Catherine Lhamon’s first stint as assistant secretary in the Department of Education’s Office for Civil Rights (OCR) during the Obama years was an unmitigated disaster for due process on American college campuses. President Joe Biden has rewarded Lhamon for her efforts by nominating her for the same position. Her second stint promises to be no less of a catastrophe.
The last time Lhamon was charged with running the OCR, she oversaw the 2011 “Dear Colleague” letter that strong-armed colleges into adjudicating sexual abuse and assault cases using a “preponderance of evidence” standard rather than the age-old “clear and convincing evidence” standard.
In practice, the policy meant those accused of sexual misconduct were often stripped of basic protections — denied the ability to question accusers, to review allegations and evidence, to present exculpatory evidence, and to call their own witnesses. Additionally, the Obama guidelines allowed accusers to appeal “not guilty” verdicts, but not the accused. It permitted penalties and expulsions to be handed out before investigations were conducted. Even when inquiries did occur, they were often run by a single untrained employee who acted as both judge and jury.
Lhamon’s “guidance” was imposed on schools by fiat, even though the new rules stretched the law beyond recognition. On numerous occasions, Lhamon threatened to cut the federal funding to any university that failed to implement her tribunals. “Do not think it’s an empty threat,” she warned in 2014. “It’s one I’ve made four times in the ten months I’ve been in office. So it’s one that’s very much in use.”
Schools did what they were told. Denied the right to impartial investigations and disciplinary action, the lives of hundreds of students were likely upended by false accusations. Schools suffered, as well. A United Educators (UE) analysis found that more than a fourth of Title IX claims in 2015 alone were challenged by students who either filed lawsuits or lodged complaints through the OCR. According to UE, payouts from procedural challenges related to Title IX cases exceeded those of wrongful death and wrongful termination claims. Dozens of schools, including Northwestern University, Dartmouth College, and Yale, were forced to settle with students, while schools like USC, Pennsylvania State University, Ohio University, Hofstra, Boston College, Claremont McKenna, and Purdue lost decisions in courts.
After Education Secretary Betsy DeVos overturned Obama-era guidelines on campus sexual-assault cases, Lhamon, by then at the U.S. Commission on Civil Rights, claimed that the Trump administration was taking “us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” At a recent Senate education committee confirmation hearing, Louisiana senator Bill Cassidy asked the nominee if she still stood by her assertion. She did. Lhamon’s remark isn’t merely reprehensible hyperbole, it is disqualifying.
There are, of course, good-faith disagreements over DeVos’s Title IX guidance. But to contend that implementing fundamental protections every American citizen enjoys in the real world gives students license to rape with impunity illustrates that Lhamon is unfit for the job of protecting the civil rights of all students. Whether on campuses or anywhere else, due process — including the presumption of innocence — protects all parties, ensuring the credibility of investigations. The decisions of Lhamon’s banana-republic courts could not hold up to legal scrutiny. It’s probable, as well, that guilty parties were able to claim they were victims of flawed hearings or unfair sanctions.
Rest assured that Lhamon will do what she can to impel schools to adopt other progressive doctrinal policies. The Biden administration, for instance, now interprets Title IX’s prohibition on sex discrimination “to encompass discrimination based on sexual orientation and gender identity.” What will stop Lhamon from forcing schools to implement far-left transgender policies in collegiate sports and dorms? What limiting principle would stop her from compelling schools to adopt neoracist critical race theory? None.
Judging from her history, her recent remarks, her disdain for fairness and limits to executive power, Lhamon will not only roll back due-process protections, she will open new fronts in the culture war from her perch at OCR.