Education

The Biggest Enemy of Campus Due Process from the Obama Years Is Back

Catherine Lhamon in MSNBC in 2018. (MSNBC/via YouTube)
Senators should reject President Biden’s nomination of Catherine Lhamon to her old job in the Education Department.

‘One of the most sweeping bipartisan judicial rejections of an administration’s policy in decades,” commentator David French recently noted, involved the Obama administration using Title IX to undermine due process on American college campuses. The administration’s record, French wrote, “has been rejected by judges across the ideological spectrum and has cost universities millions.”

Given this legacy, George Mason law professor David Bernstein hoped that “legal actors responsible for rather blatant constitutional violations, such as Obama administration OCR [Office of Civil Rights] Chief Catherine Lhamon, will not in the future be rewarded with plum political appointments.” Yet the Biden administration has recently selected Lhamon to return to her old perch atop the OCR, the Education Department office with jurisdiction over Title IX — the federal law that bans gender discrimination in education — and racial-discrimination issues.

Perhaps no public figure in the past decade has done more to decimate the rights of accused students than Lhamon. No wonder that FIRE, the scrupulously non-partisan campus-civil-liberties organization, denounced her nomination and urged senators to reject it unless she committed, under oath, to upholding specific due-process provisions in Title IX tribunals. Given her record, it seems extremely unlikely that she would ever do so.

In 2011, the Obama administration invoked Title IX to address what it considered a surge in campus sexual assaults. The resulting “Dear Colleague” letter mandated a series of procedural changes making guilty findings more likely to result from campus tribunals. The policy’s underlying assumption was that one-sided procedures would change campus culture and lead otherwise-reluctant victims to file reports with their schools. After taking over at OCR in 2013, Lhamon unilaterally produced a second, lengthy guidance document, taking aim at schools’ allowing accused students to conduct cross-examination (most schools already prevented students’ lawyers from doing so) and cautioning universities against prioritizing the due-process rights of the accused.

Lhamon purported to believe that colleges and universities counterintuitively protected accused students and treated sexual-assault victims with disdain, and that federal intervention was needed to “radically change” that dynamic. As a result, while in office she mostly confined herself to meetings with university administrators or other sympathetic audiences, such as the powerful accusers’ rights group Know Your IX and Rolling Stone reporter Sabrina Rubin Erdely, to whom she gave a lengthy interview in 2014. Erdely’s quickly debunked article detailed a University of Virginia student’s claim of being raped by a fellow student — a student who, Erdely failed to understand, didn’t even exist. Nonetheless, confronted with an accuser who made everything up, the UVA administration, faculty, and student body rushed to accept the student’s tale. This episode flatly contradicted Lhamon’s view that university cultures denigrate victims (real or imagined), but she never seemed to care. “We continue to stand by the statements Catherine made during her interview with Rolling Stone,” an OCR spokesperson told reporter Chuck Ross at the time.

Lhamon’s primary focus at OCR was leveraging federal pressure to force colleges to adopt ever-more-one-sided approaches to adjudicating campus sexual assault. Her tenure coincided with the Obama administration’s championing of the “single investigator” model, in which a single figure hired by the campus Title IX coordinator serves as the equivalent of police officer, prosecutor, judge, and jury at once. Lhamon demanded that universities accept her interpretation of Title IX or lose federal funds: “Do not think it’s an empty threat,” she told one conference of campus administrators. All of this was accomplished with virtually no congressional oversight — during her four years at OCR, Lhamon faced around six minutes of tough questioning in a public hearing (from then-senator Lamar Alexander) and two letters challenging the legal basis for her actions (from Senator James Lankford).

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. As one former OCR lawyer recently conceded, “We did see some bad cases in the Obama era, cases where it basically didn’t matter what evidence there was. The college was going to find against the defendant, the male defendant, no matter what. I think the schools felt pressure under the Obama guidance.”

A policymaker who valued candor might have acknowledged the harm her policies had caused while rationalizing it as the necessary cost of achieving a greater good. Instead, reflecting on her time in office three years ago, Lhamon fantastically described herself as having “been aggressive in protecting accused students’ rights.” Accused students, many of whom offered compelling evidence rebutting their schools’ guilty findings, unsurprisingly disagreed. Hundreds turned in desperation to the courts.

One student found guilty during Lhamon’s tenure produced texts from his accuser discussing her need to come up with a “lie” about their consensual encounter; another uncovered video showing him several steps away from his accuser at the time she alleged she was assaulted on a crowded dance floor. A topic that before 2011 had generated one or two federal lawsuits per year now produced one or two federal lawsuits per week. Harvard Law School professor Elizabeth Bartholet described the atmosphere Lhamon had helped create: “When you get things like the federal government pressuring universities to create a sexual assault process that lacks adequate due process for those accused, you’re going to get students trying to protect themselves.”

While courts typically defer to colleges and universities in academic-discipline cases, there have been 200 decisions favorable to students accused under Title IX since the Obama administration’s policy change. Federal appeals courts covering 29 states from Vermont to Alaska have issued rulings making it easier for wrongly accused students to sue their universities for gender discrimination. As then-circuit judge Amy Coney Barrett recognized in a pathbreaking 2019 opinion, Obama-era guidance documents and Lhamon’s “accompanying pressure” gave to accused students reasons “why [universities] might have been motivated to discriminate against males accused of sexual assault.”

Even defenders of the original Dear Colleague letter expressed misgivings about Lhamon’s performance. S. Daniel Carter, for instance, blamed Lhamon for the Title IX excesses of Obama’s second term. “She took what had the potential to be balanced progress,” the longtime campus-safety advocate lamented, “and drove it off a cliff.”

Lhamon has occasionally acknowledged judicial rulings in lawsuits filed by accused students — but only when universities were the prevailing party. Her refusal during her OCR tenure to meet with groups representing such students — despite repeated requests to do so — perhaps made it easier for her to ignore the judicial revolt against her legacy.

While students wrongly accused of sexual assault were Lhamon’s primary victims, her tenure at OCR also coincided with the Obama administration’s attacks on campus free speech. Settlements with the University of Montana and the University of New Mexico imposed broad definitions of “unwelcome” speech that might qualify as sexual harassment under Title IX. Given the disdain for civil liberties Lhamon showed during her initial stint at OCR, it’s not hard to imagine her issuing a future “guidance” document defining Title VI as requiring colleges to crack down on vaguely defined speech in the name of “anti-racism.”

During her four years as education secretary, Betsy DeVos worked to create a Title IX process that would be fair to both accused students and their accusers. After going through the public notice and comment period that Lhamon avoided, in 2020 DeVos finalized Title IX regulations that required schools to provide myriad support services for students making sexual-assault allegations — but to adjudicate those allegations only through a fair process that gave both parties access to evidence and the right to cross-examine witnesses through an advisor.

Lhamon responded with arguably the single most intemperate remark on Title IX from a public official in the last decade. The new regulations, she howled, would take “us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” Lhamon did not explain how the core legal principle of cross-examination might herald a return to “the bad old days.” Or how ensuring that an accused student receives clear notice of the accusations against him — and both students obtain the evidence compiled by the college’s investigation — could create a situation in which it’s “permissible to rape and sexually harass students with impunity.”

His own background on the issue made it highly unlikely that Joe Biden would nominate an OCR head sensitive to campus due process. That said, Biden’s decision to reward someone whose previous tenure generated an intense judicial backlash is appalling. Ironically, the nomination provides an opportunity for senators to demonstrate that colleges should take sexual-assault allegations seriously without denying wrongly accused students a meaningful chance to defend themselves. Senators can make that message clear by declining to confirm Lhamon.

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