwavering commitment to our Nation's students, their families, and the
dedicated teachers and leaders who serve them--particularly in the
highest-need schools and communities. His unmatched dedication to
equity, coupled with his experience as a successful teacher, principal,
and system leader, make him especially well-suited to lead the U.S.
Department of Education as it supports States, districts, and schools
to implement new provisions of the Every Student Succeeds Act (ESSA). A
former New Leaders board member, Dr. King recognizes that the success
of any school improvement effort depends on the quality and strength of
our Nation's school leaders. He is uniquely qualified to oversee the
Department's support for leaders at the classroom, school, district,
and State levels so that they may take advantage of the opportunities
ESSA presents.
We have utmost confidence in Dr. King's ability to engage diverse
partners across the education sector to ensure that every student in
our PK-12 system is prepared for success in college, careers, or
whatever their next step in life may be. It is our hope that Congress
will confirm Dr. King in a timely fashion so that he may continue
providing balanced leadership during this critical period of transition
for our Nation's schools.
Sincerely,
Jean Desravines,
Chief Executive Officer.
______
Association for Supervision and
Curriculum Development (ASCD),
Alexandria, VA 22311-1714,
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: ASCD strongly
supports the nomination of John King to be the next U.S. Secretary of
Education and we hope that your committee moves swiftly to confirm his
appointment.
As an organization that represents over 125,000 educators at all
levels of the education profession, we appreciate Dr. King's extensive
and varied experience as an educational leader and the expertise,
perspective, and passion he brings to serving the needs of all
students. We are particularly impressed with his commitment to ensuring
that each child, in each community is healthy, safe, engaged,
supported, and challenged.
Appearing before a congressional panel on the President's fiscal
year 2017 budget request yesterday, Dr. King emphasized his intent to
continue to focus on excellence and equity for every student, enhancing
the teaching profession, and ensuring higher rates of college
completion. ASCD applauds these goals and Dr. King's focus on
increasing diversity in the educator workforce. Dr. King's experience
as a State education leader, principal, and teacher give him a diverse
perspective that will be especially beneficial in leading the
Department of Education.
We commend your leadership in moving this nomination forward,
especially at this critical time when the Department of Education is
beginning to develop the regulatory guidance that will govern the Every
Student Succeeds Act. The prospects for the successful implementation
of the new law will be enhanced by a Secretary confirmed by the Senate
rather than one serving in an ``acting'' capacity. Toward that end, we
urge the committee to approve Dr. King's nomination as soon as
possible.
Cordially,
David Griffith,
Senior Director of Government Relations.
______
The Education Trust,
Washington, DC 20005,
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of The
Education Trust, I write to express my enthusiastic support of Dr. John
B. King, Jr. to be the next Secretary of Education.
As an educator, Dr. King has important insight into what good
teaching and good schools look like. He's drawn on that insight in his
role as commissioner of education in New York, where he worked
incredibly hard to improve teaching and learning across the State, and
in his tenure at the U.S. Department of Education, where he's continued
his efforts to improve outcomes for all young people.
His compass is always guided by what he believes is right for kids,
particularly the low-income children and children of color whose very
futures depend on high-quality education. Like us, he has a driving
sense of urgency about closing the gaps in opportunity and achievement
that separate low-income students and students of color from their
peers.
The hard work of implementation of the Every Student Succeeds Act
(ESSA) is underway. Under ESSA, the Department of Education has an
important role to play through enforcement, regulation, and guidance,
especially when it comes to ensuring that States and localities are
taking seriously their responsibility to all children. The confirmation
of Dr. King as Secretary of Education would be a significant step in
that process.
We are pleased by reports that the committee will move Dr. King's
confirmation process expeditiously. We look forward to working with
your staffs to ensure this occurs. Please feel free to contact Daria
Hall, Vice President of Government Affairs and Communications, at
[email protected] or 202-293-1217 ext. 349 if you have any questions.
Sincerely,
Kati Haycock, CEO.
______
Easter Seals,
Washington, DC 20005,
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: Easter Seals
writes today urging the Senate to confirm John King as Secretary of the
U.S. Department of Education. As the leading provider of early
education services to young children with and without disabilities and
their families, Easter Seals believes strongly that our Nation's
children deserve leadership at the U.S. Department of Education that
only comes with a confirmed Secretary.
Our experience in working with Dr. King during his tenure at the
Department has demonstrated that he is well qualified to serve as
Secretary of the U.S. Department of Education. His background as a
student, teacher, principal, charter school founder, and leader of
schools and schools systems helps him understand the complexity of our
education system and why student outcomes must always be its highest
priority.
Again, Easter Seals urges the Senate to confirm John King as the
Secretary of Education. Thank you for considering our views.
Sincerely,
Katy Beh Neas,
Executive Vice President, Public Affairs.
______
The New Teacher Project (TNTP),
Brooklyn, NY 11201,
February 25, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: Today, the U.S.
Senate Committee on Health, Education, Labor, and Pensions holds its
first hearing to consider President Obama's nomination of Dr. John B.
King, Jr. to serve as U.S. Secretary of Education. TNTP strongly
endorses Dr. King's nomination, and encourages the committee and the
full Senate to confirm him as soon as reasonably possible.
TNTP has had the privilege of working with Dr. King since his days
as a school leader in New York and his term as New York State Education
Commissioner. From our experiences, we know that Dr. King does not see
himself as an appointed official navigating politics and policy.
Instead, he still sees himself as a kid whose life was changed--and
possibly saved--by great public schools.
Despite deep personal challenges that could have led him to become
a bleak educational statistic, Dr. King has epitomized hope through a
long, accomplished career as a student, an educator, and a leader of
outstanding public schools that achieved exceptional outcomes for low-
income students. That hope fuels his unbreakable commitment to all
students, but especially to those most in need of receiving an
outstanding education to fulfill their potential.
Our Nation has precious few education leaders like Dr. King, who
personally know what so many of our students know: what it's like to go
to bed hungry, or to feel entirely alone, or to be the only dark-
skinned face in a sea of white faces. Students across the country
deserve a Secretary of Education who will wake up each day fighting to
make sure they get the great education they deserve--the same kind of
education that changed his own life.
We hope you and your colleagues will vote Dr. King's nomination out
of committee and work to ensure that he receives confirmation by the
full Senate.
Thank you for your consideration, and for the work you do on behalf
of America's students.
Sincerely,
Daniel Weisberg,
Chief Executive Officer.
______
Teach for America,
New York, NY 10004,
February 24, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
828 Hart Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
615 Hart Senate Office Building,
Washington, DC 20510.
Dear Senator Alexander and Senator Murray: Teach For America writes
in support of Acting Secretary John King's confirmation to lead the
U.S. Department of Education.
John King is an inspiring leader who has both a personal connection
to and deep understanding of the power of educators to change lives.
Having grown up in a low-income neighborhood in Brooklyn, Dr. King's
academic journey from PS 276 in Canarsie to Harvard University lends
him a valuable vantage point on the state of American education. With a
wealth of experience in both teaching in and leading urban public
schools, we are confident that he will foster collaboration and find
strength in diverse viewpoints. We are confident that he will put at
the center the voices of teachers, principals, students, and other
leaders and advocates working to ensure that every child has the chance
to reach her full potential.
As the former commissioner of education in New York State, Dr. King
understands the value of State and local decisionmaking in education
and personally brought numerous lasting changes that benefited the
students of New York. Throughout his tenure, Dr. King demonstrated the
courage of his convictions, and worked tirelessly to galvanize the
State around policies that benefited New York's students. As Acting
Secretary, Dr. King has already shown he is a reliable steward in the
fight for educational excellence and equity for all students. We look
forward to continued engagement with the Department under his
leadership.
We hope that Congress will move swiftly in confirming Acting
Secretary John King to be the Secretary of the U.S. Department of
Education.
Sincerely,
Elisa Villanueva Beard,
Chief Executive Officer.
______
National Down Syndrome Congress (NDSC),
Roswell, GA 30076,
February 18, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: The National
Down Syndrome Congress (NDSC), a member-sustained, nonprofit
organization, which works to promote the interests of people with Down
syndrome and their families through advocacy, public awareness, and
information, writes in support of the appointment of Dr. John King as
Secretary of the U.S. Department of Education.
Dr. King has the qualifications to serve as Secretary of the U.S.
Department of Education. He has experience as a teacher, principal, a
charter school founder, and a leader of schools and schools systems. In
his position as commissioner of education for the State of New York,
Dr. King was responsible for the education of 3.1 million elementary
and secondary school students. Initiatives under his leadership
demonstrated a commitment to both students and educators, including
initiatives to increase opportunities for high-need students. Dr. King
also served as President of the University of the State of New York
providing him with experience in higher education.
In January 2015, Dr. King joined the U.S. Department of Education
and carried out the duties of the Deputy Secretary. A year later Dr.
King became Acting Secretary of Education. In his letter to U.S.
Department of Education staff about goals for 2016, Dr. King recognized
the progress that has been made for historically underserved students,
including students with disabilities, but also made a commitment to
address the persistent achievement gaps. It is critically important to
continue this focus on equity. NDSC supports the appointment of John
King as Secretary of the U.S. Department of Education and urges you to
confirm his appointment as soon as possible.
David Tolleson,
Executive Director.
Richelle (Ricki) Sabia,
Senior Education Policy Advisor.
______
National Alliance for Public
Charter Schools (NAPCS),
Washington, DC 20005,
February 19, 2016.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
154 Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
National Alliance for Public Charter Schools I am writing to offer
enthusiastic support for the nomination of Dr. John B. King to serve as
U.S. Secretary of Education. I urge the Senate to confirm his
nomination.
Dr. King has dedicated his career to strengthening educational
opportunities for all students. His experience ranges from classroom
teacher to commissioner of the New York State Department of Education.
Among his vast resume, Dr. King's experience as Managing Director of
Uncommon Schools, a charter school network whose core values include
high standards, accountability, curiosity and a college-going culture,
illustrates his commitment to closing achievement gaps and providing
high-quality options for all students.
Further, as the U.S. Department of Education implements the Every
Student Succeeds Act of 2015, it is critical that the Department have
strong leadership. I am confident that Dr. King's experience and
compelling record of commitment to high standards for all students make
him a great candidate to fulfill the duties of U.S. Secretary of
Education.
Thank you for your consideration on this matter. The National
Alliance looks forward to continued work with Congress and the U.S.
Department of Education to advance public education for all students.
Sincerely,
Nina S. Rees,
President and CEO.
______
Response by John B. King, Jr., Ph.D., to Questions of Senator
Alexander, Senator Enzi, Senator Murkowski, Senator Scott, Senator
Hatch, and Senator Cassidy
senator alexander
Question 1. In the Every Student Succeeds Act, the Secretary is
prohibited from prescribing the numeric long-term goals or measurements
of interim progress for academic progress and graduation rates that
States establish for all students, including timelines for those goals,
or the progress expected from any subgroups of students in meeting such
goals. How do you interpret the new law's prohibitions on the Secretary
from prescribing State goals for student achievement and graduation
rates? Will you adhere to these prohibitions and congressional intent?
Answer 1. I understand that the statute does not authorize me to
prescribe numeric long-term goals or measurements of interim progress
that a State may establish as part of its statewide accountability
system for student academic achievement and graduation rates, and the
Department will adhere to this restriction.
Question 2. In the ``Every Student Succeeds Act,'' the Secretary
and political appointees cannot attempt to participate in, or
influence, the peer-review process. Additionally, the Secretary cannot
use the approval of the State plan, or revisions or amendments to, or
approval of a waiver request, to add any requirements that are
inconsistent with or outside the scope of the law or require a State to
change its standards. How do you interpret the new law's prohibitions
on the Secretary from using the State plan or waiver process to add new
mandates or conditions to the plan? How will you adhere to these
prohibitions?
Answer 2. The statute prohibits me and other political appointees
from participating in, or influencing, the peer review process. I will
adhere to this prohibition and will ensure that the Department's other
political appointees do also. The statute makes clear that peer review
of a State plan is to provide an objective review of State plans and to
respect State and local judgments, with the goal of supporting State
and local innovation and providing objective feedback on the quality of
the State plan. I value this independent review which will provide me
with advice on whether the State plan meets the statutory requirements
and therefore warrants my approval.
In approving a State plan, amendments, or a waiver, I understand
that I cannot add requirements or conditions that are inconsistent with
or outside the scope of the law.
Question 3. ESSA explicitly reflects a bipartisan desire to reduce
the Federal footprint in America's schools. So can you explain why the
Administration's 2017 budget requests the creation of 269 new positions
at the U.S. Department of Education? This would represent an increase
of 457 positions from 2015, or more than a 10 percent increase in just
2 years. Can you explain why these positions are necessary, and why the
Department intends to expand rather than shrink, given congressional
intent to reduce the size of the Department?
Answer 3. The Department of Education is the smallest Cabinet
agency with 4,538 full-time equivalents (FTE), despite the third
largest discretionary appropriation and the $1 trillion loan portfolio.
We spend less than 1 percent of the $200 billion we make in grants and
loans annually on administration. The 457 FTE increase from 2015 to
2017 is almost all to investigate discrimination complaints and to help
administer $100 billion in new loans and service an outstanding
portfolio of over a trillion dollars. The Office for Civil Rights would
grow by 213 FTE to keep up with the surge in discrimination complaints
from 6,933 in 2010 to 10,900 in 2016. Without an increase in staff,
resolution of cases will be delayed. Federal Student Aid staff will
increase in order for ED to monitor schools and contractors who help
provide aid to 12 million students each year. While we rely on private
sector contractors to service the 41 million loan borrowers, we need
Federal staff to work with the contractors to ensure they are serving
our customers. Finally, we also need expert staff to manage our cyber
security efforts and control the privacy of data. That said, we are not
assigning more staff to ESSA programs.
Question 4. Since you've been at the Department, you've talked
repeatedly about the importance of closing racial and economic
``achievement gaps.'' That's a good and important use of the bully
pulpit. How will you also shine a focus on addressing the educational
needs of middle-class and suburban students?
Answer 4. I have been very clear that I see no task as more
critical than advancing educational equity and excellence. The goal is
not to advance equal access to a mediocre education, it is to ensure
that every student, regardless of race, class, or zip code has access
to the truly world-class education they deserve and need in today's
economy. As the question notes, the ``equity'' piece of that equation
is fundamental to our ability to live up to our ideals as a nation and
I will continue to focus on improving outcomes for students most in
need. Despite significant progress over the past several years,
students from low-income families and students of color lag behind
their peers in nearly every important measure of school achievement. So
do our rural students and students with disabilities, our English
Learners, Native American students, and homeless students. That must
change.
However, we are also pursuing work in a number of areas that inure
benefits to all students. The President's proposal to expand preschool
for all would give more children--including middle class children--the
early start that we know bolsters long-term success. Our Computer
Science for All initiative aims to empower all students, regardless of
background, with the computer science and computational thinking skills
to succeed in today's innovation economy. Through our Testing Action
Plan, we are working to reduce unnecessary, redundant or poorly
designed assessments that eat up instructional time without providing
useful feedback for parents and educators. With the passage of the
Every Student Succeeds Act, States and districts have an opportunity to
reclaim the goal of a well-rounded education for all students: an
education that not only promotes strong numeracy and literacy skills
but also provides access to science, social studies, the arts, physical
education and health, and the opportunity to learn a second or third
language.
As I have in my time at the Department to date, I will continue to
pursue policies and celebrate local efforts that support excellence in
all of these ways.
Question 5. The past year has seen a great deal of turbulence on
college campuses. Whatever one makes of the current debates, there has
been a worrisome inclination to stifle certain voices and kinds of
speech. What do you think of attempts to silence ``hurtful'' speech or
dis-invite unpopular campus speakers? Can we expect you to speak
forthrightly and frequently on the vital role of free speech and
intellectual diversity in higher education?
Answer 5. On December 31, then Secretary Arne Duncan and I
(performing the duties of the Deputy Secretary) issued a Dear Colleague
Letter to enlist the help of education leaders and administrators to
help promote mutual respect, tolerance, and diversity on our Nation's
schools and institutions of higher education and ensure that their
schools and institutions of higher education ``are learning
environments in which students are free from discrimination and
harassment based on their race, religion, or national origin.'' The
letter is available at: http://www2.ed.gov/policy/gen/guid/secletter/
151231.html.
The focus in the letter on these protections, while always
essential, is particularly important amid international and domestic
events that create an urgent need for safe spaces for students. In the
letter, we emphasized that ``[t]o be very clear, working to maintain
safe learning communities does not, and must not, mean chilling free
expression about the issues of the day--this work is about taking
thoughtful steps to create space for open and constructive dialog,
while dealing swiftly with actions that create an unlawful hostile
environment.'' We indicated that ``protecting free speech means
protecting the ability of your students, faculty, staff, and members of
the public to hold and express views that may be at odds with your
institution's strongly held values. Schools should not ignore the
dissonance that this creates, but should instead consciously use these
moments as opportunities for reflection, discussion, and increased
understanding.''
Question 6. There is concern that the Department of Education is
using title IX to strip basic constitutional rights from those accused
of sexual assault on campus. In a letter that 28 members of the Harvard
Law School faculty published in late 2014, they wrote that, under
pressure from the Department of Education, ``Harvard has adopted
procedures for deciding cases of alleged sexual misconduct which lack
the most basic elements of fairness and due process, are overwhelmingly
stacked against the accused, and are in no way required by Title IX law
or regulation.'' What is your response to such concerns? If confirmed
as secretary, what would you do to address them?
Answer 6. The Department's regulations implementing title IX
require that educational institutions adopt ``grievance procedures
providing for prompt and equitable resolution'' of complaints. 34 CFR
106.8(b). The Department's Office for Civil Rights (OCR) interprets
that regulation to require equitable treatment of both complainants and
those accused. At the current time, OCR has accepted for investigation
around two dozen complaints filed by accused students claiming they
were not treated equitably by their schools.
Under OCR's interpretation of title IX, its implementing
regulations, and case law as reflected in its guidance documents and
enforcement actions, both parties must have equal opportunity to
present relevant witnesses and other evidence and to otherwise
participate in the process and must be afforded similar and timely
access to any information that will be used at the hearing.
Additionally, while OCR does not require schools to permit parties to
have lawyers at any stage of the proceedings, if a school chooses to
allow the parties to have their lawyers participate in the proceedings,
it must do so equally for both parties. This interpretation is based on
statute and regulation.
Specifically with regard to Harvard Law School (HLS), I would note
that the faculty op-ed criticizing the existing HLS sexual violence
policy was published before the conclusion of OCR's investigation,
which later concluded that the HLS policy violated title IX and its
regulations.
Question 7. The Administration has talked at length about the
importance of early childhood education. Can you tell us how you will
work with Congress to assess the benefits of current Federal pre-K
efforts and reduce unnecessary paperwork or bureaucracy, rather than
continuing to call for a new Federal pre-K program?
Answer 7. We appreciate your leadership in helping to authorize,
and continue, the Preschool Development Grant program as a part of
ESSA, which began as an opportunity for States to develop or accelerate
their work to provide high-quality, state-funded preschool to children
from low- and moderate-income families. We will continue to work
closely with Congress and other agencies to assess the benefits of
early childhood education and ensure efficient and high-quality early
learning programs to meet the need of families, children and States. We
have invested in research through our Institute of Education Sciences,
and in partnership with HHS and private sector partners, through the
National Academies of Science, to identify evidence-based strategies
that support children's learning and development. In addition, we
continue to work more collaboratively than ever with our partners at
the Department of Health and Human Service in jointly administering the
Race to the Top-Early Learning Challenge and Preschool Development
Grants. We have also established an Interagency Policy Board to
coordinate and align Federal early learning programs and policies, and
to avoid redundancy. As the two largest providers of Federal early
learning services we will continue to work together and with Congress
to continue identifying best practices in early childhood development
and help ensure the needs of our youngest children are met efficiently.
Question 8. I appreciate your willingness to review the Task Force
on Federal Regulation of Higher Education's report ``Recalibrating
Regulation of Colleges and Universities.'' The report identifies
several provisions and regulations that the Department of Education can
change or modify on its own, without congressional action. Some of
these provisions include changing the Return to Title IV regulations
and updates to the financial responsibility standards. Are there
specific items or initiatives in the report that the Department of
Education will undertake to enact smarter and less burdensome
requirements on our 6,000 colleges and universities?
Answer 8. The Administration has already taken steps that are
included in the task force report aimed at reducing administrative
burden at colleges and universities while maintaining the integrity of
the student financial aid programs. In September, President Obama
announced that beginning with the 2017-18 award year students and
families will be able to access and submit the Free Application for
Federal Student Aid 3 months earlier, beginning October 2016. In
addition, applicants will submit ``prior-prior'' income information,
meaning that 2015 income information, already available in October
through the data retrieval tool, will be used to inform aid decisions
for the 2017 award year. Both of these changes will streamline the
student aid process and provide families with an earlier picture of
their aid eligibility more consistent with the timeline for applying
for college and it will also significantly reduce the verification
burden for colleges and universities as called for by the task force.
In addition, we have taken administrative steps to improve the
Federal financial aid process. Today, more than 99 percent of FAFSAs
are submitted online. On average, students complete the online FAFSA in
approximately 20 minutes, one third of the time it took 7 years ago.
Moreover, last year over 6 million students and parents used the IRS
Data Retrieval Tool (DRT), which allows students and parents to access
and automatically transfer their IRS tax return information into the
FAFSA. Despite these improvements we agree more can be done to make it
easier to apply for college. That is why the fiscal year 2017 budget
called for the elimination of up to 30 questions related to savings,
investments, and net worth, since these have very little impact in
determining aid awards, as well as untaxed income and exclusions from
income data that are not reported to the IRS. When coupled with the
steps the Administration has taken to simplify and streamline the FAFSA
process, these policy changes greatly reduce institutional verification
burden as called for by the task force. We look forward to continuing
to work with Congress on how best to address these issues.
Question 9a. In the Inspector General (IG) Fiscal Year 2015 Federal
Information Security Modernization Act (FISMA) Report, the IG conducted
a cybersecurity vulnerability audit in which it was able to penetrate
one of the Department's networks and move throughout the system
undetected. The IG concluded: ``We determined that the Department's
overall incident response and reporting program was not generally
effective because we identified key weaknesses in it detection and
prevention of system penetration.'' The Department's inability to
detect an outside actor as it moved throughout the system raises
concerns that the Department has already been breached and is unaware
of the compromise to it systems. If confirmed, will you commit to
promptly conducting a full scan of all of the Department's systems to
determine whether outside actors have infiltrated the system
undetected? Additionally, will you commit to repeating such scans at
regular intervals?
