President Joe Biden has nominated some terribly polarizing candidates for crucial posts in his administration. Time and again, President Biden and his Democrat allies in the Senate have had to ram through – largely on part-line votes – nominees accused by GOP lawmakers of being radically partisan including the head of policy at DoD, Colin Kahl, and the third-highest official at the Justice Department, Vanita Gupta.
True-to-form, President Biden has nominated a disastrous nominee to lead civil rights at the Department of Education in Catherine Lhamon. As with his calamitous nomination of Neera Tanden to head OM – a choice that ended in her embarrassing withdrawal from consideration – a current party-line deadlock in the Senate subcommittee considering Lhamon’s nomination should encourage President Biden to go back to the drawing board on his pick to head civil rights at the Department of Education.
Lhamon previously held the position of Assistant Secretary for Civil Rights at the Department of Education for which she is now, again, seeking Senate approval. Indeed, during her hearing in the Senate HELP Committee last month, Lhamon claimed repeatedly her previous experience from 2013-2016 in that role qualified her to assume the role again. However, it is for this very reason – as well as her cagey testimony on her stance on basic due process protections – that it is clear Lhamon will be a catastrophe if confirmed.
Lhamon played a key role in developing the President Obama-era regime prescribed by the infamous 2011 “Dear Colleague” letter that railroaded thousands of students accused of sex misconduct in gender-biased kangaroo courts. That regime failed to require campuses ensure basic due process protections such as access to all evidence, ability to cross-examine and therefore judge the credibility of witnesses, or even to ensure that accused students are afforded the bedrock American presumption of innocence until proven guilty.
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Fortunately, the President Trump administration officially withdrew that letter in 2017 and, in 2020, after a formal notice-and-comment process, issued final regulations governing campus sexual assault proceedings pursuant to Title IX. These regulations took effect on August 14, 2020 and remain legally binding.
The Trump-era regulations better maintain the protections for survivors of sexual misconduct while simultaneously providing important due process protections for students facing accusations of sexual misconduct. The courts have agreed.
A recent analysis from the SAVE organization shows over 200 judicial decisions have affirmed one or more of the due process provisions of the 2020 regulations. So, Catherine Lhamon’s radical suggestion at the time – and which she stood by in her Senate hearing – that these regulations will “tak[e] us back to the bad old days…when it was permissible to rape and sexually harass students with impunity” just doesn’t hold water. To make matters worse, notwithstanding this position, Lhamon bizarrely maintained during her hearing that if confirmed, she would enforce those same regulations.
To further disqualify herself, Lhamon claimed at her hearing campus Title IX bureaucrats should be “open to the possibility” that accused students are innocent. A suggestion that confirms her demonstrated contempt for a basic presumption of innocence.
If confirmed, Catherine Lhamon is highly likely to exert much effort to undue the important Trump-era measures. Still more alarming is Lhamon’s failure to affirm that she will not abuse the regulatory process by once again using mere letters and guidance documents that fail to go through the informed, transparent, and thorough process of formal rulemaking.
Students and the institutions that educate them deserve protection, fairness, and stability on their campuses. A Lhamon return to the Department of Education will undermine all three of these objectives and should seriously concern parents with college-aged children. Campus sex assault grievance proceedings that do not respect basic due process protections harms everyone involved in myriad ways, not least of which calling into question the accuracy and reliability of the result.
If the Senate moves this nominee forward, it will reflect a total disregard for bipartisanship and constitutionally grounded due process protections. However, there is still a chance that Senate Majority Leader Chuck Schumer will attempt to force a Lhamon confirmation on a totally partisan Senate floor vote. In that scenario, no matter whether the nomination dies on the Senate floor or Lhamon is confirmed, President Biden and the Democrats would be making another huge political mistake they cannot afford.
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