Even though Catherine Lhamon’s tenure in the Obama administration proved she was decidedly anti-civil rights, she has been confirmed to lead the Education Department’s Office for Civil Rights under the Biden administration.
Lhamon was one of the biggest purveyors of removing due process, common sense, and any semblance of basic fairness from college’s adjudication of sexual misconduct accusations. For the past five or six years in particular, Lhamon’s view of campus “justice” has been repeatedly rebuked in hundreds of court decisions finding that the Obama-era way of adjudicating campus sexual assault claims denied accused students a chance to defend themselves. These rulings came after hundreds of students filed lawsuits, providing evidence that colleges ignored exculpatory evidence that would have cast significant doubt on the allegations against them.
Lhamon supported these kinds of inquisitions, even threating to withhold funding from schools that didn’t follow the Obama administration’s anti-due process policies.
Even though former Education Secretary Betsy DeVos withdrew the Obama-era guidelines and implemented her own, which included basic due process rights and a normalized definition of sexual harassment, many schools continued to treat accused students as guilty without any possibility of innocence.
Lhamon didn’t shy from supporting such a view during her confirmation hearing in July. As They Daily Wire reported at the time, Lhamon defended a 2020 tweet that insisted DeVos’ due process protections were “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”
She added: “Today’s students deserve better, including fair protections consistent with law.”
That’s exactly what DeVos’ rules did, backed by the hundreds of court decisions mentioned earlier. Lhamon’s policies were consistently rebuked and failed to follow law established by the U.S. Supreme Court.
At her confirmation hearing, Lhamon stood by her tweet. When questioned by Sen. Richard Burr (R-NC) further, Lhamon also dismissed the presumption of innocence for accused students, falsely claiming 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.
After being pressed on the issue, Lhamon eventually lamented that Title IX adjudicators “should be open to the possibility” that accused students may not be guilty of the accusations against them.
The Senate Committee on Health, Education, Labor and Pensions (HELP) deadlocked on pushing Lhamon’s nomination through, with all Republicans voting against her nomination. Her nomination was saved when the full Senate voted to move the nomination out of committee. She was confirmed on Wednesday.
In National Review, author and history professor K.C. Johnson denounced the confirmation as “another Biden betrayal.”
“Lhamon’s confirmation revives the era of Title IX kangaroo courts. Expect the new OCR head to quickly dismantle the DeVos regulations and replace them with new mandates requiring colleges to prioritize the rights of campus complainants. For the wrongly accused in campus sexual-assault adjudications, the courts — an imperfect vehicle, often requiring years of commitment and six-figure legal fees — will once again be the best hope for achieving justice,” Johnson wrote.
Greenfield, the defense attorney, was more colorful:
[Lhamon] would make sure “survivors” got what they wanted. She would make sure the accused invariably lost. Screw equal protection. Screw due process. They were all on board for the inquisition and Lhamon was their Torquemada.
But the others? The party of civil rights? The party of fairness and tolerance? The party that cared about the fate of black men, disproportionately falsely accused? Not one Democratic senator voted against Lhamon, and that meant Kamala Harris had to cast the deciding vote to break the tie. And she did. Who gave Catherine Lhamon the authority to break the law, ignore the Constitution, deprive (mostly, but not exclusively) male students of due process, of the chance to defend themselves against false accusations, against retaliatory accusations, of post-hoc regret, against lies? The Senate did.
One thing that may help accused students for a while is the fact that DeVos followed the Administrative Procedures Act when crafting her guidelines. The Obama administration did not do this. Lhamon will have to follow the APA in order to replace the DeVos guidelines. Still, as Greenfield noted, Lhamon will probably disregard this anyway and release a “Q&A” reinterpreting the DeVos rules to fit her own views.