Cby atherine lhamon The first stint as assistant secretary in the Department of Education’s Office for Civil Rights (OCR) during the Obama years was an absolute disaster for due process on American college campuses. President Joe Biden has rewarded Lhamon for her efforts by nominating her for the same position. His second term promises to be no less catastrophic.
The last time Lhamon was accused of running the OCR, she oversaw the 2011 “Dear Colleagues” letter that required universities to try sexual assault and abuse cases using a “preponderance of evidence” standard rather than the old “clear and convincing”. evidence ”standard.
In practice, the policy meant that those accused of sexual misconduct were often stripped of basic protections: They were denied the ability to question accusers, review accusations and evidence, present exculpatory evidence, and call their own witnesses. Additionally, Obama’s guidelines allowed prosecutors to appeal “not guilty” verdicts, but not defendants. It allowed sanctions and expulsions to be issued before investigations were carried out. Even when investigations did occur, they were often led by a single, untrained employee who acted as judge and jury.
Lhamon’s “guidance” was imposed on schools by decree, even though the new rules extended the law beyond recognition. On numerous occasions, Lhamon threatened to cut federal funding to any university that did not implement its courts. “Don’t think it’s an empty threat,” he warned in 2014. “It’s one I did four times in the ten months I’ve been in office. So it’s one that is very much in use. “
The schools did what they were told. Denied the right to impartial investigations and disciplinary actions, the lives of hundreds of students were likely turned upside down by false accusations. The schools also suffered. An analysis by United Educators (UE) found that more than a quarter of Title IX claims in 2015 alone were challenged by students who filed lawsuits or complaints through OCR. According to UE, payments for procedural challenges related to Title IX cases exceeded those for 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 court.
After Education Secretary Betsy DeVos struck down Obama-era guidelines on campus sexual assault cases, Lhamon, by then on the U.S. Civil Rights Commission, claimed that the Trump administration he was returning us to the bad times, before I was born, when it was allowed 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 claim. She did. Lhamon’s comment is not mere reprehensible hyperbole, it is disqualifying.
Of course, there are good faith disagreements about the guidance of DeVos Title IX. But claiming that implementing fundamental protections enjoyed by all American citizens in the real world grants students a license rape with impunity illustrates that Lhamon is unfit for the job of protecting the civil rights of all students. Whether on campus or elsewhere, due process, including the presumption of innocence, protects all parties and ensures the credibility of investigations. The decisions of the Lhamon banana republic courts could not withstand legal scrutiny. It is also likely that the culprits were able to claim that they were victims of flawed hearings or unfair penalties.
Rest assured, Lhamon will do what he can to push schools to adopt other progressive doctrinal policies. The Biden administration, for example, 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 college sports and dorms? What limiting principle would prevent you from forcing schools to adopt critical neo-racist race theory? None.
Judging by his story, his recent comments, his disdain for justice and limits to the executive branch, Lhamon will not only roll back due process protections, but will open new fronts in the culture war from his position at OCR.