Answer 9a. The Department has taken a number of proactive steps to
manage cybersecurity risk factors, and regular scanning and testing is
an important part of those efforts. Among other things, the Department
has sought technical assistance and information about best practices
from across the Federal Government, including components of the
Department of Homeland Security. We are committed to aggressively
implementing best practices in order to proactively identify and
remediate any weaknesses in our systems and continually address
evolving cyber risk factors.
Question 9b. What steps is the Department taking to improve its
incident response and reporting program?
Answer 9b. I have directed my team to further strengthen our
incident response capabilities in the coming year by reviewing and
implementing best practices and lessons learned from public and
commercial experiences with incident response. These steps will improve
our preparedness and the efficiency and effectiveness of our processes
in order to be ready to respond, if necessary. For example, the
Department is implementing new and additional incident response
capabilities and resources to detect the types of malicious attacks
identified during the audit through funding included in the fiscal year
2016 budget. The Department is also taking additional steps to ensure
and validate that all intrusion detection/prevention systems supporting
the Department's networks are properly configured and monitored.
Additionally, we are conducting a review of the EDUCATE and VDC network
security architectures in order to identify and implement plans to
rapidly address any gaps.
Question 10. If confirmed, do you expect schools and universities
to comply with every word of title IX guidance? Please answer yes or
no. If no, please explain what is required by the guidance and what is
not.
Answer 10. We clearly state in guidance documents when the statute
or regulations require specific action, and also provide best practices
which do not require compliance. Guidance, by itself, is non-binding.
The guidance issued by OCR contains both OCR's interpretations of what
title IX and its implementing regulations and case law require and some
non-exclusive ways for schools to meet those requirements.
The Department does not expect schools and universities to comply
with every word of the Office for Civil Rights' (OCR's) 2011 Title IX
Dear Colleague Letter regarding sexual violence, or its 2014 Title IX
Frequently Asked Questions (FAQs) regarding sexual violence. For
example, OCR's 2014 FAQs regarding sexual violence discourages student
participation in conduct review boards in cases involving allegations
of sexual violence. But in two recent examples, OCR issued letters
resolving investigations at two universities (University of Virginia
and Michigan State University) that described their violation of title
IX and how they would be resolved; neither letter identified student
participation as a title IX violation and both institutions continue to
include students on those boards.
Question 11. Does the Office for Civil rights require schools and
universities to use a preponderance of evidence standard when deciding
whether an allegation of sexual assault occurred?
Answer 11. Title IX and its implementing regulations include the
requirement that educational institutions adopt ``grievance procedures
providing for prompt and equitable resolution'' of complaints, 34 CFR
106.8(b)--OCR's use of the ``preponderance of the evidence'' standard,
as explained in its 2011 Dear Colleague Letter, is based on these
statutory and regulatory requirements, and is based on case law.
Question 12. If confirmed, Section 8549 of the Every Student
Succeeds Act requires that you develop procedures to review guidance
and allow the public to request guidance be modified or rescinded. Have
you started that process? If not, when will you begin to work on it?
Answer 12. This is the beginning of an important and long-term
process and we want to make sure we are supporting States as they
transition to the new law. For new or revised guidance, the Department
continues to use its processes for approving guidance documents
internally, and to use executive office clearance processes for
obtaining White House clearance. A list of significant guidance
documents is available http://www2.ed.gov/policy/gen/guid/significant-
guidance.html, and will continue to be updated. This list provides the
date in which the guidance was last issued or revised, and includes
instructions by which the public can submit comment on any of the
significant guidance documents. For Department guidance that will need
to be rescinded as a result of ESSA, the Department will implement the
processes outlined in the Office of Management and Budget, Executive
Office of the President ``Agency Good Guidance Practices,'' which
outlines policies and procedures for the development, issuance, and use
of significant guidance documents by executive branch departments and
agencies.
Question 13. I have concerns when Federal agencies attempt to
institute new policies and rules under the guise of interpretative
guidance, and in the Department of Education's case, using Dear
Colleague letters to set new requirements instead of using the
rulemaking process. In a recent Dear Colleague Letter (DCL GEN 15-14),
the Department asserts its intent is to ``reState and clarify the rules
. . .'' regarding guaranty agencies. However, the existing regulations,
which have been followed for years by guaranty agencies (and for which
the Department has conducted audits and oversight), were implemented
and were never challenged by the Department until now. After the
issuance of this new six-page Dear Colleague Letter, the Department
attempted to add this very issue to the current negotiated rulemaking
process regarding borrower defenses in order to, as stated in the
corresponding issue paper on the proposed regulation, ``codif[y] the
explanation of regulations provided in Dear Colleague Letter GEN-15-14
. . .'' Given that the Department wanted to codify the Dear Colleague
letter, it appears that DCL GEN 15-14 is not simply restating a long-
standing rule. While the issue has been removed from the discussion at
the ongoing negotiated rulemaking, it is still pending in the courts--
an unfortunate result of the Department not following the proper
regulatory process.
Will you retract DCL GEN 15-14 and instead follow the rulemaking
process? Will you assure this committee that in the future new rules
and policies will be promulgated through the rulemaking process?
Answer 13. The Department utilizes Dear Colleague Letters (DCLs) to
provide clarification to the field on how the Department interprets our
regulations. We believe this helps institutions keep within the law and
regulations, and DCLs are often issued in response to questions in the
field about the implementation of our regulations. The DCL you
reference was issued by the Department to explain the history of the
rules governing the imposition of collection costs on borrowers who
enter into repayment agreements (including a rehabilitation agreement)
within 60 days of a default. As discussed in that letter and in the
decision of the United States Court of Appeals for the Seventh Circuit
in Bible v. United Student Aid Funds, the conclusion that a guaranty
agency cannot charge collection costs to a borrower who enters into a
repayment agreement within 60 days of default is based on regulations
issued by the Department in 1992, which were based in part on earlier
regulations governing tax refund offset procedures issued in 1986. As
we also noted in the DCL, it is the Department's experience that few
borrowers enter into a repayment agreement within the initial 60 day
period. Therefore, the Department's past reviews of guaranty agencies
did not focus on that particular issue. However, as noted in the letter
and in the Court's decision, the Department explained the prohibition
on charging collection costs to these borrowers when the issue arose.
In light of the claims made by United Student Aid Funds in the Bible
case (which were ultimately rejected by the court), we offered to make
our long-standing and established interpretation of the regulations
even more clear under the negotiated rulemaking process.
Question 14. As the committee approaches reauthorizing the Higher
Education Act, an organization has raised concerns over student safety
abroad. One of their concerns is that students who attend study abroad
programs and families of these students are unaware of safety hazards,
such as dangerous landscapes, harsh weather, diseases or crime, in the
country or region where they plan to travel. Please update the
committee on the following:
(1) Steps the Department has taken to disseminate safety
information about study abroad locations to institutions of higher
education, students or families; and,
(2) Efforts the Department has taken to coordinate with the
Department of State on disseminating information to institutions of
higher education, students and families about safety concerns in
foreign countries or about access to Department of State traveler
resources.
Answer 14. The Department of Education's International & Foreign
Language office (IFLE) continues to disseminate information to its
listserv and through social media about general study abroad safety.
The IFLE office continues to require all grantee travelers to register
with the Department of State's Smart Traveler Enrollment Program (STEP)
for up to date information on country-related risks. IFLE has posted a
page on Travel Abroad Safety and Health on its Web site at: http://
www2.ed.gov/about/offices/list/ope/iegps/travel-safety.html and
referred the public to study abroad safety resources readily available
online through its social media outlets. The IFLE team is also planning
a webinar in the spring of 2016 on the subject of study abroad safety.
IFLE communicates clearly that all Fulbright-Hays participants are
required to have health insurance that must be valid in the host
country. The participant's insurance must include emergency evacuation
coverage. Students who use their title VI funded Foreign Language &
Area Studies (FLAS) fellowships to study overseas are informed about
STEP, and IFLE allows students to use the institutional payment portion
of the fellowship to purchase health insurance.
The IFLE team coordinates regularly with the Department of State's
Bureau of Education & Cultural Affairs on issues related to student
safety abroad. The IFLE team continually assesses the advisability of
supporting programs in specific nations based on the Department of
State's safety assessment. The IFLE team also regularly meets with the
Fulbright Foreign Scholarship Board, which jointly oversees Fulbright
and Fulbright-Hays programs at the Departments of State and Education,
respectively to discuss a number of issues related to the programs,
including safety. Upon notification of a high-risk assessment from the
Department of State, IFLE staff quickly communicates with staff at
pertinent institutions of higher education as well as with State
Department posts or Fulbright Commissions in country to ensure an
adequate response to protect the health and safety of students and
faculty in that country, including, when necessary, authorizing
immediate withdrawal and return to the United States.
senator enzi
Question 1. At a February 2, 2016 hearing before the House
Committee on Oversight and Government Reform, you testified about rapid
improvements in the wake of the Department's negative performance in
OMB's evaluation of cybersecurity programs. That is good progress, but
it is just a first step.
Even if the Department is finally coming into compliance with the
cybersecurity audits it faces from the IG, the Department must
recognize that cybersecurity cannot solely be compliance based. The
Department must have a strong cybersecurity posture that can adapt and
respond to the evolving threat actors who seek to use its 139 million
student records for nefarious purposes. What steps will you take to
adopt a proactive cybersecurity posture?
Answer 1. I agree that the Department has made meaningful progress
on cybersecurity in the past year, but the work of addressing
cybersecurity is never done, and I have made the continued
strengthening of cybersecurity a top management priority for the next
year. There are a number of areas I have identified for additional
improvements and I have directed my team to immediately undertake
additional actions to address those.
First, the team is continuing to work aggressively to accelerate
implementation of two-factor authentication for the remaining
privileged users in order to achieve 100 percent compliance as
projected during March 2016. Additional steps include continuing to use
a focused and disciplined approach to systemically resolving--and
addressing the root causes behind--any cybersecurity related findings
from both our 2015 FISMA Audit and the 2015 Financial Statement Audit.
Beyond those compliance measures, I have also directed the team to take
additional proactive steps to strengthen the cybersecurity of our
networks, increase end user cybersecurity awareness, support and expand
further the cybersecurity capacity of our third party partners at
guaranty agencies and institutions of higher education, grow our
incident response capabilities, and continue to build the capacity of
our internal team through hiring of additional professionals with
expertise on these issues who can assist us in implementing best
practices to improve the Department's cybersecurity program.
Question 2. During your time as Commissioner of Education in New
York, you faced significant backlash from virtually all parties with
regard to your effort to facilitate the implementation of inBloom. The
purpose of inBloom was to amass an extraordinary amount of student data
with the intent of sharing it with private software developers to
create personalized educational products. This effort was finally
stopped by an act of the New York State Legislature.
What did you learn from that lesson with regard to the sensitivity
of student data and how it belongs to the students and their parents or
guardians until their consent is explicitly provided?
Answer 2. While data can be incredibly transformative and
empowering, student privacy must be prioritized. Data is critical to
teachers and it allows them to support students, differentiate
instruction and make real time decisions to help students to succeed.
Analyzing and acting upon data in smart ways can transform teaching and
learning and help students, empower parents and inform school leaders
in order to enable targeted deployment of scarce resources. Using data
in a smart way is also an essential to expanding equity--data can help
teachers identify, understand, and address gaps they might not have
otherwise recognized.
While we work to harness the power of data to promote access to an
excellent education for all, we must also be as diligent about student
privacy as we are about the need to use student data. States and
districts must adopt best practices to protect student privacy and
learn from each other as we all move forward to improve outcomes for
all students. The Department plays an essential role in protecting the
personal information of our students by ensuring the proper access to
and use of student data through its administration and enforcement of
the Family Educational Rights and Privacy Act (FERPA) and the
Protection of Pupil Rights Amendment (PPRA). In order to stay ahead of
the growing number of complex student privacy issues, the Department is
committing additional resources to our student privacy operations in
order to enhance our ability to administer and enforce these laws, and
to promote privacy best practices.
senator murkowski
Question 1. What is your vision for the Department of Education?
Answer 1. I believe education can be the difference between hope
and despair--between life and death, even--because it was for me.
Amidst the trauma and uncertainty in my life after my parents passed
away, school was a refuge. Teachers saved my life. It was, in large
part, because of them that I became a teacher myself. But there are too
many children from backgrounds like mine who deserve the same chance. I
want school for them to be what it was for me. And I believe every
American, regardless of background, deserves the world class education
that it will take to succeed in today's economy.
I have laid out three priorities for the Department for the
remainder of the year.
First, we must support States, districts, and educators in their
work to advance educational equity and excellence for every child.
Through implementation of the Every Student Succeeds Act, the
Department will continue to play its critical role in ensuring
guardrails to protect students' civil rights. At the same time, we will
support State and local efforts to seize the new opportunity to
establish better, more balanced ways of assessing student learning and
to reclaim the goal of a well-rounded education for all students. In
addition to implementing the new law, the Department will continue to
use our policy tools and our ``bully pulpit'' to keep the national
focus on a first-rate education for every child--including supporting
State and local efforts to expand access to high-quality preschool and
computer science.
Second, we must lift up the teaching profession, and find more ways
to celebrate, support, and sustain our Nation's educators. We all know
from research and from personal experience the importance of great
teaching. The start of a new era also brings with it an opening for a
much-needed reset in the national dialog. Over the last few years,
education policy discussions have too often been characterized by more
heat than light--especially where educators are concerned. Despite the
best of intentions, teachers and principals, at times, have felt
attacked and unfairly blamed. All of us--at the local, State, and
Federal level--have to take responsibility for the climate that exists.
And all of us must do whatever we can to change it.
Finally, we know that in today's skills-based economy, education
beyond a high school diploma is more important than ever before. We
must continue to work together to ensure that every student has the
opportunity to obtain the post-secondary education needed to gain the
knowledge to succeed--whether in the form of a 2-year or 4-year college
degree, or an industry credential and direct pathway to a well-paying
job. The Department will continue to focus on advancing access,
affordability, and completion in higher education--including protecting
students and taxpayers by cracking down on fraud and abuse by bad
actors and supporting student loan borrowers to manage their loan
repayment.
Question 2. Your written testimony was not very specific about how
you plan to lead the Department to implement the Every Student Succeeds
Act. What do you feel the role of the Department is in K-12 education
going forward?
Answer 2. The passage of the Every Student Succeeds Act (ESSA) is a
major accomplishment and builds on existing efforts to expand
educational excellence and equity in partnership with States,
districts, communities, and educators. ESSA presents us with a moment
of both opportunity and moral responsibility.
ESSA advances equity by upholding critical protections and
maintaining dedicated resources for America's most disadvantaged
students. Importantly, the law maintains expectations that action will
be taken to improve opportunities for students in schools that
chronically underperform, that do not improve low graduation rates, and
that do not ensure progress for all student groups.
The new law also embodies much of what the Obama administration has
supported over the last 7 years. For the first time, ESSA enshrines in
law high, state-chosen learning standards so that all students are
prepared for college and careers. The law supports local innovation and
builds on this Administration's historic investments in quality
preschool. It requires that information on student progress is shared
through annual, statewide assessments. And it supports State efforts to
audit and streamline assessments so that all State and local tests are
high quality and worth taking.
Importantly, ESSA builds on work already underway to raise
expectations for students and establish locally tailored systems for
school improvement in States. The law rightly shifts responsibility for
developing strategies to support the highest-need students and schools
to State and local decisionmakers--and away from the one-size-fits-all
mandates of No Child Left behind. And it creates opportunities for
States to reclaim the goal of a rigorous, well-rounded education for
every child. The Department of Education will work to be a good partner
to States, districts, and educators as they take on this critical work.
Education is, and should remain, primarily a State and local
responsibility. ESSA is a big and complex law with new provisions
related to data reporting, accountability, support systems, programs,
and authorities. What we plan to do at the Federal level is to support
States and districts to improve opportunity for students, invest in
local innovation, research and scale what works, ensure transparency,
and protect our students' civil rights by providing guardrails to
ensure educational opportunity for all children. I, and all my
colleagues at the Department, take these responsibilities very
seriously.
Ultimately, we all want quality implementation of the law that
supports States, districts, and schools in helping every student to
succeed.
ESSA implementation will require an incredible amount of work. The
Department has heard from stakeholders across the country about where
guidance or technical assistance is most needed. We've sought input on
areas in need of regulation, received hundreds of comments via our
notice in the Federal Register, and held public meetings.
We're still early in the process, but there's urgency in the work.
To support States, districts, and educators the Department will engage
in negotiated rulemaking on assessments and the law's requirement that
Federal funds be used to supplement, not supplant local and State
investments in education. Sessions will begin in late March and will be
open to the public.
As we continue to meet with stakeholders and determine regulations
and guidance requiring updates, we look forward to a robust discussion
on the new law.
Question 3. The Department of Education has been severely
criticized by the Inspector General for not sufficiently protecting the
139 million Social Security numbers of Federal student aid borrowers.
The IG successfully hacked the Department's computer network in a 2015
audit and concluded that the Department's ability to protect that
private data is not effective. Please list the actions that you, as
Acting Secretary, are taking right now to bring the Department's
cybersecurity grade from a ``D'' to an ``A'' over the next year.
Answer 3. I take the Department's responsibility for safeguarding
sensitive data extremely seriously. While I believe that the Department
has made meaningful progress on cybersecurity in the past year, the
work of addressing cybersecurity is never done, and I have made clear
to my team that we must do better, and continue to do better. That is
why I have made the continued strengthening of cybersecurity a top
management priority for the next year. There are a number of areas I
have identified for additional improvements and I have directed my team
to immediately undertake additional actions to address those,
including: completing implementation of two factor authentication at
the single external vendor by the end of March 2016, systematically
resolving and addressing identified root causes for all cybersecurity
related audit findings, strengthening the cybersecurity of our
networks, as well as the networks of our third party partners at
guaranty agencies and institutions of higher education, increasing end
user cybersecurity awareness, growing our incident response
capabilities, and building the capacity of our internal team through
additional hiring of expert professionals.
Question 4. The Every Student Succeeds Act includes two provisions
that I worked on with my colleagues on this committee as well as
Senator Boxer and others across the Senate. The first is the
reauthorization of the 21st Century Community Learning Centers program,
which supports afterschool programs. We negotiated a provision within
the 21stC program to allow certain high-quality extended learning
programs to use 21stC funds for 21stC activities only, and not for the
general costs of implementing an extended school day or year program.
Will you commit that the Department will abide by this statutory
limitation as you develop regulations and guidance under ESSA and as
you solicit applications for 21stC funds?
Answer 4. The Department recognizes the important purpose of the
21st Century Community Learning Centers program to support before- and
after-school programs, and we will abide by ESSA's requirements for the
21st Century program, in accordance with the statute.
Under ESSA, States may use funding to support 21st Century
activities that are included as part of an expanded learning program
that provide students at least 300 additional program hours before,
during, or after the traditional school day. ESSA provides priorities
for the use of funds that focus on providing services to students who
attend schools that are implementing comprehensive support and
improvement activities, along with several other priorities. These
funds may not supplant school day requirements.
Question 5. The second ESSA provision that I would like to ask you
about is one that Senator Franken and I worked on--the authorization of
funds from Indian Education National Activities to support Native
language immersion programs and schools. The purpose of authorizing
this support is to assist American Indian and Alaska Native communities
throughout the Nation to revitalize their languages, which are so
closely tied to their cultures and their children's future. Native
communities are anxious for these funds to become available. When can
these communities expect to see the first request for applications for
these funds? How do you anticipate implementing this provision to
ensure that schools and programs in all regions of the country, serving
the maximum variety of languages, are able to benefit from this
support?
Answer 5. Over the last 7 years, Indian students and communities
have made progress in reinvigorating efforts to preserve and restore
Native languages and culture; increasing tribal capacity to influence
and control educational decisions for Native students; and raising
awareness about school climate issues that are unique to Indian
students and communities. The Native language immersion schools and
programs provisions are an important continuation of this work.
The administration has begun and will continue to engage tribal
communities and other interested stakeholders through the summer of
2016 in order to establish priorities and ensure timely implementation
of the new provisions and programs authorized in ESSA. We thank you for
your leadership on Native language immersion issues and will remain in
close contact with your office as we consider implementation of this,
and other provisions, within the new Title VI of ESSA.
Question 6. The committee's staff have been informed of the ten
investigations the Department's Office of Inspector General has
conducted between 2012 and 2015 involving senior officials. In one case
that occurred in 2012--before you arrived at the Department--a GS-15
employee sexually harassed three contract employees who were under his
operational control. While the Department of Justice declined the
matter for prosecution, the Department of Education suspended the
employee for 12 days. The Department's Office of Civil Rights works to
ensure that college students who have been harassed or abused are
protected under their title IX rights, which includes being protected
from having to study or live in proximity to their abusers. Are the
Department's employees afforded the same protection? Was the GS-15
employee removed from proximity to his victims? If not, will you direct
that such protections are afforded to all employees in the future?
Answer 6. In 2011, the Department's Office of the Inspector General
(OIG) forwarded information to the U.S. Department of Education's
Office of Management (OM) concerning allegations of sexual harassment
by an ED employee against three contract employees who were under the
operational control of the ED employee. Immediately upon notification
of the allegations, OM removed the ED employee from operational control
and proximity over the office where the three employees worked. OM
reviewed the information provided by OIG and concluded that the
information supported a finding that the ED employee made inappropriate
comments to the three contract employees. Based on OM's findings and
conclusion, OM, following ED's disciplinary procedures, issued a 12-day
suspension for ``inappropriate behavior.'' We take very seriously our
responsibility to help ensure a safe working environment for our
employees and contractors.
Question 7. How will you ensure that local communities and States
will be empowered in the new regulations pertaining to ESSA?
Answer 7. Education is, and should remain, primarily a State and
local responsibility and the Department is committed to supporting
States and local school districts in that responsibility. Importantly,
ESSA empowers State and local decisionmakers to develop their own
strategies for supporting the students and schools most in need based
on evidence, rather than imposing the one-size-fits all approach of No
Child Left Behind (NCLB). By providing States and districts with more
flexibility to innovate and implement locally driven reform, ESSA moves
beyond NCLB in a way that will drive stronger outcomes for all kids.
In considering whether to regulate, we are working to identify
areas in which regulations would clarify the law or ensure effective
implementation of the law.
