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President Joe Biden this month nominated Catherine Lhamon to the post she held in the Obama administration, where as assistant secretary for civil rights within the Department of Education she was in charge of enforcing Title IX protections against sex discrimination.
During her tenure at the Office for Civil Rights between 2013 and 2017, Lhamon eroded due process rights for individuals accused of sexual misconduct on university and college campuses, pressing schools to implement the preponderance-of-the-evidence standard and keep legal representation out of the process. Lhamon also pushed universities to embrace an adjudication model for sexual misconduct cases that relies on a single campus administrator.
After four years of Education Secretary Betsy DeVos reversing the damage done by Lhamon and reimplementing due process rights at American schools, Lhamon is positioned to reclaim her old job title in the new administration.
The nomination, however, has drawn criticism from the Foundation for Individual Rights in Education, which released a statement the day of her announcement urging lawmakers to reject her confirmation.
“Under Lhamon’s leadership, the Office for Civil Rights enforced guidance that gutted due process protections and violated the First Amendment,” the group wrote. “Lhamon used that guidance to pressure institutions to restrict constitutionally protected speech and disregard basic procedural protections in campus disciplinary hearings.”
“By putting forward Lhamon for this crucial role, President Biden has signaled that he would rather colleges go back to old, failed policies — policies that have earned rebukes from dozens and dozens of courts to date — than pursue Title IX policies that take the rights of all students into account,” the group continued, emphasis theirs. “The United States Senate should reject Lhamon’s nomination unless she commits under oath to maintaining key procedural protections in campus Title IX proceedings.”
A reversal back to Obama-era policies, however, likely will not be as easy as flipping a switch.
“Undoing DeVos’ Title IX reforms will not be easy,” explained Reason Magazine’s Robby Soave. “The former secretary went through the rule-making and notice-and-comment processes, which give the reforms more staying power.”
“But then again,” Soave added, “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.”
Lhamon currently serves on Biden’s Domestic Policy Council for Racial Justice and Equity, where the president has tasked the council with rooting out supposed systemic racism across government agencies as a focal point of its mission.