On Tuesday, the Senate Health, Education, Labor and Pensions Committee questioned three nominees for the Biden Education Department (ED). The most controversial of these was Catherine Lhamon, even though she's up for a position she already held in the Obama years—or, perhaps more accurately, because she held that position, to the detriment of anyone on campus at that time who was accused of sexual misconduct.
Lhamon's been tapped to serve as ED’s assistant secretary in the Office for Civil Rights to oversee federal civil rights laws. The Office enforces Title IX, the federal statute that bans sex discrimination at schools receiving federal funds, but which is now a social justice weapon used mostly against male students and faculty who are accused of sexual harassment.
Lhamon had the job from 2013 to 2016 and implemented the now-infamous 2011 Dear Colleague Letter (“DCL”), which pressured schools to seek, find, and punish sex offenders at the risk of losing federal funding. The letter eroded traditional due process rights such as the presumption of innocence, the right to see evidence, and the right to question witnesses. It also lowered the standard of proof so that accused parties could more easily be found guilty (“responsible”).
The result was a rash of cases where students and faculty were victimized in what are now called campus kangaroo courts. Many were summarily escorted off campus, suspended, or expelled on the flimsiest of evidence in show trials designed to satisfy ideological feminists, not to find the truth. Hundreds of lawsuits against colleges and universities have since been filed by those wrongly accused, who’ve argued— successfully—that their basic due process rights were violated.
Lhamon’s nomination to serve again, in this same position, itself opens old wounds for those injured parties.
But Tuesday’s hearing made matters worse.
In the years following the Lhamon regime, Trump Education Secretary Betsy DeVos played clean-up by withdrawing the 2011 DCL and beginning the painstaking rule-making process to issue a new, formal Title IX regulation to govern school grievance procedures. That regulation took effect last August, after three years of public input (2017-2020). It balances the rights of the Title IX complainant and the accused party by mandating supportive measures for the former, but also basic due process for the latter.
Of these protections, probably the most discussed and arguably the most important was the presumption of innocence for the accused. With origins in the Magna Carta (1215), this presumption ensures that legal or disciplinary proceedings do not devolve into inquisitorial witch trials where an accusation means a conviction. It is probably the most basic component of the basket of rights called due process. And the DeVos regulation unequivocally requires it of schools, in section 106.45 (b)(1)(iv), which reads:
Basic requirements for grievance process. A recipient’s grievance process must … include a presumption that the respondent is not responsible for the alleged conduct. …
Notwithstanding this unambiguous and much-deliberated provision, Catherine Lhamon maintained at her hearing on Tuesday that the new regulation lacked such a provision, stating:
“There isn’t a presumption of innocence in the existing Title IX regulation.”
When pressed by North Carolina Congressman Richard Burr on this point, Lhamon offered the following:
“It's not there.”
“I can’t keep something that’s not there.”
“I will enforce the standard that exists.”
She then went on to share her own view of what school officials should do, as distinct from what she believes the law requires:
“My view is that civil rights investigators, investigators at schools, need to start from the presumption that the facts are what they are … they shouldn’t be assuming somebody is guilty because a person has been accused … They should be open to the possibility that the person is not.”
It seemed Lhamon could not utter the phrase “presumption of innocence” and instead offered a new variant: “open to the possibility” of innocence.
Lhamon’s ignorance of the current rule’s provision is inexcusable, given the centrality of this issue in the Office she’s been asked to lead. One can hope that she clarifies and corrects herself from this embarrassing mistake soon, but the damage is done. How could such a nominee not know of the provision, when so much attention went to this issue? Not to mention its importance to those railroaded by its absence the last time she was in charge.
Lhamon, of all people, should not be uninformed or equivocal about this. If she ends up saying that the exact phrase “presumption of innocence” does not appear in the rule’s text, she’s playing games where she should not. In criminal court, the defendant pleads “not guilty” rather than “innocent,” but that doesn’t change the due process term, “the presumption of innocence.” An attorney at Lhamon’s level knows this.
Second, and perhaps more important: Catherine Lhamon’s priorities are clearly elsewhere. And that's the problem.
Due process is not some ephemeral, partisan, pet political cause. It's the bedrock of a sound legal and social order.
If Catherine Lhamon cannot understand and appreciate that— and it’s clear that she cannot—then she should not be a high-level government official in charge of civil rights. Her checkered record was concerning enough; her committee testimony made matters worse.
Catherine Lhamon has a pleasant demeanor and has all the forces of feminism, liberalism, and the academic and legal establishment behind her. She could probably get any prestigious job under the sun. But on Tuesday, she disqualified herself from this one by undermining confidence that she can be fair.
Teresa Manning is policy director at the National Association of Scholars.