This is a big and complex law, with a lot of new pieces and new
opportunities for States, districts and their students. As I have
mentioned, this is the beginning of a long process and we want to make
sure we are supporting States and districts as they transition from
NCLB to ESSA. This includes the Department gathering input to determine
our regulatory plans under the ESSA, so I cannot speak to specific
regulatory provisions here. However, I can say that we are very pleased
to have received written and oral comments from hundreds, including
those representing local school districts and States. Further, during
our upcoming negotiated rulemaking sessions, we will be seating
negotiators representing both State and local interests, among other
constituencies. Additionally, during the rulemaking process, the
public, including local State and district stakeholders, will have an
opportunity to comment on specific proposed rules before they are
final.
Question 8. In your new role as the Secretary of Education, will
you still be supportive of Boards of Cooperative Educational Services,
which provide shared educational programs and services to school
districts and States, and consider policy decisions that support
sustaining and even growing their role?
Answer 8. As Chief State School Officer in NY, I recognized how
vital Boards of Cooperative Educational Services (BOCES) can be in
building local capacity, supporting implementation, sharing promising
practices, and sustaining the work over time. They were an asset to
both my team at the State level as well as local districts and
educators in the communication, execution, and continuous improvement
of our work. This was particularly true for smaller and mid-size LEAs.
By leveraging the additional resources, expertise and capacity of the
BOCES and through collaboration they were able to make notable
progress.
Given my personal experience, I respect the right of a State to
establish entities such as the BOCES to provide shared educational
services and recognize that they often can help implement Federal
education programs. It is a State decision, however, whether to
establish these entities.
senator scott
Question 1. When we spoke in my office on 2/24/16, you said that
the Administration would prefer to support DC public schools rather
than the voucher program. You also said that the Administration is
holding onto the $35 million in excess carry over funds to preserve
scholarships for the children currently in the program. You also
justified this position by saying that the Department must hold onto
the carryover funds in the case that Congress does not make
appropriations for DC OSP in future years. As I'm sure you know, the
SOAR Act ties together funding for all three approaches to DC K-12
education: DC Public Schools, Charter Schools, and DC OSP. In fact, as
part of this approach, DC public schools have received more resources
than DCOSP since 2004. Therefore, under the SOAR Act, if Congress does
not appropriate funds for the DC OSP, then they do not appropriate
funds for DC Public Schools either. This being the case, why has the
Department chosen to withhold administrative funds from the DCOSP, but
not DC Public Schools or DC Charter Schools?
Answer 1. The Department is pleased that students in Washington, DC
are making tremendous progress. High school graduation rates are
improving, and according to last year's National Assessment of
Educational Progress (NAEP), fourth grade reading achievement in
Washington, DC improved more than any other State since the creation of
the NAEP assessment. In addition, charter schools in Washington, DC are
producing significant gains in students' learning, especially for
students from low-income homes. This progress is the result of
hardworking students, families and educators, and has been supported in
part by investments from our Department, including through the SOAR
Act. As you noted, the SOAR Act's programs are tripartite, and these
funding streams serve different functions. Whereas the awards for
charter schools support startup costs for new public schools, and
investments in DCPS largely incentivize excellent educators, under the
SOAR Act, the DC OSP funds are awarded to a grantee that awards
scholarships to eligible students seeking to attend private schools.
The SOAR Act limits the amount of appropriated funds for administrative
purposes. The Department routinely approves the grantee's request for
the maximum amount of administrative funds permitted. Also, the
Department maintains reserves to ensure that scholarships continue for
students currently enrolled in private schools through the DC OSP with
minimal disruption to their education.
Question 2. The SOAR Act provides only 2 simple criteria for
eligibility for a scholarship: That the student is low income, and that
she is a DC resident. However, the department is actively blocking
other categories of students from receiving scholarships. This includes
students who were previously enrolled in private schools, students
previously assigned to control groups, and students not using a
scholarship for 2 years or more. If a student loses access to the
resources that support their private school education--a common
scenario--under your rules that student does not qualify for a
scholarship. Do you have a reason for why the Department is excluding
these children, and will you commit to returning these eligibility
requirements according to the standard made clear in the SOAR Act?
Answer 2. The Department is committed to ensuring that all students
can earn an excellent education. In implementing the SOAR Act, the
Department considers the current and future needs of all DC OSP
scholarship students and families in the context of the statute. All
applications received by the DC OSP grantee, including applications
from students who attended private school during the previous year and
are eligible under the SOAR Act, are reviewed by the grantee to
determine whether they meet the definition of ``Eligible Student,'' in
accordance with the law. Furthermore, the SOAR Act prioritizes the
awarding of scholarships to students who were previously enrolled in a
public school identified for improvement, corrective action or
restructuring under the Elementary and Secondary Education Act. In
executing the DC OSP lottery, the grantee incorporates these priorities
while seeking to ensure a fair process for interested families. In
addition, the SOAR Act requires that the Department ``target resources
to students and families that lack the financial resources to take
advantage of available educational options; and . . . provide students
and families with the widest range of educational options.'' Consistent
with the past several years, the Department implements these
requirements by giving priority to students who attended public schools
in the previous school year over students who attended private school
in the previous school year. In addition, this year, the grantee may
award scholarships to students previously enrolled in the control group
who have a sibling currently receiving a DC OSP scholarship.
Question 3. The Obama administration has consistently zeroed out
funding for the DC OSP program in its annual budget request. Why does
the Administration continue to zero out funding for a program that can
boast a 90 percent graduation rate?
Answer 3. The Administration is committed to ensuring that there is
sufficient funding under the DC OSP to provide for the continuity of
education for students currently enrolled in the program. Sufficient
funds to accomplish that goal are retained in the Department's DC OSP
account, and therefore no new funds are required to accomplish that
goal.
The Department has focused its budget authority on ensuring equity
and excellence across K-12 public schools.
Question 4. Dr. King, in ESSA, Congress solidified support for
charter schools by streamlining existing programs providing
accountability measures, and supporting resources to replicate and
expand high-quality charter schools. Will you commit to following
congressional intent, and implementing the charter school provisions of
ESSA so that we may expand and sustain high-quality charter schools?
Answer 4. As the founder of a public charter school, and one of the
top performing middle schools in Massachusetts, I know that charter
schools can transform the lives of the students they serve. Over the
last 7 years, the Department has helped to accelerate both the growth
and the improvement of charter schools throughout the Nation. In fact,
over 40 percent of public charter schools operating in SY13-14 received
funding through the Department's Charter Schools Programs (CSP) between
SY06-07 and SY13-14. We are pleased that as the charter school sector
has grown, charter school performance also has improved, as validated
by independent researchers. In the year ahead, the Department will
continue working closely with our partners under the guidelines of ESSA
to support the creation, replication and expansion of high-quality
charter schools.
Question 5. Could you please clarify how States should treat the 95
percent testing requirements in light of the opt-out provision in ESSA
and provide an estimated timeframe for when we can expect the
Department to issue regulations in that regard? What will be the impact
on States if they are unable to meet the 95 percent requirements due to
high levels of parental opt-out?
Answer 5. ESSA maintained the longstanding ESEA requirement that
States assess all students in mathematics and reading/language arts
annually in grades 3-8, and at least once in high school, and in
science in each of three grade spans. A high-quality annual statewide
assessment system that includes all students is important so that local
leaders, educators, and parents can have the information they need to
help every student succeed and ensure equity by holding all students to
the same high expectations. The Department is still in the process of
gathering input on what regulations to promulgate and guidance to
issue, and at this point I cannot estimate a timeframe by which
potential regulation or guidance documents would be ready.
We also recognize and share concerns about the amount of time
students are spending on standardized testing in some places. That's
why the President has put in place a Testing Action Plan to improve
assessment systems and eliminate unnecessary or low-quality
assessments. The Department has taken significant steps forward in
implementing that plan and will continue to do so.
senator hatch
Question 1. I was heartened that Secretary Duncan abandoned trying
to calculate a ``rating'' for each our 6,000 colleges and universities
and instead put out the College Scorecard with discreet statistics, so
students and families can determine which data points are important for
them.
But, I was disappointed to learn that the Department kept no
records of how the student borrowing and repayment calculations were
made.
Recently, my staff recently submitted a request with the Department
asking for technical assistance in order to model the effects of
Senator Shaheen's and my Student Protection and Success Act, which
depends on student loan repayment rates. As the College Scorecard
featured many years of repayment rates, I wished to use the variables
that were part of the mathematic formula used to calculate these rates
prominently featured by the Department's new transparency tool.
However, my staff was informed that the Department did not keep any
of the calculations or underlying variables used to calculate the
College Scorecard repayment rates.
It is highly unusual to publicize findings, especially ones that
are used to compare institutions, without being able to reproduce your
calculations or ``show your work'' as they say in mathematics classes.
Can you explain the Department's reasoning behind this, and ways in
which the Department may act in a more mathematically valid way in the
future?
Answer 1. My staff was pleased to provide your office with the
information requested last month. After reviewing the initial request,
we determined that the exact specifications of the request did not
align with the backup data that were maintained for the Scorecard
repayment rates. The request for balances at particular points in time
could not be accomplished without generating concerns about the privacy
of student-level data. Instead, in order to meet your request, we were
able to provide a new data run that better matched the nature of the
request from your office, and that protected the privacy of borrowers
in the cohorts. As we continue to produce the College Scorecard, we
will work to refine the calculations, as well as to evaluate ways to
maintain other pieces of the underlying data.
Question 2. I've been glad to see the Department move toward a more
fair, unbiased system of contracting over the past year. To make sure
this shift is continued, I would like to know what the Department is
doing to cultivate good student loan serving in the upcoming rebidding
process for student loan servicing contracts. Do your plans include
allowing high-quality, smaller NFP servicers to bid. Will the
Department ensure a fair, efficient and transparent process, with a
level playing field for participation in that process?
Answer 2. Student loan servicing is one of the Department's largest
and most complex responsibilities, affecting nearly 30 million
borrowers and having a portfolio over $1 trillion. Our first priority
is ensuring that all student loan borrowers are afforded a high-quality
customer experience as they work to responsibly manage their student
loan debt. Accordingly, we have begun to look at future models of loan
servicing and we are currently in the planning phase of a new student
loan servicing acquisition; this effort will streamline and simplify
servicing systems and processes to improve customer service, increase
efficiency, and enhance the Department's ability to effectively oversee
and monitor servicing operations.
NFPs will have an opportunity to participate in the solicitation
process, both as bidders and as members of teaming arrangements. In
managing this undertaking we will work to ensure that borrowers receive
the highest quality of service while protecting the interests of
taxpayers.
Question 3. The Department of Education has consistently tried,
often with underwhelming results, to either incentivize or mandate
equitable teacher distribution throughout States. As you know TEACH
Grants and other tools have shown to not be effective at incentivizing
teacher placement, nor can you require that States achieve equitable
distribution. How do you plan to streamline the incentive process for
individual teachers, and how do you plan to help States do the same?
Answer 3. Ensuring equitable access to excellent educators for all
students--particularly students from low-income families and students
of color, continues to be one of ED's key priorities, and we seek to
use the tools we have to support increased equity. For example, the
Department recognizes that existing teacher financial assistance
programs have proved insufficient to incentivize individuals to join
and remain in the teaching profession. That is why the President's
fiscal year 2017 budget proposes simplifying existing post-secondary
assistance available to teachers by consolidating existing programs
into a single, more generous loan forgiveness program. The new program
would reward teachers in high-need schools with forgiveness up to
$10,000, while those who graduated from effective teacher preparation
programs, as determined by States, would be eligible to receive up to
$25,000. This new program would also reward job retention by forgiving
increasing shares of student loan balances over time.
Another important effort is the new State Plans to Ensure Equitable
Access to Excellent Educators that all 50 States submitted in 2015. The
Department approved all plans, and continues to provide technical
assistance to the States as they implement their plans. In their plans,
States have proposed such strategies as making improvements to their
teacher preparation programs to ensure teacher candidates are prepared
for success in high-need, hard to staff schools; using data from
shortage predictor models to drive policymaking; providing financial
compensation for teachers working in hard to staff areas or subjects;
and improving working conditions in hard to staff schools. The
Department will continue to provide support as States implement and
continuously improve their plans to help create incentives for teachers
and achieve equitable distribution of teachers throughout their State.
Question 4. Given the Department's own issues with cybersecurity
and protecting data, how do you plan to ensure that you can provide
adequate technical assistance to States and localities who are dealing
with potential student privacy issues? As you know, the Department
included third party providers as covered school officials in past
FERPA regulations, without ensuring that these providers have adequate
contracts in place to prohibit the use of personally identifiable
student data for non-academic purposes. Please elaborate on how you
plan to ensure all data is used for the correct purpose?
The Department provides substantial technical assistance to
schools, districts, and State education agencies around student
privacy. Through staff and the Department's Privacy Technical
Assistance Center we provide training, make site visits, and develop
resources to help schools recognize and manage emerging privacy issues.
With regard to contracting, schools and districts have outsourced
institutional services or functions that can be better or more
efficiently procured externally. The Department's 2008 amendments to
the FERPA regulations recognized this longstanding practice, and
provided guidance to schools and districts to ensure that they comply
with FERPA when contracting. We issued important guidance in 2014 to
assist schools when they contract for online educational resources,
http://ptac.ed.gov/sites/default/files/
Student%20Privacy%20and%20Online%20Educational%20
Services%20%28February%202014%29.pdf. In recognition of the importance
of FERPA compliance and privacy best practices, in 2016 we have
committed additional resources to our student privacy operations,
adding an additional 5 FTE so that we can streamline enforcement,
provide guidance on emerging policy questions, and provide augmented
technical assistance.
senator cassidy
Question 1. As you know, there is a strong opt-out movement growing
in the country with many parents refusing to allow their children to
participate in State assessments. I believe that parents should have
the right to make decisions about their children's education.
While the new law does maintain the requirement for annual testing
and that at least 95 percent of students participate in those tests,
the law clearly gives the States the power to determine how
participation rates will factor into their accountability systems and
what consequences or interventions, no matter how minimal, there will
be for schools that are not compliant. This is Congress' intent.
Yet, on December 22, 2015, the Department sent a letter to Chief
State School Officers reiterating to States the consequences for non-
compliance with the 95 percent participation rate requirement. The
letter also makes suggestions on what sanctions States could impose on
school districts and schools that are non-compliant--the new law
prohibits the Department from telling States what those consequences
should be.
To me, by sending this letter, the Department is coercing States
into pressuring their school districts and schools to pressure parents
to take these tests. Parents should have a say over their child's
education without threat.
Given the current opt-out movement, how will the Department support
rather than threaten to punish States?
Answer 1. We have a responsibility to ensure that States comply
with their obligations under the law.
The ESSA continues the longstanding ESEA requirement that States
assess all students in mathematics and reading/language arts annually
in grades 3-8, and at least once in high school and in science in each
of three grade spans. A high-quality annual statewide assessment system
that includes all students is important so that local leaders,
educators, and parents can have the information they need to help every
student succeed and ensure equity by holding all students to the same
high expectations.
It is also important to note, however, that in too many schools,
there is unnecessary testing and not enough clarity of purpose applied
to the task of assessing students, consuming too much instructional
time and creating undue stress for educators and students. The
Department is working to support States and districts in addressing
this problem by implementing the President's Testing Action Plan, which
lays out principles for fewer and smarter assessments. We are providing
financial support for States to develop better, less burdensome tests,
seeking additional funding to help States review their assessments and
develop better assessments, and recently issued guidance explaining how
Federal funds can be used to support this work.
Question 2. The new law continues the requirement that States
annually assess all students in all schools in reading/English language
arts, math, and science. And the law maintains that at least 95 percent
of students must participate in such assessments. However, I have a
concern that students with dyslexia who struggle with reading start at
a disadvantage for the State reading assessments.
Dyslexia is an unexpected difficulty in reading due to the
difficulty in getting to the individual sounds of spoken language.
Research shows that it is the most common learning disability effecting
1 in 5 people.
Knowing the prevalence of dyslexia and that a State's reading
assessment may not be appropriate for dyslexic students, how will the
Department take this into consideration as they develop their
regulations?
Answer 2. Assessments should be fair, including providing fair
measures of student learning for students with disabilities--including
students with dyslexia--and English learners. Accessibility features
and accommodations must level the playing field so tests accurately
reflect what students really know and can do. The Department is still
in the process of gathering input on what regulations to promulgate and
guidance to issue, and unfortunately at this point I cannot comment on
the details of any potential regulations or guidance. However, I can
assure you that we continue to listen carefully to advocates for
students with disabilities of all types, parents, and educators in this
process.
Furthermore, using the $1.5 million provided in the fiscal year
2016 Omnibus the Administration is supporting a new Comprehensive
Center for students at risk of not attaining full literacy skills due
to a disability. The Department is in the process of developing a
priority to fund this new center and will compete and award the center
in fiscal year 2016. This new center is only one of several ways in
which the Department supports States, LEAs, and families of children
with disabilities, including children with dyslexia. For example, as
part of Office of Special Education Programs (OSEP's) Results Driven
Accountability, which shifts the Department's focus from compliance to
outcomes, OSEP is assisting 36 States with improving results for
reading or literacy. In addition to $11.9 billion provided under the
Grants to States program, OSEP has committed resources to assist States
in improving results through discretionary grant programs under Part D
of IDEA. Projects awarded under these programs help to improve outcomes
for children with disabilities, including children with dyslexia,
through technical assistance, training personnel, professional
development, and model demonstrations.
The ESSA provides an opportunity to secure educational equity for
all students, including students with disabilities. Specifically, the
new provisions helping to ensure educational opportunity, require
States to: (1) develop assessments consistent with the principles of
universal design for learning; (2) develop, disseminate information on,
and provide for appropriate use of certain accommodations, such as
interoperability with assistive technology; and (3) describe in the
State Plan that general and special education teachers, and other
appropriate staff, make appropriate use of accommodations for students
with disabilities. These new requirements will help all students with
disabilities, including those with Dyslexia.
As the Department provides ongoing guidance and support to States,
districts, and schools, we stand ready to provide technical assistance
and support to ensure appropriate accommodations are available for
students with disabilities. Additionally, our peer review of State
assessment systems will continue, and it will ensure all students,
including those with dyslexia, are appropriately assessed.
Question 3a. As a parent of a dyslexic child, I want to ensure that
students with dyslexia have the resources they need to succeed. What
resources are available at the Department to help such students? If
confirmed as Secretary, what will you do to help provide resources for
students with dyslexia?
Answer 3a. In July 2015 the congressional Dyslexia Caucus asked the
Department to ``Affirm that there is no legal reason why the term
`dyslexia' should not be used by a State or LEA when referring to the
identification of and services for a student who does in fact have this
specific Learning disability.'' In October 2015, the Department both
issued a Dear Colleague Letter and also did a series of blogs and other
social media activities to amplify the message that there is no legal
reason to avoid the use of the terms dyslexia, dyscalculia and
dysgraphia. The letter and activities were very well-received by the
dyslexia community.
Please see the response to your Question 2 for additional ways in
which the Department provides resources for students with dyslexia.
Question 3b. In addition, as part of ESSA is a new comprehensive
center for students at risk of attaining full literacy due to a
disability, including dyslexia. I look forward to the center's creation
and hope that the Department awards the center to a highly qualified
entity with demonstrated ability and experience in the specific
research on dyslexia and knowledge of the use of evidence-based
programs that have proven efficacy. If confirmed as Secretary, what
will you do to ensure the center is implemented as intended?
Answer 3b. We are in the process of drafting the grant application
package (Priority) for the new comprehensive center for students at
risk of attaining full literacy due to a disability, including
dyslexia. The Priority is being drafted by literacy experts within the
Department who have a strong research background in dyslexia and
evidence-based literacy interventions. The Center will be competed
through the Department's discretionary grant panel review process. The
applicant with the strongest application will be awarded the grant.
Literacy experts from the Department who have expertise in evidence-
based literacy interventions will serve as Project Officers for the new
Center and will ensure that the Center is an efficient, effective and
productive national literacy resource.
Question 4. Dr. King, I know you are a supporter of public charter
schools. As I mentioned in our meeting, my wife started a charter
school in Baton Rouge to help students with dyslexia. If confirmed as
Secretary, how will you continue to support the Charter Schools program
to ensure it continues to expand so that more charter schools will
open, and give parents and children a public educational choice?
Answer 4. As the founder of a charter school, I know that high-
quality public charter schools can transform the lives of students,
including students with disabilities. Over the last 7 years, the
Department has accelerated the growth and improvement of these schools
with promising results. Furthermore, in urban areas, special education
students enrolled in high-quality public charter schools experience
large gains in additional learning in math and reading according to
independent evaluators. In the months ahead, the Department will work
closely with the Charter Schools Program (CSP) and our partners in the
sector to continue scaling and improving high-performing charter
schools. We are encouraged that ESSA continues investing in high
performing charter schools, and we will work to maximize the impact of
these programs.
Response by John B. King, Jr., Ph.D., to Questions of Senator Murray,
Senator Sanders, Senator Franken, Senator Bennet, Senator Whitehouse
and Senator Warren
senator murray
Question 1. One issue I've been very focused on is improving the
Impact Aid Program which provides Federal support for school districts
serving high populations of military families and children living in
tribal communities. More than 50 school districts in my home State of
Washington rely on Impact Aid to provide high quality education to
their students. I was glad that we were able to include language in the
Every Student Succeeds Act that will simplify the application process,
ensure timelier payments to school districts and create a new hold
harmless which will provide districts funding stability from year to
year.
One district in particular--the Central Kitsap School District
(CKSD)--is the only district in Washington State that currently
qualifies for Heavy Impact Aid (HIA) funding. Unfortunately, due to an
unexpected change in the way that the Department of Education accepted
tax rate calculations, the CKSD was denied HIA funding between 2010 and
2012 causing them to have to reduce staff and delay critical curriculum
and facility updates. I was proud to work to include language in the
Every Student Succeeds Act that makes clear that the alternative tax
rate calculation used by CKSD is acceptable for determining HIA
eligibility and provided them some much needed relief for the years in
which they were deemed ineligible.
As you work to implement this law, how will you ensure that the
Impact Aid provisions are implemented in the best way possible so that
districts like Central Kitsap School District in Washington State and
others throughout the country get the support they need to provide a
quality education to their students?
Answer 1. The Department is appreciative of the hard work of you
and your staff to make critical changes to the Impact Aid program and
making permanent a number of the changes you had included in the
National Defense Authorization Act of 2013. Section 7003(b)(2)(F)(ii)
of the ESEA as amended by the ESSA, which affects school districts that
did not meet the average tax rate requirements for heavily impacted
districts for fiscal years 2010-15, took effect upon enactment in mid-
December 2015. A district such as Central Kitsap School District (CKSD)
that meets the criteria of the provision is permitted to use its
State's alternative tax rate methodology to retain eligibility for
2010-15, and in addition may use the same tax rate methodology when
applying for heavily impacted eligibility for fiscal years after 2015.
