From 2013 to 2017, the task of enforcing Title IX—the federal statute that prohibits sex and gender-based discrimination in public education—fell to Catherine Lhamon, who served as assistant secretary for civil rights within President Barack Obama’s Education Department.
Continuing the work of her predecessors, Lhamon’s Office for Civil Rights (OCR) compelled colleges and universities to adopt sexual misconduct procedures that violated the due process and free speech rights of accused students and professors. Under her authority, the federal government pressured schools to adopt the preponderance-of-the-evidence standard, discourage attorneys from becoming involved, and move toward an adjudication model that relied upon the testimony of a single campus bureaucrat vested with investigative powers. When Betsy DeVos became secretary of education under President Donald Trump, she swiftly moved to reverse the agency’s Title IX guidance and restore basic fairness to these proceedings.
But now that Joe Biden is in the White House, he’s giving Lhamon her old job back: Last week, the president appointed her to be assistant secretary for civil rights once again.
“Lhamon’s nomination is the latest example of the White House steering civil rights policy back toward the Obama administration’s approach and is likely to please advocacy groups for victims of sexual assault and civil rights organizations,” noted NBC News.
Assuming the Senate confirms her, Lhamon will be well-positioned to erode DeVos’ reforms. As such, the Foundation for Individual Rights in Education (FIRE) has called on the Senate to vote her down.
“The United States Senate should reject Lhamon’s nomination unless she commits under oath to maintaining key procedural protections in campus Title IX proceedings,” said FIRE in a press release. “Among these are the rights to a live hearing to contest charges, to an express presumption of innocence, to meaningful cross-examination, and to access to all of the evidence in an institution’s possession, including exculpatory evidence. Without that commitment, it is all but certain that the Department of Education will return to its discredited practice of trampling student rights.”
Undoing DeVos’ Title IX reforms will not be easy; the former secretary went through the rule-making and notice-and-comment processes, which give the reforms more staying power. But then again, the Obama-era Title IX push was accomplished via unilateral declaration—i.e., a “dear colleague” letter to universities instructing them to adopt certain procedures. It’s not out of the realm of possibility that this strategy would be deployed once again.
(Disclosure: I currently serve on the D.C. advisory committee to the U.S. Civil Rights Commission, which was chaired by Lhamon from 2017 to 2021. During that time period, I interacted with her on occasion.)
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