Dear Friends and Colleagues:

We are asking ADA Watch coalition organizations and others to sign-on to the following letter to Senator James Jeffords (I-Vt) in opposition to Gerald Reynolds, President Bush's nominee for Assistant Secretary for the Department of Education's Office of Civil Rights (OCR). The letter also includes questions we would ask of Mr. Reynolds during his hearing. (These questions have already been distributed to HELP committee staff.) The hearing is scheduled for next Tuesday. If you can, please send email response by COB Friday, February 22nd. If you cannot respond that quickly, do so when you can and your message will be forwarded to Sen. Jeffords. 

Take Action: Sen. Jeffords is likely to be the deciding vote which could stop this nomination in committee. To express your concern, please call his office at: 202-224-5141 or email him at:    

Dear Senator Jeffords:

Gerald Reynolds, President Bush's nominee for Assistant Secretary for the Department of Education's Office of Civil Rights (OCR), has a record that raises concerns for a number of reasons. This Assistant Secretary position is of vital importance to people with disabilities and to all Americans. As you know, OCR is charged with ensuring that schools and colleges comply with Federal civil rights laws, including requirements on race and gender equity and access for people with disabilities. It investigates charges of discrimination and provides technical assistance to institutions to help them comply with federal laws.

Three federal laws apply directly to the rights of students with disabilities. In 1975, Congress enacted what is now called the Individuals with Disabilities Act (IDEA) to end persistent abuses, such as public schools refusing to educate children with disabilities or giving them a third-rate education. IDEA requires that states and local education agencies provide a "free and appropriate public education" (FAPE) for all children with disabilities. FAPE consists of specially designed teaching and individualized support. To the maximum extent possible, FAPE must help students with disabilities stay in the regular classroom and learn what all the other children learn. Local education agencies are responsible for providing the comprehensive services and procedural protections in IDEA, and states must ensure compliance. Privately funded schools do not have to provide IDEA services.

Two other federal statutes prohibit discrimination in both public and private schools. Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits recipients of federal funds from discriminating against people with disabilities. All states, all public schools, and some private schools receive federal funds. Further, the Americans with Disabilities Act (ADA) prohibits disability discrimination in all services, programs, and activities provided or made available by state and local governments or their agencies, and in places of public accommodation. The ADA applies to states, public schools, and private schools which are not controlled by religious organizations. Discrimination includes exclusion and denial of comparable benefits and services, and violations of extensive regulations.

In addition to his obvious lack of education policy experience, Mr. Reynolds has been an outspoken opponent of the same federal civil rights protections he would now be charged with enforcing. He has shown disdain not only for the means by which we protect the civil rights of students, but also for the government's involvement in this protection. Mr. Reynolds is an active member of the Federalist Society which opposes Federal civil rights protections, and he is a former employee of the "Center for Equal Opportunity," an organization with a record of hostility towards affirmative action, the Americans with Disabilities Act (ADA) and other civil rights protections. Mr. Reynolds himself has described affirmative action as the "Big Lie -- a corrupt system of preferences, set asides, and quotas."

In recent years, as discrimination has become less overt, civil rights litigants have come to utilize the disparate impact or "effects test" when discrimination is not blatantly evident. This standard's use has been critical to the Department of Education's ability to detect and eliminate discriminatory educational practices. As Assistant Secretary for the Office of Civil Rights, it would be Gerald Reynolds' responsibility to use the standard to eliminate discriminatory education practices. With the Supreme Court's decision in Alexander v. Sandoval and the lack of private right of action, it will be crucial for OCR to enforce its disparate impact regulations. However, Mr. Reynolds has consistently expressed opposition to the disparate impact standard. Were his advocacy efforts to prove successful, meaningful access to justice would be denied to a large majority of discrimination victims whether that discrimination is based on race, sex, national origin, or disability status. 

The advances of the disability rights movement were modeled in large part after the successes of the larger civil rights movement. The landmark passage of the Americans with Disability Act (ADA) was a national statement of independence and empowerment for citizens with disabilities and provides hard-fought federal protections to promote inclusion and equal opportunity. Many in the disability community are understandably concerned that Mr. Reynolds' hostility towards federal civil rights protections will weaken enforcement of Federal protections such as the ADA, IDEA, and Section 504 of the Rehabilitation Act.  