CKSD had already qualified and received a heavily impacted district
payment for fiscal year 2015 using the Department's methodology earlier
in 2015 prior to the passage of ESSA. After passage of the provision,
the Department worked diligently to implement it quickly with respect
to CKSD. Notes regarding the permissibility of the alternative
methodology have already been codified in the Impact Aid payment system
for the affected and future years, and the $14 million payment
referenced in ESSA was issued to the district on February 2, 2016.
Department staff is also diligently working on the other ESSA
Impact Aid provisions that are effective next year. For example, we
have already initiated programming changes to the payment system that
will enable implementation of the new hold harmless provision you
reference. Over 1,350 school districts affected by Federal activities
apply for Impact Aid annually. We take our responsibility to each of
these districts seriously and are working to ensure that all of the
Impact Aid ESSA provisions will be implemented with the same fidelity
and accuracy that were executed for this section of the law.
Question 2. A few weeks ago, I launched a tool to enable students
and families throughout the country to share their story and struggles
to afford higher education. In just a matter of weeks, I heard from so
many borrowers who shared how difficult it is to manage the crushing
burden of their student debt. One in four student loan borrowers are
currently in default or struggling to repay their loans.
Unfortunately, many borrowers have experienced problems getting
consistent answers and help from their student loan servicers--a
problem that has been well documented by both the U.S. Treasury and
Consumer Financial Protection Bureau. Fortunately, your Department and
these agencies together issued a ``Joint Statement of Principles on
Student Loan Servicing'' last year to improve student loan servicing
practices, promote borrower success, and minimize defaults.
Given that the Department is planning a new competition for Federal
contracts on student loan servicing this year, how will you ensure that
the student loan servicing process puts customer service front and
center, becomes more transparent, and guarantees that servicers are
held accountable for their business practices and compliance with the
law?
Answer 2. Over the past few years, and since the President signed
the Student Aid Bill of Rights memorandum in March 2015, the Department
of Education has worked with its partners across the Administration and
in the Consumer Financial Protection Bureau to improve service for all
student loan borrowers, and in particular, for the most vulnerable
borrowers. The Student Aid Bill of Rights included a number of projects
and deliverables, some of which have already been completed, some of
which are in progress, but on track to complete in the coming months,
and additional objectives designed to improve borrower service through
the servicing recompete.
In August, FSA released the recommendations from an interagency
task force on best practices in performance-based contracting to better
ensure that servicers help borrowers make affordable monthly payments.
As directed by the President's Memorandum, the task force reviewed
input from its members which consisted of the Departments of Education
and Treasury, the Office of Management and Budget, and the Domestic
Policy Council, last July. The task force also solicited input from a
wide range of other public and private stakeholders. These
recommendations will inform the process of recompeting our servicing
contracts prior to the expiration of the existing contracts in 2019.
In addition, Education, Treasury and the CFPB continue to work
together to ensure student loan borrowers are aware of and can have
affordable monthly payments. For Federal student loans, FSA and its
servicing contractors have been certifying and enrolling, on average,
over 5,000 borrowers per day into Income Driven Repayment (IDR) plans
over the past year. Enrollment in IDR plans has increased more than 50
percent over the past year and is at an all-time high.
On October 1, the U.S. Department of Education released a report on
Strengthening the Student Loan System to Better Protect all Borrowers,
which outlines a series of statutory, regulatory, and administrative
recommendations to safeguard student borrowers. The report, developed
in consultation with the Department of the Treasury and the Consumer
Financial Protection Bureau, builds on years of work by the
Administration to help Americans manage their student loan debt and
protect the most vulnerable borrowers.
The report includes key recommendations to protect Federal student
loan borrowers such as: increasing borrower protections in the Federal
student loan program; updating debt collection and offset; enhancing
Federal data-sharing to improve the Federal student loan borrower
experience; and strengthening Federal student loan servicing. The
report also proposed several steps to protect borrowers of private
student loans, which do not come with the same consumer protections and
benefits as Federal loans, including to allow private student loans
that lack sufficient repayment flexibility to be dischargeable in
bankruptcy.
The report also included an update on the development of a multi-
year recertification process for income-driven repayment plans. As with
any policy that provides access to taxpayer data, there are costs to
developing and operating a secure system with appropriate
authentication and controls, and mechanisms for secure communication
with third parties. Both Treasury and Education believe that, with
sufficient funding, an electronic multi-year certification system can
and should be developed to simplify the repayment process for many
borrowers in IDR plans.
In the coming months we expect to continue the work started under
the Student Aid Bill of Rights and outline a vision for a borrower
centric ecosystem ensures accurate and helpful service for borrowers
with Federal student loans.
Question 3. Under Secretary Duncan's leadership, States have
invested more than $1 billion dollars in expanding access to high-
quality preschool. I was proud to continue this work by authorizing
dedicated funding for early learning for the first time in ESSA.
How do you intend to continue the push to expand access to high-
quality preschool and how do you plan to work with HHS to ensure that
the Preschool Development Grants program is implemented effectively?
Answer 3. Thank you for your continued partnership and strong
leadership to ensure that every child has access to high-quality early
learning programs, including your sponsorship of the Strong Start for
America's Children Act, which closely resembles the President's
proposal to extend high-quality preschool to all children from low- and
moderate-income families. We have made tremendous progress toward
ensuring that more children gain the benefits of high-quality early
learning programs so that they come to school ready to learn. Forty-six
States and the District of Columbia fund preschool; five States provide
funding for every 4 year old and two States fund 3 year olds as well.
If confirmed, I intend to work hard to continue to expand high-quality
preschool for all children.
I am proud of the progress the Department in partnership with HHS
has made over the past several years. The Department's relationship
with HHS around early learning is strong and codified in three MOUs
that outline how the two agencies administer the Race to the Top-Early
Learning Challenge (RTT-ELC), which has significantly increased quality
in early learning programs and placed more at risk children in high
quality programs in 20 States; and the Interagency Policy Board, which
the agencies set up in 2010 to coordinate Federal early learning
programs and the Preschool Development Grants (PDG). In partnership
with HHS, we have awarded PDG grants to 18 States, in more than 230
communities, serving over 33,000 children in high-quality preschool
this year in schools, Head Start programs and public and private child
care centers.
Although funding authority in fiscal year 2017 will shift to HHS,
the two departments will continue working closely together to jointly
administer the program and will develop a Memorandum of Understanding
that includes joint staffing of PDG implementation and ensures a smooth
transition for all grantees. In the President's fiscal year 2017 budget
request, we propose that $250 million be used to fund the fourth year
of the 18 States, while using the remaining money to fund State efforts
to create preschool infrastructure, as called for in ESSA. HHS and ED
will continue joint administration of the program and together, work
with grantees to continue expanding high quality preschool for our
youngest learners.
Question 4. In Washington State, there has been a growing number of
individuals and families experiencing homelessness. In fact, in
November, the mayor of Seattle declared a State of emergency to combat
homelessness. Many of these families have children who attend public
schools and face challenges due to their lack of school stability. In
regards to higher education, students experiencing homelessness face
unique barriers applying for college, attending, and completing their
degree.
Under your leadership, what are some ways the Department will be
working to help students struggling with homelessness get a quality
education and easing the pathway for these students who want to pursue
a higher education?
Answer 4. Students experiencing homelessness are one of the most
high-risk and vulnerable student populations we serve. We take our
obligations to meeting their needs seriously. The programs that we
administer include requirements to assist homeless students. For
example we administer the Education for Homeless Children and Youth
(EHCY) program authorized by the McKinney-Vento Homeless Assistance
Act, which was significantly enhanced by ESSA amendments. In addition,
we provide technical assistance to States and school districts, and
engage in an array of Federal interagency groups to coordinate efforts.
The $15 million increase proposed for EHCY in the President's
fiscal year 2017 budget reflects the Administration's commitment to
help States and LEAs address the 45 percent increase in the number of
enrolled homeless students reported by States since 2008. The requested
increase--from $70 to $85 million--would help ensure that States and
LEAs can provide the services needed to improve educational outcomes
for homeless children and youth, who face significant barriers to
success. In addition, the Department allocates McKinney-Vento funding
annually by formula to States based on the State's proportion of the
ESEA Title I, Part A Federal allocation the State receives. Generally,
States must distribute no less than 75 percent of their annual
McKinney-Vento allocation to local school districts in subgrants, which
are awarded competitively based on need and the quality of the
application.
As you know homeless students have numerous rights under Federal
law and we work to ensure that every school district in the country has
a school district liaison who is aware of these rights and ensures
these obligations are met. We are fortunate to have the National Center
for Homeless Education (NCHE) serve as the Department's technical
assistance and information center. NCHE provides research, resources,
and information enabling communities to better address the educational
needs of children experiencing homelessness. NCHE also supports SEA
staff, school district liaisons, educators, and others by providing
training online, at regional and national conferences, and other
events. NCHE also has a wealth of technical assistance resources
available in print or electronic format.
We are also working to ensure that homeless youth are able to
obtain a higher education. Last year, Federal Student Aid issued a Dear
Colleague Letter to clarify institutional and applicants' roles and
responsibilities related to title IV dependency determinations for
unaccompanied homeless youth. Additionally, during the annual Federal
Student Aid conference, FSA hosts a session titled ``Understanding
Federal Aid Policy and Practice for Unaccompanied Homeless Youth.''
This session explores the unique needs of the homeless student
population and offers ways to implement financial aid policies and
practices on their behalf. The session also provides information about
the education and human service professionals with whom financial aid
administrators can collaborate to help these students navigate the
post-secondary education system.
Finally, ED staff actively participate in and contribute to
numerous interagency groups. I am pleased to co-chair the U.S.
Interagency Council on Homelessness (USICH). USICH coordinates the
Federal response to homelessness, working in close partnership with
other Cabinet Secretaries and other senior leaders across our 19
Federal member agencies. By organizing and supporting leaders such as
Governors, Mayors, Continuum of Care leaders, and other local
officials, we drive action to achieve the goals of Opening Doors, which
was released in 2010. Opening Doors is the Nation's first-ever
comprehensive strategic plan to prevent and end homelessness among all
populations and is a roadmap for Federal agency action.
Question 5. One issue I am deeply concerned about is discrimination
against students based on gender identity. I have been pleased to see
the U.S. Department of Education's Office of Civil Rights take action
to investigate individual complaints by transgender students against
school districts for title IX violations, and pursue resolution in
those cases. However, I am deeply concerned about the disturbing and
growing trend of discrimination against transgender students by
schools, districts, and, most recently, States. For example, in
February, the Texas University Interscholastic League decided to
disregard a student's gender identity when determining participation in
athletics, and the South Dakota legislature passed a law prohibiting
schools from providing equal treatment to transgender students. These
actions are in direct conflict with non-discrimination requirements
under Title IX of the Education Amendments of 1972.
As you work to ensure the promise of equality in title IX is
fulfilled, how will you address this discrimination against transgender
students?
Answer 5. The Department is committed to safe and supportive
environments for all students, including transgender students. In
various policy guidance documents addressing sex discrimination under
title IX, the Department's Office for Civil Rights (OCR) has informed
educational institutions that OCR interprets title IX and its
regulations to prohibit discrimination on the basis of gender identity
and transgender status. The Department of Justice and the Department of
Education have taken the same position in litigation. As you note, OCR
has also investigated complaints by individual students, found
violations when a school has failed to treat students consistent with
their gender identity, and entered into voluntary resolution agreements
with school districts to address those violations.
senator sanders
Question 1. Dr. King, I don't think that this will come as news to
you, but former Secretary of Education Arne Duncan and I disagreed on a
number of issues. While we both held the same belief that every child
has a right to a high-quality education, we had different beliefs on
how to achieve this goal. Can you tell me how your tenure as Education
Secretary will be different than that of Secretary Duncan? What
specific policies and approaches will set you apart from your
predecessor? Relatedly, under your tenure which policies or approaches
will be a continuation with Secretary Duncan's tenure?
Answer 1. While we have a long way to go in ensuring the promise of
equity and excellence for all of America's students, we have made
critical progress over the last 7 years, and thanks to the work of this
committee, the Obama administration, and our Nation's educators and
parents, there are many reasons to feel hopeful.
Last year, we achieved the highest high school graduation rate
we've ever had as a country--82 percent. This progress was driven in no
small part by significant reductions in the dropout rate among African-
American, Latino, and low-income students. Since 2008, we have halved
the number of ``dropout factory'' high schools. A million more African-
American and Latino students are in college today than when the
President took office. Tens of thousands of children now have access to
high-quality preschool and millions more students have access to higher
education.
I am grateful to Secretary Duncan for his unwavering commitment to
America's students, especially those who have too often been
underserved. And I hope to continue that unrelenting focus on
excellence and equity.
At the same time, the passage of the Every Student Succeeds Act
ushers in a new era in American education--and an opportunity for a
reset in the national dialog. Over the past decade, our educational
system has been through a period of enormous change. Change is hard,
and it often brings with it hard conversations and damaged
relationships. I intend to seize this new moment in national policy to
help bring about a reset in a national dialog that has, despite good
intentions, been too often characterized by more heat than light. All
of us--at the local, State, and Federal level--have to take
responsibility for the climate that exists. And all of us must do
whatever we can to change it.
Question 2. I do not believe that funding for the essential
elements of a high-quality education--pre-kindergarten, well-rounded
course offerings, safe and healthy schools, and more--should be up for
competition. Rather these essential elements should be guaranteed and
exist in every school. Can you share your philosophy on formula grants
and competitive grants for the essential components of a high-quality
education? Small, rural States like Vermont often do not have the
resources and capabilities to aggressively pursue competitive funding
like larger States, putting them at a significant disadvantage. If the
Department of Education must rely on competitive grants for some
education programs due to constrained appropriations, what safe guards
are in place to ensure that small rural States are on an equal footing
with larger States that have more administrative resources at their
disposal?
Answer 2. I appreciate the concern that you raise and believe that
it is important for the Department to take into account the unique
needs and characteristics of rural school districts. We are committed
to ensuring that all of our programs serve rural students well. Over
the past several years we have worked hard to ensure that our
competitive reform programs are fair to rural States and communities.
For example, the Promise Neighborhoods program made implementation
grants to projects serving rural communities (Indianola Promise
Community in Mississippi, and the Improving Rural Appalachian Schools
project in Berea, KY). Additionally, through our Investing in
Innovation (i3) grant program more than one-fifth--34 out of 156
awards--are serving rural areas, thanks in part to the use of
competitive and absolute priorities that help highlight rural
proposals. i3 projects serving rural areas have received about one-
quarter (26 percent) of all i3 funding since 2010--$336 million out of
$1.3 billion.
Question 3. As Secretary, how do accomplish the goal of serving the
diverse student body of our Nation--from children in large urban
centers to those in rural school districts? For small and rural States
like Vermont, what additional supports will your Department provide?
Will there be additional technical assistance, competitive grant
priorities for small or rural States, appropriate flexibility that does
not compromise Federal guard rails for States in implementing the new
Elementary and Secondary Education law, aid in implementing the
assessment pilot in the new law, or other supports?
Last, what experience and lessons learned from serving a
geographically and demographically diverse State like New York will you
bring to your tenure as Secretary?
Answer 3. We recognize that nearly 60 percent of LEAs and one-third
of schools are in rural areas, and that 25 percent of all students
attend rural schools. That makes it really important for the Department
to take into account the unique needs and characteristics of rural
schools districts. The Department has taken concrete actions to level
the playing field for rural communities in grant competitions. Over the
past 5 years the Department has included priorities for rural
applicants or rural-serving applicants in approximately 3 dozen
competitions across 10 programs.
There are a number of provisions in the ESSA that will help us to
address the unique need of rural communities. Foremost, we are taking
our responsibility under section 5005 of the ESSA aimed at increasing
the involvement and input of rural schools and districts in developing
policies and regulations for Department of Education programs very
seriously. As with most aspects of ESSA implementation, we are in the
early stages of developing our plans for meeting the requirements of
the new law, including the initial review due to Congress within 18
months. We will ensure that the final report will include
recommendations for increasing the role of rural stakeholders in
Department policies and regulations. Additionally, the Department will
support rural communities through implementation of programs in ESSA
such as Title IV, Part A, which provides opportunity for districts and
schools to use funds under the Supporting the Effective Use of
Technology section to expand digital learning opportunities in rural,
remote, and underserved areas. In addition, the Department will execute
the additional provisions in the ESSA including the required set-asides
for discretionary grants including: the STEM Master Teacher Corps
grant; the Education Innovation and Research grant where there is a 25
percent rural set-aside for rural grantees; and the Promise
Neighborhoods and Community Schools grant which requires that no less
than 15 percent of the funds be awarded to entities that propose to
carry out activities in rural areas.
As Chief State School Officer in New York, navigating a State with
over 700 districts, more than 4,500 schools, and a majority minority
student population, I understood that a one-size-fits-all model from
Albany did not work. To meet the needs of communities that ranges from
dense urban to very rural, it was essential to have policies, rules and
strategies that supported and protected our highest need students while
still allowing for local flexibility and context, by listening to local
practitioners, investing in local and scalable promising practices,
differentiating based on need, and adjusting practices along the way.
If confirmed, I plan to apply these same principles and respect local
practice while still protecting the rights of all students.
Question 4. The Every Student Succeeds Act (ESSA), which I
supported, moves away from the one-size-fits-all, test and punish
approach of the No Child Left Behind law, which simply did not work for
our communities. Instead of just focusing on test scores, ESSA includes
multiple measures in evaluating how our students and schools are
performing. In implementing this law, how will you ensure that test
scores do not again become an outsized metric in which to judge how our
students, schools, and teachers are performing?
Answer 4. The Department has made clear, most recently through its
implementation of ESEA flexibility and the President's Testing Action
Plan, that test scores should be just one of multiple measures used by
statewide accountability systems to assess student, teacher, and school
performance. And we agree that ESSA provides States with the
opportunity to take a broader look at the measures that should be
included in school accountability systems and to consider a rich array
of data on school performance when differentiating among schools,
including, for example, English language proficiency for English
learners, student growth, graduation rates, chronic absenteeism,
college- and career-ready measures, and school climate. While giving
States new flexibility to add indicators to their accountability
systems for identifying low-performing schools, including a new school
quality and student success indicator that encourages States to
consider a wide range of academic and non-academic factors, ESSA also
requires that certain indicators, such as academic achievement,
graduation rates, and English language proficiency, carry
``substantial'' weight individually and ``much greater'' weight in the
aggregate relative to other measures of school quality and student
success. The Department believes that States will work hard to find the
right balance among the multiple indicators required by the new law,
and plans to provide guidance and technical assistance to States in
this area as they develop plans for implementing the ESSA.
Question 5. Today, young people around the country are shouldering
outrageous amounts of student loan debt that is holding them back on
almost all fronts--purchasing a home, starting a family, saving for
retirement, and more. Shockingly, many for-profit schools have made an
already challenging terrain even more difficult for our most vulnerable
students by saddling them with debt and no degree, or a degree that is
not worth the paper it is printed on. I am pleased that the Department
has announced the creation of the Student Aid Enforcement Unit, and I
hope it will take aggressive action to protect students from predatory
and illegal practices.
Under your watch, what policies will be implemented to ensure more
students are protected from unscrupulous for-profit schools? I am aware
that the Department is currently undergoing a negotiated rulemaking to
determine how best to provide debt relief to students defrauded by for-
profit schools. The draft rules seem more concerned with limiting the
``cost'' of the discharges to the Department than giving students a
chance to start over, even when our student loan programs are on track
to make $67 billion in profits over the next decade.
What will you do as Secretary to help these students and minimize
the burdens for students to get the needed debt relief they deserve?
Answer 5. The Department continues its longstanding commitment and
efforts to ensure that we help reduce the burden faced by student loan
borrowers and make post-secondary education more affordable and
accessible to all American families. I will work to ensure that serving
our student borrowers remains a top priority, and that we are doing all
we can as an agency to serve and protect students and taxpayers.
The newly created Student Aid Enforcement Unit, and the interagency
task force focused on the accountability for poor performing
institutions, are key mechanisms that the Department has created toward
this goal, and will be a high priority during my tenure. The Student
Aid Enforcement Unit will focus on increasing the capacity of the
Department to respond quickly and efficiently to allegations of illegal
actions by higher education institutions. The Enforcement Unit will
include an investigations division that focuses on identifying
potential misconduct or high-risk activity among higher education
institutions and protecting Federal funding. The purpose of the task
force is to provide a means for Federal agencies to share strategies
and collaborate on the most effective ways to produce complementary
protections for the public. These include streamlining disclosures,
developing effective consumer tools, and sharing program expertise to
identify best practices. I look forward to working with Federal Student
Aid, our agency partners, and Congress to further this critical work.
We are also taking steps in other ways, such as implementing our
Gainful Employment regulations to hold career schools accountable for
providing quality education and training to students and making sure
they are not saddling students with high levels of debt that they will
struggle to repay. In addition, as you note, the Department began a
negotiated rulemaking process to revise the borrower defense to
repayment regulations to ensure that the regulations are working both
for students and for taxpayers. Where students have been harmed by
fraudulent practices, we are fully committed to making sure they
receive the relief they are entitled to, and where possible, we will
recover that money from the schools that created the harm.
senator franken
Question. When I talk to employers around Minnesota, they often
tell me that they're starving for workers who have a good grasp of
science, technology, engineering, and math (STEM). And this isn't just
a problem for Minnesota--it's an issue all over the country.
Nearly all of the top 30 fastest growing jobs nationwide require
STEM skills. But our kids are lagging behind the rest of the world, and
part of the problem is that there's a shortage of effective STEM
teachers. That's why I wrote the STEM Master Teacher Corps Act to
recruit top-notch STEM educators and keep them in the classroom. This
program would provide States grants to recruit, recognize, and reward
expert STEM educators. These networks of innovative STEM educators
would mentor their peers and participate in professional development--
while receiving extra pay for their work.
I'm pleased that there is an optional pot of money in ESSA for
training STEM teachers that is based on my bill, and ESSA leaves it up
to the Secretary of Education to award these grants to States. If
confirmed by the Senate, how do you plan to support STEM educators, and
will a STEM Master Teacher Corps be included in that effort?
