The Return of Catherine Lhamon Is Another Biden Betrayal

O n Wednesday afternoon, with Vice President Kamala Harris casting the tie-breaking vote, the Senate confirmed Catherine Lhamon to return as head of the Department of Education’s Office for Civil Rights (OCR). Wrongly accused students have the most to lose from Lhamon’s being back in power, but her nomination also offers insights into shortcomings of the man who nominated her, Joe Biden.

Perhaps no figure in the past decade has been more associated with weakening the rights of accused students than Lhamon. Between 2013 and 2016, during her first stint at OCR, the Obama administration’s admirable goal of using Title IX to encourage universities to crack down on campus sexual assault devolved into pressure for one-sided procedures. Lhamon herself seemed to revel in the power. “Do not think it’s an empty threat,” she told one conference of campus administrators, addressing concerns that she would cut off federal dollars to any college or university that didn’t implement her preferred vision of Title IX adjudication procedures.

Universities were hardly blameless in the moral panic that ensued, but even a prudent campus administration had reason to fear Lhamon. As Jackie Gharapour Wernz, who worked as an OCR lawyer during the Lhamon years, recalled last year, “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.”

Hundreds of resulting lawsuits from accused students produced a wave of decisions challenging core assumptions of the administration’s policies. An opinion from the Sixth Circuit, based in Ohio, best framed the issue: “Any number of federal constitutional and statutory provisions,” the court maintained, “reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group.” These sentiments applied to campus sexual-assault tribunals, since Title IX “bars universities that receive federal funds from discriminating against students based on their sex.”

Lhamon, however, seemed not to care how her policies had harmed innocent students. Reflecting on her 2013–2016 tenure, she denied any “need to course-correct,” preposterously claiming that “we had been aggressive in protecting accused students’ rights already.” Those who maintained otherwise, she continued, perpetuated a “myth that was deeply unfortunate and dangerous to equity.”

The legal and policy backlash to Lhamon’s legacy, ironically, set the stage for last year’s Title IX regulations. Championed by former education secretary Betsy DeVos, the regulations interpreted Title IX as requiring colleges to treat both parties in a sexual-assault adjudication fairly. Both the accused and accusing students had to receive access to evidence compiled in the investigation, and schools could reach a final decision only after a hearing featuring cross-examination by representatives of each student. During the 2020 campaign, Biden nonetheless committed to replacing the regulations.

In an era of Black Lives Matter protests and progressive prosecutors, Democratic legislators have become more sensitive to the need for fairer treatment of accused parties. Yet they have carved out a Title IX exception to their embrace of due process. Senate Democrats either remained silent or denounced DeVos’s proposals in vitriolic terms. Kirsten Gillibrand, for instance, claimed that the regulations favored “predators over survivors”; her colleague Patty Murray denounced DeVos’s efforts as “shameful and appalling.” Ron Wyden asserted that the regulations would be “stifling” rather than “empowering survivors.”

This rhetoric, though unfortunate, might have been excused as reflexive hostility to the Trump administration — which, of course, outside of Title IX had a poor record on matters relating to procedural fairness. Yet the embrace of Lhamon — a defection by just one Democratic senator would have torpedoed her nomination — suggests that backing one-sided Title IX procedures has become a core element of how Senate Democrats approach higher-education matters.

Lhamon has given no reason to believe that her second stint at OCR will differ from her first. She responded to the new regulations by accusing DeVos of “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” Given a chance to explain this remark at her confirmation hearing, Lhamon instead reiterated her inflammatory claim — as if procedural fairness ensures that guilty parties go unpunished. In an Orwellian reaction, the Leadership Conference on Civil and Human Rights responded to this outburst by claiming a Lhamon confirmation would “support students’ civil rights.”

As lawyer and blogger Scott Greenfield observed, Senate Democrats “have intentionally chosen to deny equal protection and be the party of overt sex discrimination.” And given the party-line nature of the tally, each Senate Democrat can be said to have cast the decisive vote. But few people care about procedural fairness in campus adjudications, and it seems highly unlikely that any of Lhamon’s legislative supporters will pay a political price for their vote.

That doesn’t mean the outcome is devoid of broader political meaning. Beyond its deleterious effects on campus due process, the Lhamon confirmation helps illuminate Biden’s falling approval ratings, particularly a sense that the president has failed to redeem the promises of his 2020 campaign.

As a candidate, Biden championed unity and working with congressional Republicans when he could. Yet for this critical higher-ed post, the president nominated an extraordinarily divisive figure — and then, when even the most moderate Senate Republicans resisted, pushed the nomination through on a party-line vote.

And as a candidate, Biden appropriately castigated his predecessor for defying court rulings he didn’t like. Yet as president, Biden now stands behind a subordinate whose previous pressure on universities has been cited by appeals courts from New York to Chicago to California as possibly contributing to gender bias against accused male students.

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.