Biden Nominee for the Office of Civil Rights Could Reverse Devos’ Due Process Reforms

Catherine Lhamon’s nomination to the Office of Civil Rights promises a return to the “bad old days” when Title IX due process violations were rampant.

National Association of Scholars

NEW YORK, NY, May 14, 2021 — The Biden Administration is nominating Catherine Lhamon to serve in her former role of Assistant Secretary at the Office of Civil Rights (“OCR”) in the Department of Education. Lhamon served in this position from 2013 to 2017 and was principally responsible for a policy that made it much easier for colleges and universities to summarily punish students accused of sexual harassment. That policy resulted in over six hundred lawsuits filed by students who complained that their due process rights had been trampled.

“This nomination clearly demonstrates that the Biden Administration supports what Catherine Lhamon did under President Obama,” says Teresa R. Manning, National Association of Scholars (NAS) Policy Director.

Lhamon is most known for her involvement with the infamous 2011 Dear Colleague Letter (“DCL”) which transformed Title IX, the federal ban on sex discrimination in education, from a civil rights law into a quasi-criminal matter where the campus Title IX office became judge, jury, and prosecutor to seek, find, and punish sexual misconduct. “The DCL simply asserted that sexual misconduct constituted discrimination and was therefore a Title IX concern,” explained Manning, author of the NAS Report on Title IX, Dear Colleague: The Weaponization of Title IX.

“But Title IX officials lack basic legal and courtroom experience; they’re just not qualified to handle misconduct that is criminal in nature. The law wasn’t intended for that,” Manning continued.

The Lhamon era gave rise to hundreds of lawsuits against schools by those wrongly accused of Title IX offenses and railroaded by campus proceedings. More than half of those cases have ruled against schools because the institutions violated basic due process rights such as the right to see evidence, the right to the presumption of innocence, and the right to confront one’s accusers and witnesses in a live hearing. Several appellate opinions now constitute a body of law protecting due process on campus.

“Campus miscarriages of justice are Catherine Lhamon’s legacy,” Manning concluded. “The Biden Administration is not only okay with that, but wants more of the same. It’s very concerning. But with this body of case law, you cannot go back.”

Lhamon’s demonstrated record of flouting civil rights law and Congressional intent, legislating by quasi-regulations, and repeated abuses of power during her previous tenure at the Office of Civil Rights should disqualify her from serving in that capacity again.

NAS urges the Senate and its members to oppose Catherine Lhamon's nomination.

NAS is a network of scholars and citizens united by a commitment to academic freedom, disinterested scholarship, and excellence in American higher education. Membership in NAS is open to all who share a commitment to these broad principles. NAS publishes a journal and has state and regional affiliates. Visit NAS at www.nas.org.

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If you would like more information about this issue, please contact Chance Layton at [email protected].


Image: United States Department of Education, Public Domain

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