Answer. STEM education continues to be a key priority for our
Department, and is incorporated into several initiatives, from early
learning through college and career. As part of those efforts, a STEM
Master Teacher Corps can play an important role in bolstering STEM
equity and excellence. The idea of a STEM Master Teacher Corps
originated from a recommendation from the President's Council of
Advisors on Science and Technology and has been a priority of the
Administration's since the President called for the creation of a
national STEM Master Teacher Corps that would enlist America's best and
brightest science and math teachers to improve STEM Education. The
Department proposed funding to support a STEM Master Teacher Corps in
multiple budget requests, beginning in 2012 and including most recently
a $10 million request to continue this work in the 2017 budget. In
addition, the Department is proposing a number of investments to
support the training and development of STEM educators.
For example, the Computer Science for All initiative, a new
investment proposed in the 2017 budget, would provide $4 billion over 3
years in mandatory funding and $100 million in discretionary funding to
ensure access for all students to high-quality instruction in computer
science, and would include support and training for computer science
teachers and support staff. Through the Teacher and Principal Pathways
program, the Department has proposed $125 million to support teacher
preparation programs and nonprofits partnering with school districts to
create or expand high-quality pathways into the teaching profession,
particularly into high-need schools and high-need subjects such as
STEM. The Department also seeks to use existing resources toward the
important work of supporting STEM educators; we leveraged $1.2 million
from the Teacher Incentive Fund's National Activities set aside to
create the foundations of a robust STEM Master Teacher Corps during the
current fiscal year. In addition, the Department convened expert
teacher leaders to build and assemble resources designed for States,
districts, and educators to advance STEM teaching. Later this summer,
the Department will publish a Web site that hosts these tools along
with additional resources to support STEM educators.
senator bennet
Question 1. The reality of Washington, DC, is divorced from the
reality of our schools, students and educators. Sometimes what we try
to do from Washington hurts more than helps, but it doesn't happen out
of vindictiveness or spite. Washington simply doesn't understand the
reality of what is happening in schools, especially those that educate
students living in poverty. How will your experiences as an educator
and a school leader affect your approach and decisions in this job? How
will you ensure that the Department of Education is connected to the
reality in our classrooms?
Answer 1. As a former teacher, principal, and State commissioner, I
know from personal experience that the best ideas come from classrooms,
not conference rooms.
The Every Student Succeeds Act rightly shifts the locus of
decisionmaking back to States and districts--and away from the one-
size-fits-all mandates of No Child Left Behind--even as it preserves
the critical Federal role in constructing guardrails to protect civil
rights.
As the Department of Education undertakes implementation of the new
law and the rest of our critical work, I recognize that it is hugely
important for us to remain connected to the hard work that is happening
on the ground every day. My team and I will continue to do regular
outreach to stakeholders through engagement at the Department, and
across the country. In addition, the Department's Teaching Ambassador
Fellows and Principal Ambassador Fellows have played a critical role in
anchoring our work here in Washington DC to educators in the field, to
gain their perspectives and their day-to-day experiences in the
classroom.
In my first weeks as Acting Secretary, I launched the ``Opportunity
Across America'' tour to see what's working on the ground and meet with
students, teachers, principals, educators, parents, and community
leaders in five different cities. Since then I have had regular
opportunities to visit schools around the country, something I will
continue to do.
I will continue to draw on both my own personal experience as a
teacher, school leader, and State commissioner as well as these
frequent interactions to inform our work in the weeks and months to
come.
Question 2. When I was a superintendent, I found the Department of
Education to be a compliance driven entity that was often unhelpful and
sometimes even a bureaucratic barrier to the change we were trying to
make in Denver. That needs to change, and the Department needs to
become a source of assistance to States, districts, and schools. As
districts and States begin to implement ESSA, technical assistance,
best practices, and even partnerships in improvement efforts have never
been more important. What is your plan to make the Department useful
for States and districts, to make it more responsive, and to support
the efforts of States and districts to change and innovate? How will
you encourage districts and States to take advantage of the
opportunities in ESSA for change, improvement, and innovation?
Answer 2. The Department has taken steps to ensure more
partnership-oriented relationships to support shared goals of improving
student achievement and closing achievement gaps. For example, through
the newly created Office of State Support (OSS) within the Office of
Elementary and Secondary Education (OESE), the Department supports
State-led reform efforts, consistent with current law, across several
programs. Whereas States used to have to deal with multiple program
teams in the Department, now each State has dedicated points of contact
in the OSS who are in regular communication with States, partnering
with them across Federal programs to support implementation and
continuous refinement of reform efforts. This approach will continue as
the Department works to support States in transitioning to and fully
implementing the provisions of the ESSA. As another example, the Office
of Special Education Programs (OSEP) uses a Results Driven
Accountability monitoring and support system that focuses on improving
student results. States identify measurable results to improve and
design comprehensive plans to support LEAs in making that improvement.
OSEP and OSS are collaborating in the implementation of this results-
driven model. In recent joint visits to States to provide support in
implementing improvement plans, State staff commented on the
collaborative approach both within ED and between ED and States.
The Department has also invested in programs that drive innovation,
and encourage learning and improvement in the sector through rigorous
evaluation. For example, the Investing in Innovation (i3) program,
which has supported several projects in Colorado, offers resources and
support to entrepreneurial educators to develop and scale their
approaches. i3 also requires every project to measure their performance
and outcomes, which will ultimately yield at least 64 Randomized
Controlled Trial (RCT) evaluations across the first five cohorts of i3
grantees. These RCTs, which are considered the ``gold standard'' of
evidence, include valuable lessons for local and State leaders that are
building innovative models of their own. The Department will continue
supporting these district and State-led efforts--and disseminate the
knowledge that they produce--under programs in the Every Student
Succeeds Act, including the Education Innovation and Research program.
Question 3. Our education system should be a source of opportunity
and a path to advancement and social mobility for students across the
country. But for too many of our children living in poverty, our
current education system is reinforcing the income inequality in this
country, rather than creating the opportunity for our kids to succeed
in life. At its core, ESSA is a civil rights law, focused on improving
equity across the country and helping ensure our kids in high-poverty
communities receive a great education. But we still have a long way to
go to reach a place where a child's zip-code doesn't determine the
quality of his or her education. What do you see as the biggest
challenges in addressing educational inequity? What are the most
important things States and districts can do to improve education
equity, as they work to implement ESSA?
Answer 3. Equity in education is a core tenet of the Federal
Elementary and Secondary Education Act (ESEA), and I am pleased that
Congress has reinforced this principle in the Every Student Succeeds
Act (ESSA)--equity is the impetus for nearly everything we do at the
Department. From its inception, ESEA was a civil rights law intended to
ensure, in the words of President Johnson, that ``full educational
opportunity'' should be ``our first national goal.'' ESSA honors the
law's civil rights heritage, and the responsibility to ensure that its
implementation also honors that heritage rests with each State,
district, and school--and at the Federal level. One of the biggest
challenges is recognizing and understanding where and how some students
may be falling behind or not receiving the same opportunities that
other students receive. Once these problems are identified, the
challenge is to address them promptly and effectively so they do not
hold back multiple cohorts of students. Accordingly, in implementing
ESSA, State and local leaders must ensure that they have timely and
accurate information about student performance across their schools and
disaggregated by subgroup, and they have systems of support and
intervention to ensure that problems are swiftly addressed. The new law
makes it clear that States and districts should establish policies and
programs that target resources to the most disadvantaged and should
take care to ensure true comparability of resources, both across and
within districts, that levels the playing field and allows historically
disadvantaged students, particularly those from low-income families,
students with disabilities, English learners, and students of color, to
have access to excellent educators, challenging and enriching course
offerings and extracurricular activities, and modern and relevant
instructional materials. The role of the Federal Government in meeting
these challenges is to provide States the guidance and technical
assistance they need, while monitoring and enforcing the law's
requirements.
Question 4. For many families, the cost of college has become a
prohibitive barrier to receiving a great education. In Colorado,
tuition at several public 4 year colleges has increased by more than 30
percent in just the last 5 years. At the same time, the Federal
Government has set up barriers through complexity and bureaucracy that
make it more difficult for kids to apply for aid. We need to address
these problems and make it easier for our colleges, universities, and
post-secondary providers to innovate and find new solutions to make
college more affordable and accessible for our students. As we work to
re-authorize the Higher Education Act and potentially consider a
package on higher education this year, what in our current budget
climate could we include to help drive down the costs of college and to
encourage greater support for innovation by our high-quality schools?
Answer 4. Every hard-working student deserves a real opportunity to
earn an affordable, high-quality degree or credential that leads to
greater economic security and civic engagement. But too many recent
college graduates feel the weight of their student loan payments
holding them back from fulfilling their full potential, and far too
many prospective college students feel as though they are priced out of
the education they need to set themselves up for future success. Since
the beginning of this Administration, President Obama has focused on
expanding college access, improving college affordability and regaining
our leadership internationally in college attainment. Our
Administration has taken strong action to ensure college stays within
reach of American families, doubling investments in tax and scholarship
aid by increasing investments in Pell grants and creating the American
Opportunity Tax Credit, and making student debt more manageable by
providing loan repayment options that cap payments based on income.
Building on those efforts, the President's America's College
Promise proposal would make 2 years of community college free for
responsible students, effectively reducing the cost of obtaining a
bachelor's degree to about half. America's College Promise also
provides grants to 4-year HBCUs and MSIs to provide more new or
transfer low-income students with up to 2 years at a 4-year college at
zero or significantly reduced tuition. Further, in addition to seeking
full funding for the Pell grant maximum award and continuing to index
the grant to inflation indefinitely in this year's budget request, the
Administration is making it easier for students to access Federal
financial aid. In September, President Obama announced significant
changes in the process for filing FAFSAs starting in the 2017-2018
award year, allowing students to apply earlier and using ``prior-
prior'' income information. Both of these changes will streamline the
student aid process and provide families with an earlier picture of
their aid eligibility more consistent with the timeline for applying
for college. For too long, though, America's higher education system
has lacked a focus on outcomes and value for students and families--the
degree students truly can't afford is the one they don't complete, or
that employers don't value. That's why, in this year's Budget Request,
we proposed a number of completion-focused reforms, including Pell for
Accelerated Completion and the On-Track Pell Bonus. I look forward to
working with you and the committee to address these critical issues.
senator whitehouse
Question 1. During the implementation of ESSA how will you work to
support greater innovation, unshackling schools and teachers, so that
they have higher degrees of autonomy and can actually act to improve
academic outcomes?
Answer 1. We know that the best ideas about education always come
from educators closest to students--those in schools and districts. We
encourage States, LEAs and schools to use the flexibility they have
under the ESSA to design school accountability and support systems that
work best in their local context while being attentive to the serious
equity issues that are too often present in our schools. We will
continue our efforts to support the development, evaluation, and
scaling of innovative practices through the new Education Innovation
and Research authority, which is the successor to the Investing in
Innovation (i3) program and a key means for the Department to balance
the ESSA's recognition of the need to use both innovation and evidence
to ensure effective use of taxpayer dollars in improving student
outcomes. In addition, the Institute for Education Sciences will
continue its work through the Regional Educational Laboratories and
other efforts to build our collective knowledge about what works.
Question 2. In ESSA, I authored several provisions to help keep
kids who encounter the juvenile justice system stay on track, including
having States establish procedures around timely transitions, upon
release, to schools or re-entry programs, and to better facilitate
transferring academic credits and records between school and juvenile
justice facilities. Is the Department open to issuing regulatory
guidance to States on best practices around these issues?
Answer 2. Students who encounter the juvenile justice systems are
one of the most high-risk and vulnerable student populations we serve.
Thank you for all of your work and leadership in helping these students
stay engaged and on track to graduate college- and career-ready.
We take our obligations to meeting their needs seriously. The
Department has issued guidance over the past several years on juvenile
reentry, from best practices to putting the spotlight on facilities and
programs around the country with good reentry outcomes. Last summer,
the Department released a guidance package specifically addressing
issues facing students in juvenile detention facilities--which included
clarifying students' rights under the Individuals with Disabilities
Education Act while they are in correctional facilities. We plan to
continue issuing technical assistance on this complex and inherently
inter-agency challenge. These products are available at http://
www.neglected-delinquent.org/topic-areas/transition.
In April 2013 the Department issued guidance on juvenile justice
records transfers through a myth buster which explains what is required
and permissible under the Family Educational Rights and Privacy Act. In
addition, at a correctional education symposium we hosted in 2014,
along with DOJ, ED issued guidance on having well-coordinated
transition and reentry plans for youth.
The ESSA is a big and complex law, with a lot of new pieces and new
opportunities for States, districts and their students. As I have
mentioned, this is the beginning of a long process, and we want to make
sure we are supporting States and districts as they transition from
NCLB to ESSA. We appreciate your attention to this critical issue and
will continue to listen to and are open to feedback from stakeholders
on guidance priorities for ESSA.
In the meantime, the Department continues to strive to improve
juvenile reentry education outcomes through our monitoring and
performance management of the ESSA Title I, Part D and IDEA, Part B
programs as they pertain to juvenile detention and corrections
programs.
Question 3. In ESSA I also authored provisions requiring States to
outline how they will work to better support transitions for students
from middle school to high school, and better identify and support
middle schools students who are at-risk of falling off track. Is the
Department open to issuing regulatory guidance to States on best
practices on how they can best support middle school students at-risk?
Answer 3. I agree, the transition from middle to high school is one
that can be critical to the future success of a student and is an
important piece for States and districts to consider as they work to
ensure that all students graduate high school college- and career-
ready. As a high school teacher, I saw the critical importance of
middle school and that was what inspired me to start a high-performing
middle school to ensure students had the foundational skills they
needed to succeed. Thank you for your leadership and interest in
supporting middle school students. We will take your recommendations
under advisement as we continue to engage with and hear from
stakeholders on the implementation of the ESSA and are working closely
to support States and districts as they prepare to implement the new
law.
Question 4. Question 23 on the FAFSA asks about a student's
conviction for possessing or selling drugs. Drug convictions are one of
the only infractions which can cause students to lose financial aid
eligibility. And more than 300 organizations have called for repealing
the question and the aid penalty because it is a collateral
consequence. In 2005, the congressionally created Advisory Committee on
Student Financial Assistance recommended Congress remove the drug
question FAFSA, calling it ``irrelevant'' to eligibility. In an effort
toward both greater fairness and simplification do you support
eliminating the drug question on the FAFSA?
Answer 4. As you know, Congress included in the Higher Education
Act (HEA) a requirement that eligibility for student aid be suspended
for certain drug-related offenses. I know that many are concerned about
this policy and the implications it has, not only in terms of the
barriers it presents to applicants in submitting applications, but also
in the inequity of imposing a consequence that is effectively targeted
at lower- and middle-income students who, unlike their wealthier peers,
are more reliant on Federal student aid in accessing a higher
education. In addition, I am aware of the questions about whether the
policy actually helps to deter drug use. As a result of these issues,
the upcoming reauthorization of the HEA provides a great opportunity to
the Department to work with Congress in evaluating the efficacy of this
policy and whether it should be removed from the HEA.
Question 5. The Department of Education is currently in the midst
of negotiated rulemaking on borrower defense to repayment. I am
concerned that the Department's chief concern in this seems to be the
Federal fiscal impact of forgiving loans and not that students are
currently on the hook for loans they took out to go to schools that
were engaged in misrepresentation and fraud. I believe that first and
foremost the Department needs to focus on is setting up a fair process
for students who are in debt and who were wronged by their school. In
this rulemaking process is the Department's primary concern providing
relief to student borrowers or the Federal fiscal impact of forgiving
loans? How will you be weighing those two issues in this rulemaking?
Answer 5. This Administration is committed to ensuring that
students are protected from unscrupulous institutions that misrepresent
educational opportunities, and holding institutions accountable for
actions that violate the law. While many colleges play a critical role
in helping students succeed in their educational and training pursuits,
the unfortunate reality is that some of America's colleges are failing
to provide the education and training promised to advance students'
careers. Rather than providing students with promised quality
education, some institutions have only left students with significant
debt and few job prospects due to the institutions' actions or
omissions. Not only does this jeopardize the students' future, but also
puts the taxpayers' investment at risk. For those reasons, last year
the Department began the negotiated rulemaking process to revise the
borrower defense to repayment regulations to ensure that the
regulations are working both for students and for taxpayers. Where
students have been harmed by fraudulent practices, we are fully
committed to making sure they receive the relief they are entitled to,
and where possible, we will recover that money from the schools that
created the harm to ensure that colleges understand they will be held
accountable for any wrongdoing.
senator warren
student loan servicing
Question 1. In your nomination hearing, you mentioned servicer
recompete as an opportunity to improve student loan servicing.
Regarding the recompete of student loan servicing contracts:
What is the current timeline for announcing recompete of the Direct
Loan servicing contracts? Will the new servicer contracts include
specific servicing standards and borrower protections? If so, please
describe how the Department will write those standards and protections.
If so, will the Department publish draft standards and protections for
public comment? If so, will these standards and protections be stated
in the publicly available contracts? If so, will borrowers be able to
enforce the standards?
Answer 1. The Department is committed to supporting borrowers and
strengthening student loan servicing is a key priority for the
Administration. We expect to begin the procurement process this fiscal
year. New contracts will include specific servicing standards, as well
as a requirement to comply with all Federal and State consumer
protection laws. These standards will reflect the President's vision
for student loan servicing outlined in the Student Aid Bill of Rights
and include input from an interagency task force that included the
Department of the Treasury and the Consumer Financial Protection
Bureau, as well as responses to a Request for Information and
conversations with borrowers, schools, consumer advocates, loan
servicers, and other program participants. While procurement law and
regulations prevent us from publishing specific contract provisions
prior to the release of the final contract, the Department has greatly
benefited from the public input received to date. Also, the Department
plans on providing opportunities for additional public input in the
coming weeks on ways to further strengthen the student loan borrower
customer experience. Additionally, a key goal of the Department's
efforts include ensuring strong borrower protections are available to
allow borrowers the opportunity to reach out to the Department in cases
where standards are not met to see their concerns resolved, and will
have all rights available to them under the law to enforce violations
of consumer protection laws. We look forward to working with your
office throughout this process.
Question 2. If confirmed, will you commit to barring any servicer
under investigation or any servicer that owes fines from previous
investigations from competing in the new recompete process? If not, why
not?
Answer 2. Under Federal statutes such as the Competition in
Contracting Act (41 U.S.C. 253), the Department is not allowed to
exclude specific vendors from submitting a proposal for a solicitation
issued for a full and open procurement. Consistent with the Federal
Acquisition Regulations, however, the procurement process includes a
formal determination of responsibility prior to any award. This
determination is conducted by the contracting officer and explicitly
includes an assessment of whether the potential vendor has a
satisfactory record of integrity and business ethics. If this
assessment determines that the prospective vendor does not meet
required standards of integrity and ethics, the vendor would not
receive an award.
Question 3. How many full-time employees spend at least 50 percent
of their time overseeing the department's loan servicers' compliance
with Federal and State rules and laws?
Answer 3. There are currently 84 full-time staff whose primary
responsibility is conducting oversight of private collection agencies
and servicers. Most of these staff focus on compliance with contractual
requirements, which include adherence to Federal and State laws.
Federal Student Aid's Financial Institution Oversight Service
(FIOS) provides oversight of guaranty agencies, lenders, and servicers
participating in the Department of Education Federal Family Education
Loan (FFEL) Program. In addition, FIOS oversight responsibilities
include reviewing the Department's Title IV Additional Servicers
(TIVAS) and Not-for-Profit (NFP) Servicers that service Department-held
student loans and Private Collection Agencies (PCAs) that service
Department-held defaulted student loans.
Question 4. In 2015, the Department released repayment rate data
for institutions. These data represents a huge step forward in exposing
how our students and borrowers are struggling to repay their debts. A
2016 report by the Institute for Higher Education Policy \1\ indicated
substantial variation in repayment rate by student loan servicer.
Please provide repayment rate data that were included on the college
scorecard disaggregated by each of the student loan servicers in the
Direct Loan program.
---------------------------------------------------------------------------
\1\ http://www.ihep.org/sites/default/files/uploads/docs/pubs/
making_sense_of_student_
loan_outcomes_paper.pdf.
---------------------------------------------------------------------------
Answer 4. The Department is working hard to make more information
available to the public about the Federal student loan portfolio. While
we appreciate the interest in repayment rates disaggregated by student
loan servicer, those data are not readily available at this time.
Through the FSA Data Center, however, the Department has released in
recent years new performance data on the Federal student loan portfolio
disaggregated by student loan servicer, including the loan status of
each servicer's portfolio, delinquency rates, as well as repayment plan
usage for the borrowers in each servicer's portfolio.
Question 5. More than 6 years ago, the Department of Education's
Inspector General (IG) found that Navient illegally overcharged the
Federal Government for subsidies on government guaranteed Federal
student loans.\2\ In September 2013 the Department of Education issued
a final determination, agreeing that Sallie Mae had overcharged
taxpayers, and instructed Sallie Mae to change its billing
practices.\3\ To date, the Department of Education has still not
recovered these funds, and according to Navient's public SEC filings,
the Department has not ordered the immediate return of the funds.
Instead, the Department of Education has given multiple extensions to
Navient.\4\
---------------------------------------------------------------------------
\2\ Office of Inspector General, Department of Education, Special
Allowance Payments to Sallie Mae's Subsidiary, Nellie Mae, for loans
Funded by Tax-Exempt Obligations, Final Audit Report, August 2009
https://www2.ed.gov/about/offices/list/oig/auditreports/fy2009/
a03i0006.pdf.
\3\ James W. Runcie, Chief Operating Officer, Federal Student Aid,
Letter to Senator Elizabeth Warren, December 9, 2013.
\4\ Navient has disclosed to its investors that ``[t]he last date
to file an appeal in this matter has been extended by ED several times
and is currently November 12, 2015.'' Navient, Form 10-Q, Quarterly
Report, October 30, 2015 https://investor.shareholder.com/navi/
secfiling.cfm?
filingID=1193125-15-360320&CIK=1593538.
---------------------------------------------------------------------------
Has Navient fully repaid the $22.3 million in illegal overbillings
related to the 2009 Inspector General report? Please provide dates and
amounts of all payments made to date by Navient.
If Navient has not fully repaid the fines:
Has the Department of Education assessed, or does it plan to
assess, interest, fees, or penalties for Navient's lack of timely
repayment? Has the Department of Education approached the Department of
Justice about potential actions against Navient under the False Claims
Act? Does the Department of Education have a detailed timeline for
Navient to repay the full amount? If so, please provide details on this
timeline. Please provide all documents sent to and received from Sallie
Mae and Navient regarding delays in payment or requests for extension,
including the Final Audit Determination Letter that the Department has
sent to Navient.
