Great news! Yesterday, Republican members of the Senate Committee on Health, Education, Labor and Pensions (“HELP”) voted against the nomination of Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights (“OCR”) in the Education Department. The result was a tie vote—11 to 11—or a Committee deadlock, which means her name will not proceed to the Senate floor for a full vote, unless Senator Charles Schumer (D-NY) invokes special procedures.
Applause to these Committee members:
Sen. Richard B Burr (R-NC)
Sen. Rand Paul (R-KY)
Sen. Susan Collins (R-ME)
Sen. Bill Cassidy (R-LA)
Sen. Lisa Murkowski (R-AK)
Sen. Mike Braun (R-IN)
Sen. Roger Marshall (R-KS)
Sen. Tim Scott (R-SC)
Sen. Mitt Romney (R-UT)
Sen. Tommy Tuberville (R-AL)
Sen. Jerry Moran (R-KS)
They showed common sense about fundamental fairness—the very thing Catherine Lhamon lacked.
Lhamon became infamous when she held this same position in the Obama administration where she showed callous disregard for the basic due process rights of those accused of campus sexual misconduct. She enforced the now discredited and withdrawn 2011 Dear Colleague Letter (“DCL”) which lowered the standard of proof in school disciplinary hearings (facilitating findings of fault) and which allowed the withholding of evidence and information from those accused. In effect, it was a green light to railroad accused individuals in the name of fighting the now-debunked “campus rape epidemic.” As a result, hundreds of wrongly accused students—mostly male—were suspended or expelled, victimized by the mentality to “believe all survivors,” a mentality which inverts the bedrock common law principle that those accused of wrongdoing are innocent until proven guilty.
Given this record, Catherine Lhamon should have prepared statements for the Committee to reassure every listener that she understood the error of her past ways. For example, she could have said:
"I now not only know, but fully appreciate basic due process rights for those accused of misconduct, and I especially understand the importance of the presumption of innocence. If confirmed, I commit to protecting these basic rights, whatever the accusation. Our legal system is the envy of the world because it is fair. And I pledge my allegiance to its foundational principles, which comprise the basket of rights we call due process."
But she did the opposite!
When asked about the presumption of innocence, she waffled as if she could not bring herself to utter the phrase, eventually offering an equivocal variant that school officials:
“should be open to the possibility that the person is not” [guilty].
She even displayed ignorance about the content of the current rule, claiming that it does not contain a presumption of innocence.
In short, she bombed where she needed to shine.
The nomination itself was an act of belligerence by the Biden people lost on no one. At this moment, the Biden Administration is working to remove the elementary due process protections guaranteed by the new Title IX rule, promulgated under President Trump. The Lhamon nomination added insult to this injury already underway.
But yesterday, Committee Republicans fought back.
Senator Burr's Press Release noted Lhamon’s record not only of due process violations but also of regulatory overreach and inflammatory statements. But one subtext is that longstanding and fundamental rights like the presumption of innocence are not negotiable. This lack of care for the rights of students is Lhamon’s blind spot. She is and always was the wrong person for the job.
Congratulations to Committee Republicans for doing the right thing.
NAS urges all United States Senators to follow suit and reject Catherine Lhamon’s nomination should her name come to the Senate floor.