Despite vigorous opposition from civil liberties groups, Vice President Kamala Harris on October 20 cast a tie-breaking vote in the United States Senate to confirm Catherine Lhamon as Assistant Secretary of Education for Civil Rights.
Lhamon is no stranger to the Office for Civl Rights (“OCR”), having served in the same position from 2013-2016. Indeed, it is precisely because of Lhamon’s controversial record as OCR chief the first time around that supporters of due process opposed her reappointment.
In her first stint as Assistant Secretary, Lhamon used her position to bully colleges and universities into inappropriately policing the speech and sex lives of students in order to prove the institution’s commitment to preventing sexual assault.
With threats that the department would revoke federal funding, Lhamon pressured schools to rack up findings of “responsibility” (aka guilt) by broadly expanding the definition of “sexual assault” and by establishing massive Title IX bureaucracies to adjudicate such claims. These kangaroo courts eliminated the presumption of innocence and employed a lower burden of proof than that used in other college disciplinary settings. Moreover, many accused students were not allowed to see the specific charges or evidence against them or were prevented from presenting exculpatory evidence in their own defense. As a result, scores of innocent students lost access to education were branded as sexual predators.
So overzealous was Catherine Lhamon that, in 2016, a bipartisan group of 21 law professors issued a statement condemning the Department of Education for undermining the neutrality of campus disciplinary systems. Not surprisingly, perhaps, Lhamon’s tenure at OCR also resulted in a flood of litigation in which judges (from both political parties) issued favorable rulings for students punished by campus kangaroo courts.
In 2020, after years of study and public comment, education officials tried to put a stop to the madness by promulgating new Title IX regulations that codify the obligation of schools to address sexual harassment and assault and require schools to investigate such claims fairly.
At the time, Lhamon publicly indicated her opposition to the regulations, stating on Twitter that they “tak[e] us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” When given an opportunity at her Senate confirmation hearing to walk back this hyperbole, Lhamon doubled down on her view that the regulations enable rape.
Prior to Lhamon’s recent confirmation, the current administration had already begun the process of dismantling the department’s 2020 due process rules.
Now that the Senate has confirmed Lhamon to head OCR once again, is there any doubt that colleges will double down on racking up sexual misconduct findings using investigatory tribunals with all of the procedural safeguards of the Salem Witch Trials? ”