Answer 5. The Department is committed to recovering funds that were
overbilled to taxpayers. We cannot provide further details as this is
an ongoing enforcement matter. A copy of the Final Audit Determination
letter is attached as Attachment A.
Question 6. Many student loan borrowers who file Chapter 13
bankruptcy would like to participate in administrative income-based
repayment plans (IBR, PAYE, etc.) while they are in bankruptcy.
However, borrowers in Chapter 13 are typically placed in a forbearance
status by student loan servicers and are prevented from remaining in
good status on IBR plans, and from enrolling in such plans, while the
bankruptcy is pending.
What steps has the Department taken to address this problem, so
that borrowers in bankruptcy are not discriminated against based on
their bankruptcy filing? What is the Department's policy regarding
participation in repayment plans when a borrower is in a Chapter 13
case?
Answer 6. The Department is always looking for ways to better
assist borrowers in distress, including those who have filed for
bankruptcy protection.
Due to financial constraints leading up to a bankruptcy filing, a
borrower in bankruptcy may not be making payments under the repayment
plan. Borrowers in bankruptcy are protected by an automatic stay, which
prevents creditors, including the Federal Government, from making any
attempts at collection of a debt while the borrower is in bankruptcy.
Due to the automatic stay, what would otherwise be normal student loan
servicing activity (i.e., switching repayment plans) may be suspended
by loan servicers to ensure that no violation of the automatic stay
occurs.
The Department has helped borrowers establish alternative repayment
arrangements in several recent Chapter 13 bankruptcies, where the
student loan borrowers' Chapter 13 plans contained language that
provided for a student loan debtor to repay his or her student loan
debt under one of our income driven repayment plans, rather than have
the Department receive the allotment that would otherwise be provided
to the unsecured non-priority creditor class in the bankruptcy.
The borrowers wanted to pursue this option so that the time period
in repayment could count toward the maximum time required prior to loan
forgiveness in those plans. The plans were confirmed, permitting the
debtor to participate in an income driven repayment plan during the
Chapter 13 bankruptcy. The Department worked with the attorneys in
those specific cases to ensure that the borrower could repay under
repayment plans for which the borrower was otherwise eligible and that
the Department and/or loan servicers were protected from any servicing
activity that resulted from such accommodation while the automatic stay
was in place.
debt collection
Question 7. In the hearing, I mentioned problems with abusive debt
collection practices. How does the Office of Federal Student Aid
measure and track debt collection success? Is it based only on dollars
collected? If other measures are used, what are they and how are they
tracked?
Answer 7. The Department is deeply committed to ensuring that all
borrowers in default on a student loan are treated fairly and has taken
a number of steps to ensure that borrower customer service is at the
center of measuring PCA performance.
First, the Administration has put into place new rules that allow
many defaulted borrowers an opportunity to rehabilitate their loans and
get into an affordable repayment plan more easily, an important step to
improve their credit and ensure continued eligibility for Federal
financial aid for future education pursuits.
For new private collection agency (PCA) contracts beginning last
year and under any future awards, the Department has implemented a
performance evaluation approach called Continuous Performance
Monitoring and Evaluation (CPME). This methodology drives allocations
of new accounts to the PCAs, which we believe is the most effective way
of incentivizing agencies to pursue Department priorities that reflect
the interest of borrowers. CPME focuses on three factors: borrowers
resolved, quality of service, and dollars collected.
Under ``borrowers resolved,'' PCAs will receive equal
credit for every borrower that resolves their account by, for example,
paying in full, rehabilitating, consolidating, or being approved for a
total and permanent disability discharge. We believe this will provide
a significant incentive for the PCAs to promote the resolution option
most appropriate for each borrower and keep borrowers from remaining in
default.
The ``quality of service'' factor will be based on the
number of complaints each PCA receives and on quality reviews conducted
by FSA. FSA will define a minimum acceptable service quality score PCAs
must meet in order to be eligible for any new placements.
Question 8. When does the Department intend to stop paying debt
collectors that are accused of breaking Federal consumer protection
laws that I referenced in the hearing, including Enterprise Recovery
Systems, Pioneer Credit Recovery, and West Asset Management? How many
borrowers? accounts are still with these debt collectors?
Answer 8. The Department believes that every borrower--including
those in default--deserve to be treated with dignity and respect. These
borrowers should also get accurate information from our contractors
about their options.
Regarding your specific question, we have already recalled all non-
paying accounts from these PCAs and will continue to do so on a monthly
basis for borrowers who stop making payments. The only accounts still
placed with these PCAs are active accounts from borrowers who are
making voluntary payments, being garnished, or are under review for a
disability discharge to avoid any disruption in the borrower's
resolution efforts, particularly to ensure continuity for borrowers who
are working toward rehabilitation. FSA plans to recall all remaining
accounts under these contracts, but to allow all borrowers to have the
requisite 10 months to complete the terms of a rehabilitation
agreement.
Following the Department's findings that these PCAs had violated
Federal consumer protection laws, each satisfactorily documented that
it had taken action to put in place stronger controls to address those
problems. As a result, pursuant to Federal procurement law, those
entities were then eligible to continue competing for Department
contracts. The Department also has put in place increased monitoring of
PCAs.
Question 9. Some recent default rehabilitation agreements state
that the Department of Education will charge collection fees that have
been previously waived if a borrower re-defaults after a successful
rehabilitation.
Is this the Department's policy? If so, how do the Department and
its collectors separate fees that were previously waived from any new
fees? Does the Department track data on borrowers who re-default? If
so, how is this data tracked and is it public? If so, what are the
variables the Department studies regarding causes of re-default? If the
Department does not currently track or study this information, does it
have future plans to do so?
Answer 9. While default rehabilitation agreements include a
provision that allows the Department to charge previously waived fees,
in practice the Department does not pursue additional collection fees
from borrowers who have re-defaulted after a successful rehabilitation.
The Department believes that tracking the success of borrowers
enrolled in rehabilitation is critical. We are in the process of
analyzing preliminary numbers on borrowers who re-default and we intend
to make data on re-defaults public in the future.
Question 10a. How many full-time employees spend at least 50
percent of their time overseeing the Department's private debt
collectors' compliance with Federal and State rules and laws?
Answer 10a. There are currently 84 full-time staff whose primary
responsibility is conducting oversight of private collection agencies
and servicers. Most of these staff focus on compliance with contractual
requirements, which include adherence to Federal and State laws.
Question 10b. Please provide a copy of the Department's Private
Collection Agency handbook/manual.
Answer 10b. The Department has not made the manual public based on
the advice of the Office of the General Counsel and the Inspector
General's Office. However, we would be pleased to provide your office
with an opportunity to review the manual at your convenience and can
make staff available to help answer any questions that arise from that
review. I will instruct the Department's Office of Legislation and
Congressional Affairs to reach out to your office to make arrangements
for such a review upon submission of this response.
Question 11. During the hearing, you said that you are ``deeply
committed to ensuring that Federal Student Aid serves students well,
serves borrowers well, and protects the taxpayer interest.'' I share
this commitment, but in order to achieve this, FSA's staff must be able
to hold its contractors--particularly student loan servicers and debt
collectors--more accountable. The problems I've identified are about
FSA's employees consistently prioritizing the interests of its
contractors over the interests of taxpayers and students. And one of my
concerns in this area is that there seems to be a number of FSA staff
that have left the government and gone to work for student loan
servicers or contractors--presenting the appearance of a revolving
door. As Acting Secretary, you currently oversee FSA and its staff;
Please provide a copy of your policies for employees who are
leaving or considering leaving government service and are considering
jobs with student loan servicers, contractors, or other entities that
have business before FSA. Are there requirements that employees
disclose contact or job offers from these firms? Are there requirements
for employees to recuse themselves from work affecting these firms? Are
there post-employment restrictions on these employees if they take jobs
with contractors or student loan servicers? Similarly, provide a copy
of your policies for employees who are moving from FSA contractors or
student loan servicers into ED employment. Are there disclosure or
recusal requirements? Please provide a list of FSA employees who have
previously worked at an FSA contractor or a company owned by an FSA
contractor. Please provide a list of former FSA employees who currently
work at an FSA contractor or a company owned by an FSA contractor.
Answer 11. Every agency, including the Department of Education,
must ensure that the public is fully confident that the agency's
actions are in the best interest of the public and are not--or even
appear to be--influenced by the so-called ``revolving door.''
Attached as Attachments B and C are the guidance documents shared
with employees specific to seeking employment, including post-
employment rules. These documents are distributed by the Department's
Ethics Division. As you will see from the documents, the April 15, 2014
document provides guidance on specific laws and regulations that govern
employment matters. The second document provides employees information
in a conversational tone to help ensure the technical aspects of the
laws and regulations are understood. Both documents make clear that
there are certain restrictions on Federal employees, particularly those
that have been involved in procurement activities.
The Department makes clear that all new employees are subject to
the Standards of Ethical Conduct and other ethics laws. Among other
things, new employees are required to disqualify themselves from
participating in particular matters involving specific parties in which
their former employer is, or represents, a party for 1 year. In
addition, under the Standards of Ethical Conduct and the criminal
conflict of interest statute at 18 U.S.C. 208, employees must be
recused from any particular matter that will have a direct and
predictable effect on an entity with which they are seeking employment.
Per the Procurement Integrity Act (41 U.S.C. 2101-2107), the law
imposes job-search restrictions on Federal employees who have been
involved in agency procurements. This means an employee who is
participating personally and substantially in procurement for a
contract in excess of the simplified acquisition threshold and is
contacted by a bidder regarding non-Federal employment or is seeking
employment with a bidder must report the contact, in writing, to his or
her supervisor and the Designated Agency Ethics Official. Additionally,
the employee must either reject the offer of non-Federal employment or
disqualify himself or herself from further personal and substantial
participation in the procurement until authorization to resume
participation is granted in accordance with the conflict of interest
rules (18 U.S.C. 208) on the grounds that the offeror is no longer a
bidder or all discussions with the offeror regarding possible non-
Federal employment have terminated without an agreement for employment.
Additionally, Section 17 of the STOCK Act requires employees who
file public financial disclosure reports to notify the Designated
Agency Ethics Official within three business days of commencing post-
government employment negotiations or entering into an agreement for
post-government employment.
The Department's hiring process has resulted in hiring staff from
current or former vendors. We believe this has been of benefit to the
Department as there are limited opportunities for individuals to become
familiar with the student loan process. The Department has a thorough
vetting process to ensure the skills and requirements of the vacant
position meet the needs necessary for the advertised position. We
immediately provide new hires with information as to the legal
restrictions with respect to their interactions with their former
employers. We do not keep a list of current or former employees that
once worked for a contractor. However, other than the legal
restrictions surrounding employee conduct with former employers
(oftentimes known as the ``cooling off'' period), there are no
restrictions in the government's hiring protocol with regards to
applicants that once were employed by a current or former contractor.
The Department does not require employees to provide post-
governmental employment information, nor do we track the employment
activities of our staff once they leave the agency. Therefore, I am
unable to provide a list of former staff that now work for a contractor
or a company owned by an FSA contractor.
I share your desire to ensure that the Department meets the highest
standards of ethics and integrity, and I appreciate feedback on ways
that the public can remain confident in the Department's work.
student loan debt relief scams
Question 12. Shortly after you became the Acting Secretary, the
Department issued cease and desist letters to a number of student loan
``debt relief'' companies.\5\ Have these companies abided by the
Department's request? In cases where the companies have not, how does
the Department plan to respond?
---------------------------------------------------------------------------
\5\ http://blog.ed.gov/2016/01/dont-be-fooled-you-never-have-to-
pay-for-student-loan-help/.
---------------------------------------------------------------------------
Answer 12. Both companies that were sent cease and desist letters
on January 28, 2016 no longer include the seal of the U.S. Department
of Education on their Web sites. If companies do not comply with our
cease and desist letters, we will work internally and with our partners
at the Department of Justice to determine the most appropriate
response.
student loan complaints
Question 13. In April 2015, Senators Reed, Durbin, Brown, and I
sent a letter to the Office of Management and Budget, with copies to
the Department of Education and the Consumer Financial Protection
Bureau (CFPB), asking the Administration to examine the feasibility of
using the existing student loan complaint system at the CFPB for
Federal student loans. Since that time, the Department of Education has
announced plans to develop its own complaint system.
What considerations were given to leveraging the CFPB's system?
What have been the costs of developing the proposed system, and what
does the Department estimate the costs will be going forward? When will
the system be fully operational? How will the Department's system
interact with the CFPB complaint system? Will the Department share all
applicable completed complaints it receives with Consumer Sentinel? If
not, why not? Will the complaint system be public and searchable? If
not, why not? Will the Department ask borrowers who submit complaints
whether they are satisfied with the outcomes? If not, why not?
Answer 13. The Enterprise Complaint System is being developed in
response to the directive in the President's Student Aid Bill of
Rights, published on March 10, 2015, for the Department to ``Create a
Responsive Student Feedback System'' to ``give students and borrowers a
simple and straightforward way to file complaints about Federal student
loan lenders, servicers, collections agencies, and institutions of
higher education.'' The Student Aid Bill of Rights notes that, as a
result of such a system, ``[s]tudents and borrowers will be able to
ensure that their complaints will be directed to the right party for
timely resolution, and the Department of Education will be able to more
quickly respond to issues and strengthen its effort to protect the
integrity of the student financial aid programs.''
In developing the Complaint System, the Department has consulted
with other entities including the Consumer Financial Protection Bureau,
and others in its consideration of the design of a new system to
leverage the knowledge and experience of other systems currently in
use.
The Department expects total development costs to be approximately
$7.4 million across fiscal years 2015 and 2016. The Department has
estimated annualized ongoing costs, including operations and
maintenance, software licenses, and contractor customer service
support, to be approximately $2.5 million per year. In accordance with
the President's Student Aid Bill of Rights, the Enterprise Complaint
System will be implemented by July 1, 2016.
Interactions between the Enterprise Complaint System and the CFPB
complaint system are governed by the Memorandum of Understanding (MOU)
between the CFPB and the Department regarding Federal Student Aid (FSA)
Ombudsman data. Cases that are determined to be related to the scope of
the CFPB complaint system and not the Department, e.g., cases related
to private student loans, will be forwarded to the CFPB for resolution
through a process that is seamless to the customer. The customer will
be informed when this occurs.
The Department will continue to share all applicable completed
complaints it receives with Consumer Sentinel, in accordance with
existing processes and data-sharing agreements. The information and
data gathered through the complaint system will also be used to aid in
compliance reviews and improve servicer oversight.
Although the Department recognizes the value that a searchable
public database can provide to customers, this functionality is not
planned for initial implementation. However, the Department is
exploring ways to develop this capability for a future release, and
does plan to provide reports to the public. For example, the Department
will release an annual report on complaint data beginning in October
2016, and is exploring the possibility of releasing standardized
complaint data at more frequent intervals on the FSA Data Center in
addition to improvements to the usability of the data presented, as
well as periodic reports on significant or timely issues.
The Department will ask borrowers who submit complaints whether
they are satisfied with the outcomes. For technical reasons, this
capability will not be available by July 1, 2016, but is expected to be
included as an enhancement soon afterwards.
borrower defense, other discharges, and corinthian
Question 14. My last question at the hearing was about borrower
defense to repayment and Corinthian. You said that you are committed to
protect the interests of borrowers and taxpayers, yet the Department
still has not established and published a policy for proactively
identifying and reaching out to borrowers who are eligible for
discharges. Besides borrower defense rulemaking, when will the
Department create and make publicly available its policies for
identifying and reaching out to borrowers who are currently eligible
for discharges (not borrowers who might be eligible after a new rule is
written in 2017)?
Answer 14. Our goal is to ensure that every student who is eligible
for relief--either because they were defrauded by their college or
because their school closed down--receives every penny of the debt
relief they are entitled to in an efficient manner. For students who
may be implicated by our findings of wrongdoing by schools, we have
engaged in multiple rounds of e-mail or postal mail outreach to notify
borrowers that they may be eligible for relief. For example, last month
we sent out nearly 50,000 followup e-mails to Heald borrowers that
included links to the form that borrowers could fill out to seek
relief. We tested different subject lines to see which would create the
highest e-mail open rate. Preliminary data about the open rates for
these e-mail outreach campaigns show they are performing relatively
well.
However, we still are not satisfied with the response and plan to
begin another round of postal mail outreach, which will include a copy
of the attestation form for Heald students and a return envelope.
Question 15. Please provide the guidance that the Department
currently gives student loan servicers regarding borrower defense
discharges, closed school discharges, and other student loan
discharges.
Answer 15. The goal of the Department's direction to student loan
servicers regarding discharges is aimed at ensuring borrowers
understand the options available to them to obtain relief on the loans
eligible for discharge. We would be pleased to further discuss our
guidance to the student loan servicers in a meeting with you or your
staff.
Question 16. Is the Education Department advising the Treasury
Department not to garnish wages or offset Federal payments for students
attending schools where the Department of Education has an open
investigation into potential misconduct?
Answer 16. No. The Treasury Department administers the Federal
offset program, and we would direct any questions related to program
operations to that Department.
Question 17. The Treasury Department is conducting a debt
collection pilot program in coordination with the Department of
Education to examine if debt collection should be brought in-house
rather than managed by private contractors. Is the Department of
Education working with Treasury to ensure that no students eligible for
relief under borrower defense to repayment have their wages garnished
through this joint debt collection pilot program?
Answer 17. The Department of Education and the Treasury Department
have discussed Treasury's debt collection pilot. Although we have not
specifically discussed whether students eligible for relief under
borrower defense to repayment should have their wages garnished, we are
in regular contact about the debt collection pilot, and I will be sure
to keep your views in mind as we continue through this process.
Question 18. Federal Student Aid has provided information on its
Web site suggesting that former Corinthian Colleges students seeking to
assert a defense to repayment on their loans should submit
``transcripts and registration documents indicating your specific
program of study and dates of enrollment.'' However, in June 2015, a
lawyer representing Corinthian warned that the records of former
students might soon be abandoned. What is the Department of Education
doing to ensure that former students of the now defunct Corinthian
Colleges--or future schools that go out of business--can actually track
down copies of the documentation the Department requests?
Answer 18. Prior to a closure, institutions are required to make
accommodations for the storage and maintenance of student records and
for communicating information about the location of academic
transcripts and records once the location has been determined.
Additionally, closed institutions are required to provide State
licensing agencies with information regarding the location of those
student records.
In the case of Corinthian and other institutions that have recently
closed, the Department worked closely with the requisite State
licensing agencies to ensure information regarding the location of
student records was widely available but, ultimately, the storage and
maintenance of student records rests with the State licensing agencies.
When Corinthian closed, the school directed students who needed
transcripts to their State authorizing agencies. This reflects the
important role States have in authorizing institutions to operate
within their borders, as well as in protecting consumers. The
Department looks forward to a continued partnership with State
authorizing agencies for such situations.
college accountability/for-profits
Question 19. Many of us have expressed concern that the Department
of Education failed to shut off the spigot of Federal aid to Corinthian
when it should have despite overwhelming evidence that it was cheating
its students. There are currently dozens of State and Federal
investigations and lawsuits into other predatory schools like
Corinthian. I commend the Department for setting up its new enforcement
unit to better address these types of problems, but my understanding is
that the enforcement unit will report to Federal Student Aid.
Why does this unit, which will include borrower defense, report to
FSA, whose mission is to maximize collections for the student loan
program? Would you be open to having this enforcement unit report
directly to you?
Answer 19. The Department has a track record of taking aggressive
action against bad-acting schools when it has evidence; several such
actions have been taken quite recently. In the most recent case of
Corinthian Colleges, the FSA's efforts resulted in findings of
misrepresentation by the colleges that led to progressive sanctions and
eventual closure. Still, FSA and other Federal agencies, including the
Government Accountability Office and the U.S. Securities and Exchange
Commission, have highlighted the need to build FSA's institutional
enforcement capacity significantly, which led to the creation of the
Enforcement Unit.
The Department decided to organize the new enforcement unit in
Federal Student Aid for several reasons. First, many cases that the
Enforcement Unit could investigate include issues that are found via
the routine institutional review processes conducted by FSA's Program
Compliance unit. Placing the Enforcement Unit within FSA will foster
close coordination and collaboration between these units, enhancing
information flows that are often critical to conducting effective
investigations. Second, as the Enforcement Unit is built out, Federal
Student Aid, as a Performance Based Organization, has more flexible
hiring authorities, thus enhancing our ability to put in place a strong
leadership team and staff. Third, the Enforcement Unit will be an
independent part of Federal Student Aid and Robert Kaye, the head of
the Enforcement Unit, will report directly to the Chief Operating
Officer of FSA under the overall management of Under Secretary Ted
Mitchell. I am confident that our leadership team throughout the
Department understands and will implement my vision for a strong,
rigorous and effective compliance and enforcement regime that will
better protect students.
Question 20. The Department of Education has the authority under
the Higher Education Act to claw back the compensation of executives of
colleges and universities should that school be found to not be
financially responsible under the general standards and provisions in
668.171. If confirmed, will you be willing to use this authority?
Can you please provide all the instances in the last 5 years where
the Department has exercised this authority, including details on each
individual subject to a claw back and how much compensation was
collected in each instance?
Answer 20. In certain limited situations, ED has the authority to
require financial guarantees from or the assumption of liability by
owners, board members and executives of an institution with regard to
liabilities to/financial losses of the United States, student
assistance recipients or other program participants. 20 U.S.C.
1099c(e). We have not used this authority in the last 5 fiscal years;
the HEA limits the imposition of these types of consequences only to
certain, narrowly defined, cases. We'd be pleased to talk with you or
your staff about other possible authority in this area.
Question 21. The Department currently has other tools to hold
predatory schools more accountable. Currently, when an institution's
cohort default rate exceeds 30 percent, the institution must create a
task force and develop a default management plan.
Please provide a list of all institutions that have developed a
default management plan and the outcomes of such plans on default
rates. What have been the features of successful default management
plans?
Answer 21. We are continuing to collect these data, and will
supplement these responses as soon as possible.
Question 22a. Colleges are subject to a number of rules that
require judgment by you as the Secretary of Education. For each of the
following authorities, please list each instance in which Department
has used that authority in enforcement actions.
Rules that prohibit an institution from making ``any statement that
has the likelihood or tendency to deceive'' students ``about the nature
of its educational program, its financial charges, or the employability
of its graduates.'' (34 CFR 668.71)
Answer 22a. The spreadsheet attached as Attachment D reflects
administrative actions taken in the last 5 fiscal years that were based
on non-compliance with 34 CFR 668.71 concerning misrepresentations as
outlined in the regulations and as further defined in 668.72-668.74
regarding the nature of educational programs, nature of financial
charges, and employability of graduates.
