- The Washington Times
Wednesday, September 8, 2021

A lawsuit has been filed against the U.S. Commission on Civil Rights for allegedly violating public records laws to protect former Chair Catherine Lhamon, who is President Biden‘s pick for a top civil rights post in his administration.

The Baden Family Foundation, a conservative-leaning nonprofit focused on civil rights, filed the lawsuit after the commission in August rejected a Freedom of Information Act request filed in February for the outgoing emails of Ms. Lhamon and another USCCR official from the last six months of 2020.

The lawsuit comes after the USCCR ignored several statutory deadlines for providing the records, according to the suit.

The commission’s refusal to turn over public records reflects what has increasingly become the default position of many government officials and agencies, according to attorney Hans Bader and other watchdog groups that must routinely turn to the courts to enforce compliance.

“They try to redact everything and delay the administrative process, then you have to jump through the hoops of administrative appeals and then you have to sue,” Mr. Bader said. “The government’s incentive is to stretch it out as much as possible and assert privileges.”

One appointed USCCR commissioner, who spoke to The Washington Times on the condition of anonymity, said the staff has not informed the board about the decision to reject the public records request or the lawsuit.

“You’d think they would inform the commissioners about a lawsuit and we wouldn’t have to read about it in The Washington Times,” the commissioner said. “This pushes the outer limits of what is typical but the staff thinks they are the commissioners and this is just another example of that.”

Ms. Lahmon’s nomination to head the Department of Education’s Office of Civil Rights, a position she also held in the Obama administration, has stalled in the Senate over Republican concerns about the actions she took the last time she held the job. At that time, her “informal” guidance caused most colleges to strip protections from accused students.

“We believe her talking with outside lobbying groups and other individuals outside the federal government would be of enormous public interest in showing how policy is being crafted,” said Mr. Bader, who represents the Baden Foundation.

The USCCR declined to comment on the lawsuit.

The foundation requested outgoing emails from Ms. Lhamon and Katherine Culliton-Gonzalez, a former commission executive the Biden administration has since appointed to a civil rights position in the Department of Homeland Security. The foundation tailored its request to the last six months of 2020 at the commission’s request, and the FOIA did not seek internal emails.

“All kinds of conflicts of interest may come up in the outgoing emails to people outside the commission, which would not be covered by deliberative FOIA protections,” Mr. Bader said. “Obviously, that would be of interest to the public.”

While in the Obama administration’s education department, Ms. Lhamon sent a “Dear Colleague” letter in 2011 to all colleges and universities that receive federal funds. The letter encouraged schools to adopt far less stringent standards of guilt in sexual misconduct cases and carried the implication federal funding could be threatened if schools did not comply.

Consequently, many public and private universities went with a “more likely than not” standard as opposed to “clear and convincing” evidence, a formulation that stacks the deck and led to widespread administrative chicanery against accused students, according to reports by the Foundation for Individual Rights in Education and other watchdog groups.

Ms. Lhamon’s nomination has been interpreted as a signal the Biden administration will seek to strip the new regulations former President Trump’s Education Department passed through legal channels last year. Those regulations were designed to restore constitutional protections to accused students in campus proceedings, according to supporters.

Battles over Title IX have recently broken out on other fronts where Ms. Lhamon would be expected to define policy if she were confirmed. Last week, 20 states led by Tennessee sued the Department of Education over its June expansion of groups that could be discriminated against under Title IX to include “sexual orientation” and “gender identity.”

The National Association of Scholars, a conservative higher education group, supported the lawsuit, calling the Biden administration’s new definitions “a wholesale transformation of the law pulled out of thin air.”

On the FOIA lawsuit, federal agencies are required to respond within 20 working days of receiving a records request, a clock that began in the foundation’s request on Feb. 1, according to the lawsuit.

The USCCR did not respond at all until March 26, well past the statutory deadline, when it asked the foundation to tailor its request. After the foundation did so, the commission then first rejected the request on April 26, claiming “the request fails to describe the information sought.”

Mr. Bader said that reasoning is specious on its face, given the increasingly specific descriptions the foundation provided to its FOIA requests.

Taking a FOIA request all the way to court is a measure not available to much of the public, which also explains why increasingly government actors do their utmost to shield records from public oversight, said Tom Fitton, the executive director of Judicial Watch.

“Their default position is to ignore a FOIA request,” Mr. Fitton said, noting Judicial Watch has been forced to file “literally hundreds of lawsuits” to enforce compliance with federal public records laws.

Agencies don’t take transparency seriously,” he said. “The vesting state of the bureaucracy is secrecy and you have to sue to get the time of day.”

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

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