Yesterday, Vice President Kamala Harris had to cast the tie-breaking vote in the United States Senate to confirm Catherine Lhamon as Assistant Secretary of the Office of Civil Rights (OCR) in the Department of Education.
Lhamon represents the worst of administrative overreach – that is, lawless agency action under cover of "Dear Colleague" letters rather than Congressional statutes or established rule-making practices. She is most infamous for weaponizing Title IX, the federal law banning sex discrimination in education, not only applying it to campus sexual misconduct allegations but doing so with a mentality of, "Show me the man and I'll show you the crime." Her tenure in this same position under President Obama resulted in thousands of railroaded faculty and students who were presumed guilty of sexual harassment before any fact-finding process even began, often in the spirit of a re-education camp more than accuracy and fairness.
Her nomination to this same role again by the Biden Administration is vindictive and harmful to those targeted last time around.
All that said, 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.
As yesterday’s vote shows, even the most establishment Republicans know that Lhamon is bad news and opposed her; so, her political capital is minimal.
And she is also legally challenged: 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And this is the case even if the new, laudable Title IX Rule, promulgated by former Education Secretary Betsy DeVos, is rescinded by Biden officials. This case law stands as a Due Process Brick Wall, to be cited to preempt and otherwise control feminist ideologues like Lhamon and her henchmen on campus, a.k.a. “Title IX staff.”
So, it is not déjà vu all over again. It's a new ball game.
And this time, we're ready.
Teresa R. Manning is Policy Director at the National Association of Scholars and author of its 2020 Report, Dear Colleague: The Weaponization of Title IX and a friend-of-the-court brief in federal district court in Washington, DC defending the new Title IX Rule.