Brian Jones Nomination – Testimony of Wade Henderson

Location: Senate Committee on Health, Education, Labor and Pensions

Chairman Kennedy, Senator Gregg and members of the Committee: I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). I appreciate the opportunity to present to you the views of the Leadership Conference regarding the nomination of Brian Jones as General Counsel for the Department of Education.

The LCCR is the nation’s oldest and most diverse coalition of civil rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, the Leadership Conference seeks to further the goal of equality under law through legislative advocacy and public education. The LCCR currently consists of over 180 organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups. I am privileged to represent the civil and human rights community in submitting testimony for the record to the Committee.

While it is unusual for the Leadership Conference on Civil Rights to oppose an Executive Branch nomination, our careful review of Mr. Jones’s record leads to the conclusion that his extreme views on civil rights enforcement, including enforcement that is the responsibility of the Department of Education, threatens a radical change in the Department’s approach to issues of discrimination in every area – race, ethnicity, sex, disability, and age – that should lead the Committee to reject his nomination.

We have waited, with anticipation, for the President’s education plan entitled, Leave No Child Behind, which has promised to educate every child in America to his or her full potential. Secretary Paige came before this very committee and said a primary objective of the President’s plan was to “close the inexcusable achievement gap” that the education system “currently fosters between poor and minority children and other students.” Unfortunately, we believe the nomination of Brian Jones will do nothing to advance either equality of educational opportunity or the President’s education plan. While we commend President Bush’s plan in theory, we are concerned about its implementation in practice, and we are especially concerned about the nomination of an individual who is hostile to so many of the policies that have expanded equality of educational opportunity for millions of people across our country.

The General Counsel of the Department of Education is the chief legal officer of the Department and is responsible for representing the Department’s views on all legal matters before the Justice Department, including civil rights issues. All Department of Education civil rights cases that are referred to the Justice Department are referred under the aegis of General Counsel. The General Counsel is extremely influential on all civil rights legal and policy issues within the Department, including the work of the Office for Civil Rights. Mr. Jones’ extreme positions on civil rights issues, however, are antithetical to the performance of these duties of the General Counsel.

The Secretary of Education frequently seeks advice from the General Counsel on matters raised by the Assistant Secretary for Civil Rights. The General Counsel is also the point of contact with the Department of Justice and the White House Counsel, and thus is in a position to exercise discretion in determining which civil rights cases will be referred to the Department of Justice for enforcement. These include school desegregation actions, suits challenging discrimination in higher education, and actions under Title IX of the Education Amendments of 1972 (prohibiting sex discrimination) and Section 504 of the Rehabilitation Act of 1973 (prohibiting disability discrimination). This requires meaningful, rather than “pro forma,” review by the General Counsel. Brian Jones would also play a major role in deciding whether the Department would intervene in civil rights litigation before the U.S. Court of Appeals and the Supreme Court.

We acknowledge that a President is ordinarily entitled to deference in his choice of executive branch appointees, but the nomination of Brian Jones overcomes that presumption for several reasons.

In his brief career, Brian Jones has taken adverse positions on civil rights issues of great concern to the membership organizations of the Leadership Conference. Mr. Jones position on education and legal policy issues are not only contrary to fundamental civil rights protections, but in many ways also directly contradict the mission of the Department of Education. His positions on policies that are designed to advance equality of educational opportunity for all persons in our society are, to say the least, troubling.

First, one of our most serious concerns about Mr. Jones’s nomination relates to his views about the disparate impact/effects standard in civil rights enforcement. The disparate impact standard is crucial to redress practices that appear to be neutral but in fact cause discriminatory effects and are unjustified educationally. This standard is recognized in long-standing regulations under Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race or ethnicity in programs receiving federal funds. In addition, the Department’s regulations under Title IX, Section 504, Title II of the Americans with Disabilities Act, and the Age Discrimination Act of 1975, all utilize a disparate impact/effects standard. For more than three decades, Administrations of both political parties have supported the use of the disparate impact/effects standard, which has been a central component of the Department’s enforcement mechanism and has helped redress civil rights violations for millions of Americans. Moreover, as a result of the recent Supreme Court decision in Alexander v. Sandoval prohibiting private parties from suing to enforce the Title VI regulations, it is even more critical that key officials at the Department of Education, who can and are legally required to provide such enforcement, remain firmly committed to the disparate impact/effects standard.

Mr. Jones, however, has severely criticized the disparate impact standard. In testimony before the predecessor of this Committee in 1995, Jones urged Congress to “reform” civil rights laws by requiring proof of intent to discriminate, which would have eliminated the disparate impact standard. He criticized the unanimous opinion by Chief Justice Burger applying the disparate impact standard to federal employment discrimination law in Griggs v. Duke Power Company in 1971 and the use by the EEOC of “demographic disparities in the workplace to discern discrimination in employment.” (See Testimony of Brian W. Jones before Senate Labor and Human Resources Committee on Affirmative Action in Employment, June 15, 1995).

Although Mr. Jones has little professional experience relating to education, he has also appeared to criticize the use of the disparate impact standard by the Department of Education itself under Title VI. In an article for the Federalist Society, on which he serves as vice-chair of the civil rights practice group, Mr. Jones labeled the Resource Guide on Testing issued by the Department’s Office of Civil Rights, which explained that education tests with a discriminatory impact can violate Title VI unless properly justified, as an effort to “extend the reach of disparate impact theory under Title VI.” (B. Jones, “The U.S. Department of Education and Two Court Decisions Probe the Limits of ‘Disparate Impact’ Theory,” Federalist Society Civil Rights Practice Group Newsletter, Vol.3(2) 1999). Mr. Jones’s apparent opposition to the disparate impact standard would clearly conflict with the responsibility of the Department’s General Counsel to help ensure effective enforcement of civil rights laws and regulations.

Second, Mr. Jones is adamantly opposed to affirmative action, including affirmative action in highe