Due process may not be as sexy a constitutional right as the First or Second Amendments, but it’s one that all Americans need to defend.
On Tuesday morning, the Senate Health, Education, Labor, and Pensions (HELP) Committee interviewed Catherine Lhamon, President Joe Biden’s pick to lead the Department of Education’s Office for Civil Rights, which, among other things, oversees the implementation and enforcement of anti-sex discrimination regulations, commonly referred to as Title IX. Lhamon’s answers to several questions should raise civil rights concerns, but because her answers came in response to combatting campus sexual assault, they will be ignored by most media outlets and Democrats.
In May 2020, Lhamon tweeted that then-Education Secretary Betsy DeVos “presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity. Today’s students deserve better, including fair protections consistent with law.”
Lhamon’s tweet was wildly inaccurate, as DeVos’ Department of Education saw the introduction of due process rights for students accused of sexual assault and harassment, something Lhamon worked to dismantle when she worked for the Obama administration. DeVos’ rules did not take “us bad to the bad old days,” they defined sexual assault and harassment and ordered schools to provide accused students an opportunity to defend themselves, contrary to what Lhamon, Democrats, and the media want for students – which is immediate punishment based solely on an accusation.
Sen. Richard Burr (R-NC) asked Lhamon about this tweet during the hearing. Lhamon defended her tweet. This breaks with another one of Biden’s contentious nominees, Neera Tanden, who, at the very least, tried to distance herself from one of her most inflammatory tweets.
Lhamon, extraordinarily, stands by her inflammatory tweet that current regs would allow students to “rape” with “impunity.” Extraordinary.
— KC Johnson (@kcjohnson9) July 13, 2021
Upon further questioning from Burr, Lhamon also asserted that she rejects the presumption of innocence for accused students and claimed that federal Title IX regulations don’t require it. Defense attorney Scott Greenfield, however, refuted this claim and linked to the section of the regulations that do require the presumption of innocence. Section 106.45 (b)(1)(iv) of the Education Department’s Title IX rules state:
Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
Nominee to head DOE Office of Civil Rights, Catherine Lhamon, asserts that she does not support the presumption of innocence and that the regulations do not require it.
They do. Section 106.45(b)(1)(iv).https://t.co/XMGNaBIFGt
— Scott Greenfield (@ScottGreenfield) July 13, 2021
When pressed further, Lhamon said she wouldn’t support the presumption of innocence but would say that Title IX adjudicators “should be open to the possibility” that accused students may not be guilty of the accusations against them.
In response to question from Sen. Burr, Lhamon again won’t say that she endorses the presumption of innocence; will only say that in “civil rights investigations,” TIX adjudicators “should be open to the possibility” that acc’d students aren’t guilty.
— KC Johnson (@kcjohnson9) July 13, 2021
As The Dispatch’s David French noted, Lhamon “is taking positions rebuked by federal and state courts across the land.”
Biden’s nominee is taking positions rebuked by federal and state courts across the land. https://t.co/CitT0oaaxJ
— David French (@DavidAFrench) July 13, 2021
Indeed, as author and history professor K.C. Johnson has documented, hundreds of students filed lawsuits following the Obama administration’s changes to Title IX regulations, which heavily discouraged due process and the presumption of innocence. Further, dozens of courts across the country, including appellate courts, have upheld students’ right to due process even when accused on college campuses.
Your constitutional rights don’t end when you step foot on a college campus, but that is precisely what Lhamon is advocating.
And she’s always advocated that. The Leadership Conference On Civil and Human Rights tried to claim that, while working for the Obama administration, Lhamon “made significant progress in realizing our nation’s federal civil rights promises for all students.” The organization added that if confirmed, Lhamon would “ensure justice for all students,” enforce students’ civil rights,” and “investigate systemic discrimination in schools.”
Catherine Lhamon was unanimously confirmed by the Senate to lead @EDCivilRights from 2013-2017.
Under her leadership, OCR made significant progress in realizing our nation’s federal civil rights promises for all students. We need her in this vital role again. #ConfirmLhamon pic.twitter.com/DOyxfwF8RY
— The Leadership Conference (@civilrightsorg) July 13, 2021
Lhamon has proven she doesn’t care about these issues. Ensuring justice for all students includes male students and those accused of sexual misconduct, which Lhamon has categorically rejected. Enforcing students’ civil rights includes due process rights, which Lhamon has demonized. She also refused to accept that male students faced systemic discrimination in part thanks to her own policies, which made them campus targets.
As a result of Lhamon’s war on truth and civil rights, more than 700 lawsuits were filed against universities by students claiming they were denied due process. More than 200 favorable court decisions upheld these students claims (many of the remaining lawsuits either settled without court decisions or are still in the legal process).
Obama’s Education Secretary, Arne Duncan, tried to promote Lhamon’s nomination by saying she “treats colleagues, partners, students, and educators with empathy and respect, even those with whom she disagrees.” This is also false, as Lhamon either ignored those who argued for basic due process rights to misrepresenting them, as she did in her 2020 tweet in which she insisted that such rights amounted to allowing students to “rape” with “impunity.”
As K.C. Johnson wrote in National Review, Lhamon threatened schools with a loss of funding if they didn’t find accused students responsible.
“Colleges received Lhamon’s message loud and clear: Finding accused students guilty, even in dubious cases, would ward off bad publicity and keep schools in the OCR head’s good graces,” Johnson wrote.
If Lhamon is confirmed, students will be brought back to an era where mob mentality ruled and where constitutional protections were thrown out for inconvenient accusations.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.