Taking A Trip in the Title IX Time Machine

David Acevedo

CounterCurrent: Week of 10/24

Let’s play a game called Guess That Year! Here are some clues: Joe Biden is in the White House. America is still reeling from a devastating economic decline, and we’re gearing up for another round of midterm elections. The Red Sox are up in the American League Championship Series, and the Dodgers are battling it out in the NLCS. Lastly, Catherine Lhamon has just been confirmed as the Education Department’s Assistant Secretary of the Office for Civil Rights.

2013, you say? Is that your final answer? Trick question—it’s actually 2021, as of last week.

That’s right. We’ve taken a trip in the Title IX Time Machine, and the Senate has again confirmed Lhamon to serve in her old role in the Office of Civil Rights (OCR), a position which she first held from 2013-2016. The New York Times reported that she “squeaked” through the Senate, a most fitting term given that the vote was a 50-50 party-line tie, broken by Vice President Harris. This was after a deadlock 11-11 Committee vote in August, which would have prevented a full Senate vote unless Majority Leader Schumer invoked special procedures (hint: he did).

What makes the Lhamon nomination so controversial that it would warrant two consecutive tie votes in the Senate? Let’s just say her first rodeo was … questionable, to put it lightly. As National Association of Scholars Policy Director Teresa Manning put it a couple of months ago,

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 She enforced the now discredited and withdrawn 2011 Dear Colleague Letter (“DCL”) which lowered the standard of proof in school disciplinary hearings (facilitating findings of fault) and which allowed the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.” [emphasis mine]

So her resume is a little spotty. But people change, right? Maybe she’s turned over a new leaf in the last five years. Not quite—in fact, she may have gotten even worse. Here’s Manning again, after Lhamon’s Committee hearing in July:

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?

In other words, Lhamon completely face-planted in a nationally publicized job interview. This combined with her previous tenure in the role should have disqualified her from any further public service, and yet 50 U.S. senators (not to mention our Vice President) still had the gall to vote “Yea.” It’s clear that Lhamon’s confirmation is politics-over-common-sense par excellence. Right, left, center, or none of the above, there is absolutely no reason why she should serve in this role again. And yet, as Manning writes, “this time, we’re ready.”

… at least we know what we are getting in Catherine Lhamon and, more important, we know to stand watch, to be prepared, and to fight back at her every attempt to violate the civil rights of students. … Unlike last time, today hundreds of court opinions affirming basic due process rights—such as cross examination of complainants and disclosure of all evidence—are now established case law for most of the country. And this is the case even if the new, laudable Title IX Rule, promulgated by former Education Secretary Betsy DeVos, is rescinded by Biden officials.

It’s true—the Title IX landscape really is different this time around. But we can’t let our guard down. Fool us once, shame on you. Fool us twice …

CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications & Research Associate David Acevedo. To subscribe, update your email preferences here.

Image: Icons8 Team, Public Domain

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