The Department of Education’s former civil rights head Catherine Lhamon has not changed much over the past four years.
On Tuesday, the Senate Health, Education, Labor, and Pensions Committee held a hearing on President Joe Biden’s nominations to the Department of Education. Though three candidates came before the HELP Committee, one individual was front and center during the nearly two-hour-long meeting: Lhamon, Biden’s nominee for assistant secretary for civil rights.
Upon first glance, it seemed that Lhamon had made repeated pledges to uphold protections for students. But this isn’t quite true.
In response to North Carolina Sen. Richard Burr’s first set of questions, Lhamon affirmed that she believed in the concept of “innocent until proven guilty.” She also told the senator that due process applied in public institutions, while fair process applied in private universities.
Lhamon also repeatedly told Burr that she would enforce the current Title IX regulations implemented under former Education Secretary Betsy DeVos. The nominee acknowledged that the Title IX rules in place allow students to see the evidence against them, entitle complainants and accused students to a hearing, and give parties the chance to cross-examine each other indirectly.
When asked whether she plans to change the current guidelines, however, Lhamon replied, “I won’t be in control of what change does or does not happen, with respect to the Title IX regulations.” However, she did acknowledge that she had skirted the public notice and comment process while making policy during her tenure at the Department of Education’s Office of Civil Rights.
In fact, it was during this period when Lhamon issued some of her most sweeping guidance on Title IX. This included a 2013 “Resolution Agreement” with the University of Montana that expanded the definition of sexual harassment. Lhamon also issued a 53-page “questions and answers” document (calling it just a “questions and answers” document instead of a rule helps her avoid the formal rule-making process) that discouraged colleges from allowing cross-examination during Title IX hearings.
Even though Lhamon said that she was looking forward to participating in the regulatory process, she did not explicitly preclude the possibility of using “Dear Colleague” letters and other forms of guidance that allow her to circumvent it. This should raise concerns about the types of guidance that could be released, especially given Lhamon’s previous record at the Office of Civil Rights.
Lhamon also pledged to enforce and abide by the law. In addition to promising to enforce the current Title IX rules, she also emphasized that the office will follow binding law, including appeals court decisions cited by Sen. Susan Collins of Maine.
However, it was the nominee’s adamant commitment to the law (and her past statements) that caught her in a confirmation quagmire. Republican Sen. Bill Cassidy asked Lhamon about a May 2020 tweet in which she said that then-Secretary DeVos’s rules made it “permissible to rape and sexually harass students with impunity.” Cassidy asked her if she would enforce the law.
Senator Cassidy: “Even though the law says that you have permission to rape and sexually harass with impunity, you would enforce the law?”
Lhamon: “Yes.” (1:03) pic.twitter.com/tX5vhVyVup
— Andy Grewal (@AndyGrewal) July 13, 2021
Lhamon replied that, if she were confirmed, she would enforce the current regulations. However, after further questioning by Cassidy, Lhamon remained unapologetic about the tweet. She told the committee, “The regulation permits students to rape and sexually harass with impunity. I think that the law, that the regulation has weakened the intent of Title IX that Congress wrote.”
Lhamon elaborated that, under the current guidance, there would be no responsibility for the school to investigate claims of sexual harassment or assault. After further questioning from Cassidy, she admitted that a local prosecutor would still have the option to prosecute cases of sexual assault.
During the hearing, Lhamon unrepentantly defended her record and previous statements. She justified her use of guidances by saying that the regulatory agenda was set by the Obama administration by the time she arrived. Lhamon also responded to criticism of her 53-page Title IX guidance, saying that it did not prohibit cross-examination. Rather, it stated that there should be “parity” between the complainants and the accused.
Lhamon also insisted during Burr’s initial round of questioning that a “presumption of innocence” did not exist in the current regulations. She clarified that the Trump administration’s rules noted that criminal procedure did not apply in schools.
Toward the end of the hearing, Burr explained that the current policies did contain a presumption that the respondent is not responsible for alleged misconduct. When asked whether she would keep this presumption, Lhamon conceded that Title IX investigators should be “open” to the possibility that an individual is not responsible for misconduct.
In response to question from Sen. Burr, Lhamon again won’t say that she endorses the presumption of innocence; will only say that in “civil rights investigations,” TIX adjudicators “should be open to the possibility” that acc’d students aren’t guilty.
— KC Johnson (@kcjohnson9) July 13, 2021
Other Biden nominees have previously been caught in hot water for their previous statements. Biden’s OMB nominee Neera Tanden and Pentagon nominee Colin Kahl came under scrutiny by Republicans for their tweets. Both made attempts to walk back or contextualize their comments.
In contrast, Catherine Lhamon approached the criticism of her record and statements very differently from Tanden and Kahl. Instead of apologizing, she stood her ground. But by doing so, Lhamon has confirmed what we already knew about the Biden administration: It isn’t so centrist after all.