Question 22b. Rules that require an institution to provide
``adequate'' counseling to students regarding students' ``rights and
responsibilities . . . with respect to enrollment at the institution.''
(34 CFR 668.16)
Answer 22b. This request specifically refers to paragraph (h)(3) of
the administrative capability standards under 34 CFR 668.16. We did
not have any adverse actions in the last 5 fiscal years that were based
upon this specific ground.
Question 22c. Rules that require an institution to ``act with the
competency and integrity necessary to qualify as a fiduciary'' on
behalf of taxpayers, ``in accordance with the highest standard of care
and diligence.'' (34 CFR 668.82)
Answer 22c. While all enforcement actions inherently result from a
failure to meet the fiduciary standard of conduct, the adverse actions
in the spreadsheet attached as Attachment E specifically reference the
fiduciary standard of conduct set forth in 34 CFR 668.82.
Question 22d. Rules that require an institution to administer
Federal aid ``with adequate checks and balances in its system of
internal controls.'' (34 CFR 668.16)
Answer 22d. This request regarding adverse actions is based upon
the administrative capability standards outlined in 34 CFR
668.16(c)(1), which requires that institutions administer Federal aid
with adequate checks and balances in its system of internal controls.
The spreadsheet attached as Attachment F specifically outlines adverse
actions in the last 5 fiscal years that were based on that particular
ground.
Question 22e. Rules that prohibit an institution from receiving
Federal aid if ``any criminal, civil, or administrative proceeding''
reveals ``evidence of significant problems that affect . . . the
institution's ability to administer'' Federal aid. (34 CFR 668.16)
Answer 22e. The administrative capability standards at 34 CFR
668.16(j) has two sections. The information requested related to 34 CFR
668.16(j)(2). We did not have any adverse actions in the last 5
fiscal years that were based on this specific ground.
Question 23a. Colleges submit independent annual audits that, under
the audit guide, are supposed to check for possible violations of the
incentive compensation rule, among other things. Do the audits that the
Department receives include evidence of a college's compliance with the
incentive compensation rule?
Answer 23a. Yes, for audits that include a finding questioning a
school's compliance with the incentive compensation provisions, they
will have that specific finding identified. The auditor's finding will
explain the violation. In this sense, the audit and the finding provide
``evidence'' of the institution's possible violation.
Question 23b. Please list all instances in which a school has
reported violations or possible violations of the incentive
compensation rule and how the Department responded in each instance.
Answer 23b. The spreadsheet attached as Attachment G reflects in
the comment section how the Department responded to each identified
violation/possible violation of the incentive compensation rules during
the relevant time period.
Question 23c. Are there any rules are regulatory safe-harbors that
currently prevent the Department from fully enforcing the incentive
compensation rule?
Answer 23c. This Administration successfully removed through
regulations all of the safe harbors that previously plagued meaningful
enforcement of the incentive compensation ban. In addition, it withdrew
a directive put in place by the prior Administration that directed the
Office of Federal Student Aid to avoid recovering student aid dollars
that were improperly received as a result of illegal recruitment
activity and, instead, seek to fine institutions for noncompliance.
There remains at least one False Claims Act case that was initiated
under the prior regulatory regime, which has been made more complicated
because of these prior rules. Going forward, the Department has no
current regulatory barriers to fully enforcing the ban. In 2015, ED
also repealed a Bush administration directive that inhibited ED's
enforcement of the statutory ban on incentive compensation and re-
trained enforcement staff to utilize ED's full authority to hold
violating colleges accountable.
Question 24. The Department's auditors are expected to look for
risk indicators, including those listed below. How do the auditors
assess these indicators and how do the auditors respond when the audits
indicate a potential problem?
Rapid growth in a short period of time.
Use of high-pressure recruitment tactics.
High turnover of management, faculty, and other staff.
Large number of students dropping/withdrawing after the
last date when funds would have to be returned to the Education
Department.
High student enrollment but low student attendance.
High rate of withdrawals or defaults.
Signs of inadequate or overworked faculty.
Answer 24. Audits of for-profits institutions are conducted in
accordance with the OIG Audit Guide, ``Audits of Federal Student
Financial Assistance Programs at Participating Institutions and
Institution Servicers (http://www2.ed.gov/about/offices/list/oig/
nonfed/sfgd2000.pdf).'' Audits of private non-profits and public
institutions are conducted in accordance with the OMB A-133 Compliance
Supplement (https://www.whitehouse.gov/omb/circulars/
a133_compliance_supplement_2015). The audits are submitted to the
Department for resolution of the findings that have been identified.
The testing procedures provided in the audits do not provide the level
of detail to respond to this question.
Question 25. The audit guide has not been updated since 2000. If
you are confirmed, when will the Department update this audit guide?
Answer 25. The Office of Inspector General (OIG) is responsible for
issuing the ``GUIDE FOR AUDITS OF PROPRIETARY SCHOOLS.'' The OIG
intends to issue the updated guide by the end of April 2016.
Question 26. The Higher Education Act was amended in 2008 to
require Education Department investigators to share their findings with
colleges before ever notifying the public of the exposed problems, and
permanently prohibits public disclosure of those original investigator
findings.
How is this provision affecting the Department's ability to act on
its findings, and on the type and timing of information that is
available to the public? What types of changes have been made to
program reviews before they have been made public?
Answer 26. The HEA prohibits the public disclosure of a program
review report until an institution has had an opportunity to respond
and a final determination is issued. However, the final determination
which becomes public includes a copy of the program review report with
the original findings. This provision does not impact the Department's
ability to act on its finding. It does delay program review information
being publicly available.
Changes are not typically made to a program review report that has
been issued to the institution. Those that are made are generally to
correct an administrative error. Even findings that are resolved remain
in the report and the final determination will indicate that the issue
has been satisfactorily resolved. Final Program Review Determinations
are posted on the FSA Data Center.
legal rights of students
Question 27. Many predatory schools require forced arbitration
clauses, prevent students from joining together with other students to
file complaints, or take other steps to limit students' recourse and
prevent regulators and law enforcement agencies from gaining
information about these students. What steps is the Department taking
to ensure that students who enroll in college are not forced to sign
away their legal rights, and that the Department and other agencies
have timely information about complaints and disputes?
Answer 27. It is absolutely critical that students are able to
obtain redress if they have been taken advantage of by bad actors. The
Department recently established an Enforcement Unit which will beef up
oversight over higher education institutions, and, as part of the
President's Student Aid Bill of Rights, we will be launching a state-
of-the-art student feedback and complaint system by July 1, 2016.
Regarding your specific question, we share your concern about avenues
for adequate legal remedy being restricted for students and borrowers
and we are looking broadly at how students can pursue disputes, and we
will include the specific issue you raise--of students being forced to
sign away their legal rights--in our analysis and efforts. We plan to
report on the progress of this work in the coming months.
accreditation
Question 28. You spoke briefly about accreditation in response to a
question from Senator Murphy.
How will you ensure that accreditation agencies are proactively
protecting students during upcoming National Advisory Committee on
Institutional Quality and Integrity (NACIQI) review hearings?
Does the Department have the legal authority to ask for and obtain
accreditation team reports and self studies? If yes, when will the
Department work to make these public? If not, please provide me with
the legal rationale for why that is not the case.
Does the Department have the legal authority to require accreditors
to disclose accreditation team reports, self studies, or at least the
personnel who participate in team visits? If yes, when will the
Department work to make these public? If not, please provide me with
the legal rationale for why that is not the case.
Has the Department obtained or will it obtain and publish any of
the accreditation documents related to Corinthian Colleges, FastTrain,
Westwood, or other large college companies that have closed in recent
years or are in the process of closing?
Answer 28. The Department shares many of the concerns that Members
of Congress have raised about accrediting agencies.
Accrediting agencies must play a key role in ensuring quality in
post-secondary education and protecting students. The Department's
Office of Post-Secondary Education (OPE) provides recognition,
oversight, and monitoring of accreditation agency compliance with
statutory and regulatory requirements. In addition to the ongoing
accreditation oversight that OPE has provided, the Department announced
a number of executive actions in November 2015 to improve transparency,
accountability, and focus on student outcomes in its recognition and
oversight processes.
The Department is taking a number of steps in order to better
inform staff and NACIQI recommendations, particularly related to
student outcomes and problematic institutions. First, the Department
has made publicly available, via its Web site, performance data for
institutions sorted by accreditor, as well as information regarding
each recognized accrediting agency's student achievement standards. At
its last NACIQI meeting, NACIQI expressed interest in incorporating
these data into its review processes for the June 2016 meeting. Toward
this end, NACIQI adopted a plan for the June 2016 meeting which
includes analysis of key data points that NACIQI wishes to include as
part of its review of accrediting agencies, and NACIQI identified
questions regarding student achievement measures that it will pose to
agencies in a systematic format. In addition, Department staff
incorporate the number of complaints received for each accrediting
agency and provides that information to NACIQI.
All of these actions, taken together, are increasing accountability
of agencies for the performance of their institutions. We also make the
documents collected in the agency recognition process available to the
public for inspection in accordance with the Federal Advisory Committee
Act. This includes accreditation team reports and self-studies provided
by agencies to the Department.
The Department is working to conduct a rigorous review of the
accreditors scheduled for re-recognition in June 2016, including some
that accredited recently closed institutions. The Department is
gathering relevant information that will inform staff and NACIQI
recommendations. We will continue to work to strengthen accreditation
and ultimately ensure high-quality options for students.
As you know, in addition to the executive actions we are taking to
strengthen accreditation, the Administration has called for legislative
action to advance a focus on student outcomes in accreditation. We look
forward to continuing to work with you and your colleagues on this
effort.
tcpa
Question 29. In December 2015, Senators Lee, Markey, Hatch and I
sent your predecessor a letter to express our concerns about using
``robocalls'' to collect student loan debt.\6\ While a caller must
generally have a person's consent before using autodialers and pre-
recorded messages to ``robocall'' the person's cell phone or
residential line, Title III of the Bipartisan Budget Act of 2015
creates an exemption allowing anyone to robocall a person's phone--
without consent--for the purpose of collecting a debt owed to or
guaranteed by the Federal Government.
---------------------------------------------------------------------------
\6\ Letter from Senators Elizabeth Warren, Michael S. Lee, Edward
J. Markey and Orrin G. Hatch to Hon. Arne Duncan, Secretary, U.S.
Department of Education (Dec. 21, 2015) available at http://
www.warren.senate.gov/?p=press_release&id=1038.
---------------------------------------------------------------------------
Our letter asked the Department not to use this new authority until
the Department can demonstrate with data that robocalling is in the
best interest of student loan borrowers and taxpayers and will not
result in abusive debt collection practices. The Department's response
dated February 24, 2016 indicated that the Department would ``provide a
detailed cost-benefit analysis and burden assessment [] in accordance
with Executive Orders 12866 and 13563.'' In other words, the Department
responded to our request for this specific data with a commitment to
conduct a general cost-benefits analysis that agencies must provide
anyway as part of a rulemaking process.
In addition, our letter asked two questions: whether the Department
agrees with our reading of the Bipartisan Budget Act of 2015 that
robocalling is not permitted until after the Federal Communications
Commission (FCC) has issued implementing regulations; and whether the
Department interprets the new authority to permit robocalling to the
relatives and references of student loan borrowers. The Department
responded that it has not concluded its ``review of implementation
issues'' and that the Department ``has not developed guidance on the
scope of the authority under Title III.'' In other words, the
Department did not answer our questions.
Given the Department's inadequate response, I ask again for the
Department to provide the data requested in our letter and answers to
our questions--specifically:
Will you commit to not permitting robocalling under this authority
until the FCC issues implementing regulations? Will you commit to
ensuring that this authority cannot be used to robocall relatives or
references who may be secondarily responsible for student loan debt?
Will you commit to providing the data we requested, rather than simply
committing to conduct the standard cost-benefit analysis?
Answer 29. We continue to support efforts to protect borrowers from
harassing phone calls and recognize the important role the TCPA plays
in safeguarding consumers from excessive, unsolicited phone calls.
Shortly after the Bipartisan Budget Act of 2015 was passed, we sent a
notice to our servicers to not implement any changes related to the
TCPA provision. The Department will not permit robocalling under this
authority until the FCC issues implementing regulations and we will not
allow our servicers to use this authority to robocall relatives or
references who may be secondarily responsible for student loan debt.
Regarding data and analysis to show whether this is in the public
interest, we are determining the best way to be responsive to this
request and plan to followup with your staff and staff of other
interested offices.
Please contact Josh Delaney (202-224-4543) in my office if you have
any questions.
[Editor's Note: The attachments indicated above were not available
at time of print.]
additional questions of senator warren
Regarding the Department's Review of Student Loan Servicers and the
Education Inspector General 3/1/2016 Report. See http://www.ed.gov/
about/offices/list/oig/misc/scrareport02292016.pdf.
Question 1. How and why did the Department make the decision not to
rely on DOJ's and the FDIC's investigation, and instead conduct
separate reviews of Navient's conduct to determine whether Navient
should be subject to penalties in the student loan program as a result
of its settlement with DOJ and the FDIC?
Answer 1. The misconduct of Sallie Mae/Navient that was alleged by
the Justice Department and the Federal Deposit Insurance Corporation
was disturbing, and the Education Department was greatly concerned by
this development. While the Department worked closely with the Justice
Department in developing the relief provided to Federal student loan
borrowers under the Consent Order, under the Department's contracts
with loan servicers, we needed to determine whether Navient had
complied with the terms of that contract, the HEA and regulations, and
the guidance we provided to determine if we had a legal basis to take
any action under the contract. Additionally, while working with Justice
on the Consent Order we discussed how to apply the procedures required
of Navient going to other servicers and to the FFEL Program. As a
result, the Department issued new guidance to ensure that
servicemembers could automatically receive the interest rate reduction
on their Federal student loans and operationalized that guidance to
ensure that every servicemember is guaranteed the benefits to which
they are entitled on their Federal student loans under the
Servicemembers Civil Relief Act.
Question 2. Given that neither the Department of Education nor its
Office of Federal Student Aid--the Department's student loan bank--
administers or enforces the SCRA, why was this review conducted by the
Office of Federal Student Aid, and not a certified auditor with SCRA
expertise or an arm of the Department that does not regularly engage
with student loan servicers?
Answer 2. Every office within the Department, including offices
within the Office of Federal Student Aid, is deeply committed to
protecting the interests of students and borrowers.
The Department's review was to determine whether or not the
servicers were in compliance with the requirements of the Higher
Education Act, our regulations and guidance, and the servicers'
contracts with the Department. That expertise is in Financial
Institutions Oversight Service Group (FIOS), which is located within
the Office of Program Compliance, a separate component within FSA that
is not involved in the business operations of the loan servicers. FIOS
is responsible for monitoring the servicers' compliance with the
statutory and regulatory requirements for the Federal loan programs.
Federal Student Aid did engage a certified auditor, CPA firm Ernst &
Young, to conduct an independent review. The results of the Ernst &
Young review aligned with those of the FIOS review. We are in the
process of reviewing the OIG's recommendations to determine what
additional action can be taken.
Question 3. Did the Office of Federal Student Aid seek input on the
scope of the review from the Department of Justice or the Consumer
Financial Protection Bureau's Office of Servicemember Affairs, or from
elsewhere in the Department of Education?
If not, why not? If so, how did their input factor into the program
review?
Answer 3. The Department worked closely with DOJ to understand the
scope of its review and the differences between our compliance standard
applicable under our contracts and the standard DOJ incorporated into
the Consent Order.
Since the scope of the Department's review was significantly
different from the scope of the action taken by DOJ, neither DOJ nor
CFPB was contacted regarding the scope of the FSA review.
More broadly, the Department has benefited from a close working
relationship with both the Department of Justice and the CFPB, and will
continue to look for ways to ensure our oversight responsibilities meet
the highest standards for servicemembers, students, and borrowers by
seeking opportunities to incorporate the expertise of other agencies
where they may have relevant expertise. As an example, most recently,
the Department's FSA has added an enforcement unit that includes a
focus on protecting Federal student loan borrowers headed by Robert
Kaye, one of the Nation's top enforcement attorneys and a leader in the
consumer protection work at the Federal Trade Commission. In addition,
Mr. Kaye coordinates enforcement activities with the Department's
Office of the Inspector General.
Question 4. When the Department was first briefed by both the
Consumer Financial Protection Bureau and Department of Justice on
possible SCRA violations by Sallie Mae/Navient? When did officials at
the Department of Education know the details of the DOJ's May 13, 2014
announcement?
Answer 4. The Department is in regular contact with partner
agencies, particularly our Federal law enforcement agencies, such as
the Department of Justice and the CFPB. We continue to strengthen our
cooperation through strong Memoranda of Understanding with such
agencies that allow for greater information sharing to aid in
investigative efforts. And we lead an interagency working group under
the Principles of Excellence for Educational Institutions Serving
Service Members, Veterans, Spouses, and Other Family Members focused on
ensuring better educational resources and strong protections for our
Nation's military families.
While it was before I arrived at the Department, my understanding
is that the Department first learned about the Department of Justice's
investigation and findings of Sallie Mae's compliance with the SCRA
during the summer of 2013. The Department learned about the details of
the investigation during a series of communications primarily with the
Department of Justice. As noted in the Department of Justice's press
release of May 13, 2014, the Department of Justice's settlement with
Navient was the product of a joint effort with the Department of
Education, the Consumer Financial Protection Bureau and the Federal
Deposit Insurance Corporation. The Consent Order that resulted from the
settlement was negotiated over a period of months and the Department of
Justice consulted with the Department of Education throughout that
period.
Question 5. For each of the following reviews, who oversaw the
first FIOS review of Navient, the second FIOS review of Navient, and
the review of the other three TIVAS? How many full-time FSA and/or non-
FSA employees were assigned to and/or worked on each of these three
reviews? How was the methodology for each of these three reviews
established and reviewed? Who set the parameters for the methodology
and sampling methods for each of these three reviews?
Answer 5. As with all reviews, Departmental employees receive
training and guidance on conducting appropriate compliance activities
in order to protect the interests of students, borrowers, and
taxpayers. The reviews were managed by the Director of the Financial
Institution Oversight Service Group. The Department's internal review
was undertaken by 15 employees in FSA's Program Compliance office.
The methodology was established based on the Department's
requirements--mirroring statutory requirements of the SCRA--that
borrowers request in writing the SCRA interest rate and provide a copy
of their military orders. For the first review, FIOS relied on more
limited data that were accessible in NSLDS to conduct the four TIVAS
reviews in the timeframe provided. Since FSA's first review of Navient
resulted in substantially different results than DOJ, FSA management
wanted to do a second review utilizing the data match. We also engaged
a CPA firm, Ernst & Young, to conduct an independent review. Ernst &
Young selected a sample from the results of a data match with DMDC.
FIOS used this same sample to conduct the second review. Despite the
DMDC match used for the second review--and the threefold sample size
increase--the second review identified the same results as the first
review.
Question 6. What policies and procedures guide FIOS' approach to a
review such as these, and how are these policies and procedures similar
to the reviews of other Department guaranty agencies, private debt
collectors, contractors, and other financial institutions? Is it the
Department's policy that a certain number of mistakes are appropriate
from its servicers? What number and scope of mistakes would warrant
punitive action against a servicer?
Answer 6. FSA has policies and procedures to guide oversight
activities, such as those related to the review of the TIVAS for
compliance with SCRA-related regulations and guidance under the Higher
Education Act. This review was not designed to be a formal statistical
study. Rather, it was to review data for management's assessment of
compliance and to determine the need for corrective or other actions.
In certain situations, the Department can assess fines, such as
when a guaranty agency's or lenders' violation, failure, or substantial
misrepresentation is material and the entity knew or should have known
that its actions violated the provisions of the HEA or Department's
regulations. In the case of a violation by a contractor, the Department
can pursue remedies available under the contract.
Typically, if the cause of any instances of noncompliance were
systemic in nature, such as a lack of controls, inaccurate controls, or
a system coding issue, then the entity is instructed to take corrective
actions, including adjusting individual accounts or implementing
accurate controls or system changes. If FSA determines that the nature
of the noncompliance is severe or willful, the Department may seek
additional remedies, including contract termination.
In addition, later this year, the Department will begin a new loan
servicing procurement process to create a limited set of streamlined,
consistent systems and processes that will allow Department staff to
more effectively manage and oversee vendors' performance, leading to
better outcomes for borrowers. Providing high quality service to
servicemembers, and ensuring they receive all benefits to which they
are entitled, will be among our top priorities.
We appreciate any feedback you may have related to our policies and
procedures as we consider steps to ensure that the Department's reviews
of financial institutions meet the highest standards.
Question 7. Was the first Navient review (initiated June 2014)
completed, or merely stopped before completion? If it was stopped, then
why was it stopped? Who made the decision to stop it?
Answer 7. The review was completed.
Question 8. Please provide the results of the first Navient review
and explain why its existence and its content have not been previously
disclosed to the public. If the review was not completed, then please
provide materials produced as part of the review.
Answer 8. For the first Navient review, the sample was selected
from a National Student Loan Data System (NSLDS) population of 33,837
unique records of military deferment and military grace periods granted
from June 17, 2009, through April 14, 2014, for FFEL Program and Direct
Loan Program loans owned by the Department with an interest rate in
excess of 6 percent that were serviced by Navient under the TIVAS
contract. The DMDC match was not available at that time, and the NSLDS
selection criteria were used to yield a more likely population of
borrowers to have requested the SCRA benefit. The review identified one
borrower out of the sample being incorrectly denied.
The second review was conducted using the DMDC data match, which
was unavailable when the first review was conducted. FSA decided to
initiate a second review utilizing the data match. The second review,
based on the larger sample, also identified one borrower that had been
incorrectly denied. Since the second review was based on the larger
DMDC data match and resulted in similar results as the first review, we
had greater confidence in the results and focused efforts on the
development of a public report on this second review.
Question 9. Why didn't FIOS attempt to determine whether the TIVAS
has information in their own servicing systems that could have helped
them to identify a complete universe of servicemembers who might be
eligible for the SCRA benefit? Why didn't the FIOS review of Great
Lakes, PHEAA, and Nelnet use the Defense Manpower Data Center to
identify potential SCRA-eligible servicemembers?
Answer 9. The Department appreciates the importance of
understanding the architecture of key servicing systems used by the
TIVAS. This understanding helps to inform data sources for conducting
oversight activities.
Regarding your specific question, FIOS reviewed DOJ's sampling
method and understands that Deloitte, on behalf of DOJ, first
identified a population by matching the Navient borrowers against DMDC.
