- The Washington Times
Wednesday, October 20, 2021

Vice President Kamala Harris cast the tie-breaking vote for Catherine Lhamon in the Senate Wednesday, putting the Obama administration veteran back in charge of the Office of Civil Rights in the Department of Education.

Ms. Lhamon held the same post from 2013 through 2016 when schools were roiled by new Title IX enforcement in sexual misconduct allegations.

The evenly divided Senate voted 50-50 on partisan lines, forcing Ms. Harris to push Ms. Lhamon’s nomination across the wire.

Liberals hailed Ms. Lhamon’s return to an OCR that enjoyed robust growth in terms of reach and importance under her previous tenure.

“Catherine Lhamon is a superb choice to lead the Department of Education’s Office of Civil Rights,” said Wade Henderson, interim president and CEO of the Leadership Conference on Civil and Human Rights, a coalition of 77 leftist groups.

Mr. Henderson urged Ms. Lhamon to take an activist approach to the job.

“Now it is time to get to work!” he said. “We call on Assistant Secretary Lhamon to ensure justice and equal opportunity in our schools through robust enforcement, transparent data, and clarifying policies.”

When Ms. Lhamon last ran the OCR she pushed colleges to adopt a less stringent scale of guilt in Title IX disputes, and multiple lawsuits stemmed from subsequent proceedings that critics said heavily tilted the scales of justice against accused persons.

Instead of requiring “clear and convincing evidence” of the accused’s guilt, Ms. Lhamon issued guidance that led most schools to lower the bar to “more likely than not” in such proceedings.

Under Betsy DeVos, education secretary in the Trump administration, new regulations were promulgated to restore rights to accused persons in Title IX cases, regulations that overrode the guidance letters the OCR issued under Ms. Lhamon.

In response to the new regulations, Ms. Lhamon tweeted they would allow “students to rape and sexually harass with impunity.” 

Pressed about those comments during her confirmation hearing, and asked if she would support new regulations that allow accused students to see the evidence presented against them, Ms. Lhamon said she would enforce current regulations.

But she made clear that decisions on whether to try to undo the new regulations would be made by the Biden administration, not her alone.

Some education watchdog groups warned that Ms. Lhamon’s return is an unwelcome development in terms of respecting the rights of people accused of harassment or misconduct.

“If the past is any indicator, OCR will soon return to its one-sided approach that injected unfairness into the process and destroyed the lives of many students,” said Joe Cohn, the legislative and policy director of the Foundation for Individual Rights in Education.

FIRE said it would keep an open mind, however, and pledged to work with her “in good faith.”

“Lhamon also has the opportunity to prove us wrong,” Mr. Cohn said. “She can pursue policy that respects the rights of accusers and accused alike. And she can commit to keeping the key procedural protections in the current regulations. Only time will tell if we are pleasantly surprised. But if past is prologue, we shouldn’t hold our breath.”

Ms. Lhamon’s previous “Dear Colleague” guidance letters touched upon multiple subjects in addition to Title IX. She was widely credited by liberal groups as a champion of transgender rights, for example.

Conservative groups blasted Ms. Lhamon’s confirmation, labeling her a “far-left activist.”

“During her time in this position under the Obama administration, Ms. Lhamon led the charge on policies that allowed males to enter girls’ private spaces, violated the free speech and due process rights of students, and encouraged harassment of religious schools,” said Kristen Waggoner of the Alliance Defending Freedom.

“ADF will be watching closely to see if Ms. Lhamon decides to pick up where she left off,” Ms. Waggoner said. 

Ms. Lhamon may be handicapped in her effort to return the OCR to the Obama days by a shift in the landscape surrounding Title IX issues, according to an analysis Mr. Johnson did last month.  

In her first stint, “the mainstream media framed Title IX issues in terms sympathetic to her crusade, suggesting that the nation faced an epidemic of campus sexual assault that otherwise left-leaning universities refused to address,” he said. “Lhamon was portrayed as a courageous fighter against university bureaucracies indifferent to the suffering of sexual assault victims in their midst.”

Since then, however, universities have lost more than 200 cases surrounding the Title IX adjudication system Ms. Lhamon helped engineer.

“These have included favorable offerings for accused students in the Third, Sixth (three decisions), Seventh, Eighth (two decisions), Ninth, and Tenth Circuits, covering a majority of states in the country,” Mr. Johnson determined. “In many of these rulings, courts have cited the actions of OCR during Lhamon’s tenure as possibly contributing to gender-biased campus environments for accused students.”

• James Varney can be reached at jvarney@washingtontimes.com.

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