We are greatly interested in Mr. Reynolds' response to the following questions:

-- The Assistant Secretary for the Department of Education's OCR is responsible for enforcing federal protections which ensure that students with disabilities receive "reasonable accommodations" to access education. Mr. Reynolds has aggressively fought against federal protections that he considers "special preferences." Does he consider such reasonable accommodations for disability to be "preferences?" Does he consider the provision of assistive technology under ESEA Title III a "preference?" Will Mr. Reynolds responsibly ensure that students with disabilities receive appropriate accommodations, assistive technology, and other rights afforded them under the protections of ESEA?

-- What does Mr. Reynolds think of the enforcement mechanisms for IDEA? Does he think that IDEA should retain their enforcement mechanisms for IDEA? Should the enforcement mechanisms be the same as for other civil rights protections? 

-- Mr. Reynolds has consistently expressed opposition to the disparate impact standard. With such a record, what will come of the Department of Education's use of the standard to detect and eliminate discriminatory education practices? 

-- Mr. Reynolds has been an outspoken proponent of school vouchers. Vouchers often result in selectivity when private schools decline to accept vouchers in order to avoid providing accommodations for students with disabilities. Findings show that students with disabilities are often denied schooling at private schools because of the additional cost of accommodations.      

Schools receiving public monies through voucher programs have sought to exempt themselves from Federal and state law. Seventeen of Milwaukee's private and religious voucher schools, for example, faced with investigations by the Wisconsin Department of Public Instruction (DPI) for alleged violations of the state¹s voucher law, contested the state agency¹s authority to enforce the law. The schools claimed that their private status and the alleged lack of appropriate procedural regulations puts them beyond the reach of any oversight and enforcement of the voucher statute by DPI.

If vouchers are found to be constitutional, will Mr. Reynolds advocate for requiring voucher schools to accept special education students? Will Mr. Reynolds enforce Federal protections for special education students equitably in both public and private settings?  

-- Is Mr. Reynolds aware that USOE reported to Congress that in the 2000 Report that nationally, the percentage of children with only orthopedic impairments integrated into regular classes for 80% or more of the school day was only 47%. In some states this number was as low as 18%, perpetuating unnecessary segregation of children with disabilities? How will Mr. Reynolds address this segregation? 

-- The general counsel Roger Clegg and director Linda Chavez of the Center for Equal Opportunity, which Mr. Reynolds is closely associated with, are notorious for their vitriolic criticism of the ADA, call for it to be eviscerated and have supported every legal decision such as the emerging states' rights jurisprudence of the Supreme Court that has undercut the reach and scope of the ADA.

Roger Clegg testified before Congress and complained that the Clinton Administration (often criticized by the disability community for being too lax in enforcing the ADA) was too aggressive in enforcing the ADA. He has called the ADA a "muddle," is critical of its economic and social costs, as well as its alleged "irrationality." Does Mr. Reynold's share the views of his former boss on the ADA? How aggressively will he work to enforce the ADA, IDEA, 504 and other federal protections for students with disabilities? How can you reassure persons with disabilities that you will zealously protect their rights against violations by educational entities at all levels of the educational system?

-- Mr. Reynold's Federalist Society colleague, Jeffrey Sutton has been an active opponent of Federal civil rights and disability rights protections. Representing the State University of Alabama before the Supreme Court in the Garrett case, Mr. Sutton successfully argued that State's rights trump civil rights. Does Mr. Reynolds believe that 14th Amendment rights/ Title II of the ADA/Section 504 rights of students with disabilities to equal protection take precedence over the 11th Amendment rights of state sovereign immunity? In light of the Garrett decision, how will Mr. Reynolds ensure that students with disabilities in public universities are afforded an equal education?

The undersigned organizations and individuals appreciate your long record of leadership on disability and educational rights for Americans. We oppose the nomination of Mr. Reynolds because of his lack of education policy experience and because his positions and influence on the enforcement of Federal civil rights protections would severely limit educational opportunities for Americans with disabilities.      

ADA Watch Action Fund   
2000 M Street, NW, Suite 400
Washington, DC 20036

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