They then determined if the borrower's active duty was in scope, then
removed loans with an interest rate less than 6 percent or loans that
were not eligible because they were originated during the borrowers
active duty.
From that they matched the population against Navient's imaging
system to determine if any of the borrowers had a military document in
the system (as designated by a code). Deloitte then manually reviewed
the files of 12,400 borrowers (their ``sample''), and only 2,800
borrowers had both orders and a notice in the file, even after using
the data that Navient had in their imaging system. Therefore FIOS
believed the data in the imaging system was not sufficient to identify
the population of eligible servicemembers.
If, as stated by the OIG, Navient instituted a computer system code
as a result of the settlement, that code would not have been effective
during the time of the first FIOS Navient review because the settlement
had not been implemented. Although FIOS did not inquire directly of the
other three servicers as to whether there was information in their
system to identify SCRA eligible borrowers, FIOS did have a familiarity
with these systems and did not believe that to be the case.
During the time that the reviews were being performed, July/early
August, 2014, Great Lakes, PHEAA and Nelnet had not yet fully
implemented the data match. FIOS' goal at the time was to provide a
timely response to inform management's assessment prior to the full
implementation of this data match; however, FIOS did not have ready
access to the information. In addition, based upon the results of the
two Navient reviews, we concluded that there was not a meaningful
difference between using the DMDC data base or NSLDS.
Question 10. What percentage of servicemembers with Federal student
loans are in military grace periods or deferment at any given time?
Answer 10. We are continuing to collect these data, and will
supplement these responses as soon as possible.
Question 11. How much was Ernst and Young paid to corroborate the
FIOS reviews of the TIVAS? Please provide copies of the contract,
guidance, and directive that FIOS/FSA gave Ernst and Young. Did Ernst
and Young ever raise concerns about the FIOS methodology? If so, what
were those concerns and who received them? How did the Department
respond to these concerns?
Answer 11. Ernst and Young (EY) was paid $94,471.00 to offer its
independent perspective. A copy of the contract and RFP are attached.
In order to maintain independence, EY did not have a copy of the FIOS
review methodology.
Question 12. Why did the Department assert in its May 26, 2015
press release that its reviews showed violations in ``less than 1
percent of cases'' when the ``acceptance'' sampling methodology used by
FIOS to analyze the non-Navient services makes it impossible to draw
such conclusions? \2\ Who at FSA approved the substantive content of
the May 26, 2015 press release? Does he or she still oversee financial
institution oversight or compliance?
---------------------------------------------------------------------------
\2\ http://www.ed.gov/news/press-releases/us-department-education-
completes-review-major-student-loan-servicers.
---------------------------------------------------------------------------
Answer 12. Improving transparency in all we do is an important
principle for the Department and I am very committed to it. We are
currently reviewing the facts of this situation and the findings of the
Inspector General. We will followup with your staff to provide a more
detailed response.
Question 13. Why did the Department assert in its May 26, 2015
press release that its reviews showed violations ``in less than 1
percent of its cases'' when the small sample and methodology of its
sampling design preclude the reporting of a statistically valid
aggregate denial rate, and its own reported raw data indicated
incorrect denials in 8 percent of reviewed cases? Why did the
Department combine the program review of all four TIVAS in its May 26,
2015 press release?
Answer 13. We summarized the reviews to provide a brief and simple
explanation of the results. Our summary was not based on only those
borrowers who applied for the SCRA interest rate cap. We modeled our
review after the universe that DOJ used which was all eligible
servicemembers; not only those who applied.
We also provided in the press release a link to all of the
underlying reports completed in order to provide all of the details
about the reviews to be fully transparent.
Question 14. Why did the dataset FIOS used to review PHEAA
compliance with SCRA not exclude the more than 50 percent of reviewed
loans for which borrowers could not benefit from the 6 percent interest
cap?
Answer 14. This is attributable to error. The sample was pulled
incorrectly, and although the borrower's primary loan had an interest
rate of 6 percent or less, some of the borrowers had secondary loans
that had interest rates greater than 6 percent, so the actual number of
borrowers with all loans having an interest rate of 6 percent or less
was 16.
Question 15. Why did the second FIOS analysis of Navient credit
Navient with providing SCRA benefits to three servicemembers who did
not receive those benefits during the designated review period, and
only received them after the review period as the result of new SCRA
compliance procedures implemented in the wake of the Navient SCRA
scandal?
Answer 15. The borrowers were correctly included in the sample and
therefore should have been in the program review, but the borrowers
should not have been reported as having requested and been granted the
benefit. This situation had no impact on the number of borrowers
incorrectly denied within the sample. Ernst & Young was also engaged to
provide assurance regarding the accuracy of the results, mitigating any
potential errors by staff in the first review.
Question 16. Second Navient Review Methodology: a. Did this review
sample at the loan level or the borrower level? b. What was the
rationale for the sample design? c. What was the expected deviation
rate for the sample design? d. What was the tolerable deviation rate
for the sample design? e. What was the expected precision for the
sample design? f. Why has the Department never previously disclosed the
level of the review sample, the rationale for the sample design, the
expected deviation rate for the sample design, the tolerable deviation
rate for the sample design, and the expected precision for the sample
design? g. Why didn't FSA consult with or use a statistician to assist
with designing the sample it used in its program reviews?
Answer 16. Improving transparency in all we do is an important
principle for the Department and I am very committed to it. We are
currently reviewing the facts of this situation and the findings of the
Inspector General. We will followup with your staff to provide a more
detailed response.
Question 17. Why didn't FIOS recommend that all of the TIVAS--
especially PHEAA and Great Lakes, whose program reviews identified SCRA
compliance errors--review their borrowers to identify and correct all
potential instances of incorrect denial of the SCRA interest rate cap?
What corrective actions did FSA recommend for SCRA noncompliance with
these two servicers?
Answer 17. As a result of our oversight work and engagement with
our partner agencies, the Department has taken a series of steps to
ensure that any borrower who may have been improperly denied relief
will receive the benefit.
Recently, the Department has directed our servicers to review their
SCRA records, going back to the start of their contracts, to determine
whether there were any instances of servicemembers being improperly
denied the SCRA benefit based on the guidance that existed at that
time. In addition, I am pleased to report that we have initiated a
process to conduct a data match, based on current guidance, to
automatically provide credit for any servicemember who was on active
duty since Federal student loans became eligible for the benefit in
2008, including servicemembers who did not apply for the benefit.
Importantly, servicers were also directed to develop and implement
internal controls to prevent future errors. See the response to
Question 25 for additional actions taken by the Department to protect
servicemembers.
Question 18. Why didn't FIOS ask the TIVAS for a sample of SCRA
benefit denials?
Answer 18. Based on its knowledge of the servicers' systems, FIOS
did not believe that the servicers' databases contained data related to
SCRA benefit eligibility or denials. This has been confirmed by FSA
Business Operations. We wanted to look at all instances of compliance
and non-compliance with the SCRA-related regulations under the Higher
Education Act.
Question 19. The Department of Education told the Inspector General
that ``it was a management decision not to require further [TIVAS]
corrective actions for the periods reviewed.'' The Department also said
that this decision was ``not primarily based on a statistical
analysis.'' Please explain how this decision was made, who made it, and
what factors formed the basis for this decision. Similarly, what was
the basis for the Department's decision not to pursue further
corrective actions against Navient?
Answer 19. Due to the urgency of the issue, the Department's review
was not designed to be a formal statistical study but rather the review
of data to quickly assess compliance and to determine the need for
corrective or other actions. We currently are reviewing the findings of
the OIG report. We take OIG's feedback very seriously and will take any
appropriate steps to ensure that the Department's reviews of financial
institutions meet the highest standards. I am pleased to report that we
have initiated a process to conduct a data match and automatically
provide credit for any servicemember who was on active duty since
Federal student loans became eligible for the benefit. This would
provide the benefit to any servicemember who was on active duty, going
back to 2008, whether or not they had applied for the benefit. We look
forward to engaging with you as we move forward with that process.
Based upon the level of non-compliance, the Department used a
corrective action plan focused on the limited number of incidences, and
ensuring that the broader issue of servicemembers not ever applying for
the benefit was addressed prospectively in order to ensure that all
servicemembers receive the benefits they are entitled to automatically.
The corrective action plan already in place uses a DMDC data match so
that all eligible servicemembers will automatically get the SCRA
benefit without applying. In addition, we modified the servicing
contracts to provide premium service to all servicemembers and include
(i) specially trained staff to work with servicemembers, (ii) dedicated
web and phone services, and (iii) established premium pricing for
servicemember accounts to ensure the highest quality services and
resources. We also expanded our monitoring staff and increased focus on
explicit reviews of SCRA compliance. We established a dedicated mailbox
on StudentAid.gov where servicemembers can notify the Department of
potential harm. Separately, we also posted a notification of the DOJ
settlement and provided DOJ contact information for servicemembers.
Question 20. Given FSA's demonstrated inability to conduct an
accurate program review, does the Department plan to act to penalize
Navient based on the Department of Justice and FDIC findings? Does the
Department feel the need to conduct another review of Navient based on
those findings or will the Department defer to the investigation and
conclusions of the DOJ and the FDIC? Is the Department willing to fine,
to cancel the contracts of, or to otherwise penalize Navient based on
the DOJ and the FDIC findings?
Answer 20. We take very seriously the issues raised by the
Inspector General and will take any appropriate steps to ensure that
the Department's reviews of financial institutions meet the highest
standards.
As noted, while the Department worked closely with the Justice
Department in developing the relief provided to Federal student loan
borrowers under the Consent Order, under the Department's contracts
with loan servicers, we needed to determine whether Navient had
complied with the terms of that contract, the HEA and regulations and
the guidance we provided to determine if we had a legal basis to take
any action under the contract.
Question 21a. Given FSA's demonstrated inability to conduct an
accurate program review, how will the Department ensure that an
independent, thorough, reliable, statistically sound review of whether
Great Lakes, PHEAA, and Nelnet complied with SCRA during the time
period in question occurs? Is the Department willing to fine, to cancel
the contracts of, or to otherwise penalize the Great Lakes, PHEAA, and/
or Nelnet based on the results of any additional, reviews?
Answer 21a. We are currently reviewing and take very seriously the
issues raised by the Inspector General and will take any appropriate
steps to ensure that the Department's reviews of financial institutions
meet the highest standards.
Question 21b. Will the Department direct every TIVAS to
independently review every servicemember student loan based on the
Department of Defense's Defense Manpower Data Center data base from
June 19, 2009 to May 31, 2014 to identify servicemembers eligible for
SCRA benefits who did not receive them?
Answer 21b. The Department has directed our servicers to review
their records going back to 2008. In addition, we have been working to
find additional measures we can take to ensure that any Direct student
loan borrowers who were entitled to the interest rate cap and did not
receive it are made whole. To that end, I am pleased to report that we
have initiated a process to conduct a data match and automatically
provide credit for any servicemember who was on active duty since
Federal student loans became eligible for the benefit. This would
provide the benefit to any servicemember who was on active duty, going
back to 2008, whether or not they had applied for the benefit. We look
forward to engaging with you as we move forward with that process.
Question 22. Will the Department take corrective action to require
TIVAS to make whole any and all borrowers who were eligible for SCRA
benefits from June 19, 2009 to May 31, 2014 and didn't receive them?
Answer 22. After recent conversations with the OIG, on February 23,
2016, we asked each servicer to review its SCRA records, going back to
the beginning of their contract with the Department--to ensure that
there are no borrowers who should have received the benefit but did
not, in accordance with the Department's guidance at the time. If the
servicer discovers borrowers who did not receive the benefit even
though they submitted a written request and appropriate military
orders, they will apply the benefit and submit to FSA the number of
corrections made.
As noted above, we have been working to find additional measures we
can take to ensure that any Direct student loan borrowers who were
entitled to the interest rate cap and did not receive it are made
whole. To that end, I am pleased to report that we have initiated a
process to conduct a data match and automatically provide credit for
any servicemember who was on active duty since Federal student loans
became eligible for the benefit. This would provide the benefit to any
servicemember who was on active duty, going back to 2008, whether or
not they had applied for the benefit. We look forward to engaging with
you as we move forward with that process.
Question 23. Given the serious and basic flaws here, do you feel
that the Office of Federal Student Aid is equipped to do these kinds of
reviews? Will the Department move financial institution oversight out
of the Office of Federal Student Aid?
Answer 23. We are always seeking to improve our training,
operations, and policies to work in the best interest of borrowers.
FSA is equipped to conduct these types of reviews and is familiar
with the servicing records required by the Department's servicers under
the contracts and can determine if the servicer properly determined if
a borrower was eligible and the rate was properly applied. We take very
seriously the issues raised by the Inspector General and will take any
appropriate steps to ensure that the Department's reviews of financial
institutions meet the highest standards. The Department and FSA are
both committed to continuous improvement and will continue to look
across government and private industry for best practices in performing
reviews.
Question 24. Please provide any and all communication between the
Office of Federal Student Aid and Navient regarding this review.
Answer 24. Attached are communications between FSA and Navient
regarding the review. We are continuing to review our records and will
supplement this response as appropriate.
Question 25. What's the Department's full explanation for how this
happened, and how will the Department ensure that this never happens
again?
Answer 25. We take very seriously the issues raised by the
Inspector General and will take any appropriate steps to ensure that
the Department's reviews of financial institutions meet the highest
standards.
In addition, when the issues regarding SCRA arose, the Department
embarked on a comprehensive effort to ensure that all eligible
servicemembers received the SCRA benefit to which they are entitled.
In December 2013, we instructed our Direct Loan servicers to do a
match with a DOD database to identify SCRA eligible borrowers.
In April 2014, we instructed servicers to conduct outreach to the
potentially eligible SCRA borrowers identified through the match and
make them aware of the benefit and solicit, and process, the paperwork
required at that time to grant the borrowers the benefit.
In the few months that followed, we further simplified the process
and requirements for servicers and borrowers. In May 2014, we
instructed our servicers to match their portfolios against the DOD
database of active duty service members and proactively and
automatically grant the benefit to servicemembers.
More specifically, we instructed our servicers to identify all
servicemembers who were on active duty during the year, and
automatically grant the SCRA benefit for the entire time the eligible
borrower was on active duty.
As a result of the new process, eligible Direct Loan borrowers on
active duty and in the DOD database receive the benefit without having
to apply for the benefit or submit copies of their orders, as was the
case under our prior regulations. This addresses the most significant
issue of potentially more than 90 percent of eligible servicemembers
not applying for the benefit.
To help address borrowers with loans issued under the older bank-
based FFEL program, we issued guidance in August 2014 to the FFEL
community informing them of our actions for Direct Loan borrowers and
permitting them to take similar actions for FFEL borrowers.
We modified our servicing contracts to provide enhanced service to
all servicemembers, including specially trained staff to work with
servicemembers, dedicated support, and have established premium pricing
for servicemember accounts to ensure that servicers provide high
quality services and resources.
We established a mailbox on StudentAid.gov where servicemembers and
other borrowers can notify the Department of potential harm.
Separately, we also posted a notification of the DOJ settlement and
provided DOJ contact information for servicemembers.
We now perform quarterly SCRA reviews of servicers to ensure they
are correctly applying the match and automatically granting the
benefit. The first review of servicers' compliance with SCRA
requirements illustrates consistent servicer processing of these
borrower benefits, as 332 of the 335 accounts reviewed passed
examination. And beginning this month, we will monitor as many as 200
calls per servicer each month on SCRA.
And, in October 2015, we issued regulations requiring FFEL
servicers to follow the same procedures we developed for Direct Loan
borrowers.
As noted above, we have been working to find additional measures we
can take to ensure that any Direct student loan borrowers who were
entitled to the interest rate cap and did not receive it are made
whole. To that end, I am pleased to report that we have initiated a
process to conduct a data match and automatically provide credit for
any servicemember who was on active duty since Federal student loans
became eligible for the benefit. This would provide the benefit to any
servicemember who was on active duty, going back to 2008, whether or
not they had applied for the benefit. We look forward to engaging with
you as we move forward with that process.
attachments
U.S. Department of Education,
Office of Federal Student Aid,
New York, NY 10005,
May 20, 2014.
John F. Remondi,
Chief Executive Officer,
Navient Corporation,
300 Continental Drive,
Newark, DE 19713.
UPS Tracking# 1ZA879640293294699
Re: Program Review, Servicer ID: 700578, PRCN: 20143025005
Dear Mr. Remondi: This letter notifies Navient Corporation
(Navient) that a program review has been scheduled at your institution
beginning on June 2, 2014 through June 6, 2014. The review will assess
Navient's participation in the William D. Ford Federal Direct Loan
(Direct Loan) Program and the Federal Family Education Loan (FFEL) Loan
Programs and its compliance with provisions of the Servicemembers Civil
Relief Act of 2003 (SCRA) and the Higher Education Opportunity Act
(HEOA), dated August 14, 2008. The HEOA amended Sections 428(d) and 438
of the Higher Education Act of 1965, as amended. The review will cover
the period July 1, 2008 through April 30, 2014, but may be expanded as
appropriate.
The U.S. Department of Education's (ED) authority to examine
program and financial records and conduct reviews is reflected at 34
CFR 682.414(c). We will contact you in writing concerning the
documents, records and data files that Navient must supply prior to and
during the review. Please make arrangements for all required
information, hard copy, and electronic, to be available when requested.
Included with this letter is Attachment A: Information Required for
the Review which lists the general information Navient must supply for
the review. Please provide the remaining information to this office by
May 22, 2014. Also, please make arrangements for the review team to
have access (view and print capability) to any computer databases
containing information related to the FFEL and Direct Loan Programs.
The review team will also require access to Navient's administrative
staff.
At the start of the review, the review team will conduct an
entrance conference with you and your staff. We will contact you to
establish a time for the conference. Please inform the appropriate
program administrative staff, so they or their designees can attend the
entrance conference and remain available during the review.
During the review, we request that Navient provide a secure working
space for the review team to ensure the confidentiality of the
financial records being reviewed and the security of ED equipment. We
will also require access to a telephone, Internet connections, copier,
fax machine, and printer.
At the conclusion of the review, the review team will conduct an
exit conference to discuss the preliminary review findings. Your
presence at the exit conference would be appreciated. If it is not
possible for you to attend, we request that you designate a
representative.
If you have any questions, please contact Naomi Facey at 646-428-
3853 or by e-mail at [email protected] Thank you for your
cooperation.
Sincerely,
Susan C. Ferraiole,
Compliance Manager, Eastern Division.
attachment a: information required for the review
Please provide all remaining information to the lead reviewer by
May 22, 2014. Provide as much information as possible in electronic
format. If any of this information cannot be provided, please note it
in writing.
Servicer ID: 700578
General:
All policies and procedures for acceptance, review,
approval, and denial of requests for Servicemember Civil Relief
Act (SCRA) benefits for borrowers in active military
service.\1\
---------------------------------------------------------------------------
\1\ Sallie Mae has provided all policies, procedures, and training
associated with SCRA guidance, as of May 16, 2014.
---------------------------------------------------------------------------
Sample:
Universe of borrowers considered for SCRA benefits
including all borrowers in the Department of Defense database
identified as having military service.
______
U.S. Department of Education,
Office of Federal Student Aid,
New York, NY 10005,
May 30, 2014.
Patricia Potomis, Senior Director,
Navient Corporation,
220 Lasley Avenue,
Wilkes-Barre, PA 18706.
Re: Program Review, Servicer ID: 700191 and 700578, PRCN: 20143025006
and 20143025005
Dear Ms. Potomis: On May 20, 2014, we notified Navient Corporation
(Navient) of an upcoming program review scheduled to begin on June 2,
2014, at your institution.
Included with this letter is Attachment A which lists the
information Navient must supply to the U.S. Department of Education.
Also included is the selected borrower samples in a password-protected
WINZIP file; please note the tabs within the Excel files that identify
the review populations for both of the referenced reviews. The password
will be sent separately. This data should be made available at the
beginning of the program review on June 2, 2014.
Documentation may be provided in hard copy or electronically. If
any of the information submitted contains sensitive personal data,
Navient must place the file(s) in a password-protected WINZIP archive
or other secure means.
Thank you for compiling the materials referenced in the
attachments, and for your cooperation. If you have any questions,
please call 646-428-3771 or e-mail at [email protected]
Sincerely,
Susan C. Ferraiole,
Compliance Manager, Eastern Division.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. Department of Education,
Federal Student Aid,
New York, NY 10005,
January 8, 2015.
John F. Remondi,
Chief Executive Officer,
Navient Corporation,
300 Continental Drive,
Newark, DE 19713.
UPS Tracking# 1Z A87 964 01 9477 6794
Re: Program Review, Servicer ID: 700578, PRCN: 20152025099
Dear Mr. Remondi: This letter notifies Navient Corporation
(Navient) that a program review has been scheduled to begin on January
20, 2015 through January 30, 2015. The review will assess Navient's
participation in the William D. Ford Federal Direct Loan (Direct Loan)
Program and the Federal Family Education Loan (FFEL) Loan Programs and
its compliance with provisions of the Servicemembers Civil Relief Act
of 2003 (SCRA) and the Higher Education Opportunity Act (HEOA), dated
August 14, 2008. The HEOA amended Sections 428(d) and 438 of the Higher
Education Act of 1965, as amended. The review will cover the period
June 19, 2009 through May 31, 2014, but may be expanded as appropriate.
The U.S. Department of Education's (ED) authority to examine
program and financial records and conduct reviews is reflected at 34
CFR 682.414(c). We will contact you in writing concerning the
documents, records and data files that Navient must supply prior to and
during the review. Please make arrangements for all required
information, hard copy, and electronic, to be available when requested.
If any of the information submitted contains sensitive and/or
personal data, Navient must place the file(s) in a password-protected
WINZIP file or other secure means. Any passwords must be telephoned or
emailed under separate cover to Naomi Facey.
At the start of the review, the review team will conduct an
entrance conference via conference call with you and your staff to
discuss the review process. We will contact Navient to establish a time
for the conference. Please inform the appropriate program
administrative staff, so they or their designees can attend the
entrance conference and remain available during the review.
At the conclusion of the review, the review team will conduct an
exit conference via conference call. Your presence at the exit
conference would be appreciated. If it is not possible for you to
attend, we request that you designate a representative.
If you have any questions, please contact Naomi Facey at 646-428-
3853 or by e-mail at [email protected] Thank you for your
cooperation.
Sincerely,
Susan C. Ferraiole,
Compliance Manager, Eastern Division.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 4:10 p.m., the hearing was adjourned.]