‘One of the most sweeping bipartisan judicial rejections of an administration’s policy in decades,” commentator David French recently noted, involved the Obama administration using Title IX to undermine due process on American college campuses. The administration’s record, French wrote, “has been rejected by judges across the ideological spectrum and has cost universities millions.”
Given this legacy, George Mason law professor David Bernstein hoped that “legal actors responsible for rather blatant constitutional violations, such as Obama administration OCR [Office of Civil Rights] Chief Catherine Lhamon, will not in the future be rewarded with plum political appointments.” Yet the Biden administration has recently selected Lhamon to return to her old perch atop the OCR, the Education Department office with jurisdiction over Title IX — the federal law that bans gender discrimination in education — and racial-discrimination issues.
Perhaps no public figure in the past decade has done more to decimate the rights of accused students than Lhamon. No wonder that FIRE, the scrupulously non-partisan campus-civil-liberties organization, denounced her nomination and urged senators to reject it unless she committed, under oath, to upholding specific due-process provisions in Title IX tribunals. Given her record, it seems extremely unlikely that she would ever do so.
In 2011, the Obama administration invoked Title IX to address what it considered a surge in campus sexual assaults. The resulting “Dear Colleague” letter mandated a series of procedural changes making guilty findings more likely to result from campus tribunals. The policy’s underlying assumption was that one-sided procedures would change campus culture and lead otherwise-reluctant victims to file reports with their schools. After taking over at OCR in 2013, Lhamon unilaterally produced a second, lengthy guidance document, taking aim at schools’ allowing accused students to conduct cross-examination (most schools already prevented students’ lawyers from doing so) and cautioning universities against prioritizing the due-process rights of the accused.