Biden’s worst nominee

Last month, Biden tapped Lhamon to head up the Department of Education’s Office for Civil Rights, which has jurisdiction over Title IX enforcement and racial discrimination matters in education. Her selection is appalling but unsurprising. Lhamon previously served in the same post, assistant secretary for civil rights, from 2013-2017 during the Obama administration, where she used her office to bully colleges and universities into contravening the due process and speech rights of both students and professors.

Using a series of extra-legal “guidance documents,” Barack Obama’s OCR under Lhamon and her predecessor, Russlynn Ali, unilaterally reinterpreted a 40-year-old law and gave the federal government unprecedented authority to dictate what standards and procedures schools must use when handling allegations of sexual assault and harassment. Relying on junk science and bunk statistics from activists (which Biden championed aggressively), they used this newfound authority to push colleges into finding accused students guilty. And in the process, they forced the creation of what has been called a nationwide “college sex bureaucracy,” as schools hired on-campus Title IX coordinators and outside consultants, which has turned into a self-perpetuating morass of feckless campus bureaucrats who continue to threaten the rights of students and professors.

Some background: These battles center on Title IX of the Education Amendments of 1972. Title IX is a federal civil rights law that prohibits sexual discrimination in federally funded education programs, which means basically every college and university in America, public or private, as well as K-12 schools. The pertinent section of the law states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” As Johnson and Stuart Taylor, authors of The Campus Rape Frenzy, have pointed out, “congressional debate gave no hint of an intent to extend federal authority to the point of dictating procedures that colleges must use to adjudicate sexual assault allegations. Nor, for 20 years, did OCR take any steps in that direction.”

In 2011, under Ali, Obama’s OCR released a “Dear Colleague” letter, an “informal” guidance letter without the force of law, informing the more than 7,000 colleges receiving federal aid that the administration’s interpretation of Title IX necessitated that schools use a particular set of procedures in regards to allegations of sexual assault and misconduct. The letter told schools to use the “preponderance of evidence” standard, which is the lowest possible standard of proof, in all investigations of sexual misconduct. (The preponderance of evidence standard means that if a campus bureaucrat thinks there’s a 50.1% chance an accusation is true, then the accused student is guilty.) It told schools to impose a form of double jeopardy by requiring universities to allow accusers to appeal not-guilty findings, set an accelerated timetable for investigations with a recommended 60-day limit, and also strongly discouraged schools from allowing cross-examination of accusers.

And the letter just happened to come out the same day President Obama announced his reelection bid. It was a base-pleasing political stunt that would have wide ramifications.

Lhamon took the reins of OCR in 2013, and things only got worse. She produced a second, 53-page guidance document that further warned colleges against allowing students to cross-examine their accuser (having a lawyer cross-examine on their behalf was already prohibited by most schools) and against prioritizing accused students’ rights to due process. And in a self-proclaimed “blueprint” for Title IX compliance issued in 2013, the Education and Justice departments instructed colleges to adopt a shockingly expansive and unconstitutional definition of sexual harassment, and made clear that conduct needn’t even be considered “objectively offensive” by a “reasonable person” to constitute harassment. Gone was any semblance of an objective standard by which to judge the truth of an accusation that would ruin lives.

This may sound too ludicrous to be true, but it was a line repeatedly pushed by Lhamon’s office. In 2016, for example, it informed Frostburg State University that it was in violation of Title IX because the school’s sexual harassment policy stated that “in assessing whether a particular act constitutes sexual harassment forbidden under this policy, the rules of common sense and reason shall prevail.”

So, for those keeping track at home, not only did the federal government unilaterally lower the bar for what it takes to be found guilty of sexual misconduct, under Lhamon, it also greatly expanded what type of conduct could be considered as such. Furthermore, she championed what is known as the “single inquisitor” model — wait, I’m sorry, the “single investigator” model — wherein a single person is hired by a school’s Title IX officer (or is the Title IX officer) and simultaneously acts as investigator, prosecutor, judge, jury, and, most often, social executioner. And remember, this Torquemada doesn’t even have to be a “reasonable person” operating via common sense!

Colleges and universities are PR-obsessed anyway, and Lhamon leveraged both the bad press of a federal investigation and the threat of loss of federal funding to coerce schools into following OCR’s dictates. At a conference in 2014, she all but bragged about her set of “very, very effective tools” for enforcement, saying that “if a school refuses to comply with Title IX in any respect, I will enforce.” In May 2014, her office began releasing a list of the schools under investigation in order to shame them publicly into following Lhamon’s whims. As Emily Yoffe documented for Reason in 2019, this was done at the explicit behest of activist groups.

Lhamon’s coercion campaign worked, and the resulting effects on campus life were as malevolent as expected. Sexual assault investigations were decided via kangaroo courts and star chambers. The boundaries of prohibited speech were expanded so dramatically that even law professors were being called up on Title IX charges for simply discussing sexual jurisprudence. Writing in the Chronicle of Higher Education back in 2017, Harvard Law professors Jacob Gersen and Jeannie Suk Gersen explained, “The concept of sexual misconduct has grown to include most voluntary and willing sexual conduct. … The federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms. The results are not only cringeworthy but also unfair, potentially racially discriminatory, and detrimental to the crucial fight against sexual violence.”

Not to mention expensive. According to Peter Lake, a law professor at Stetson University, complying with the Obama administration’s Title IX dictates cost colleges and universities upward of $100 million.

The objective was for schools to find accused students guilty, and as Gersen and Gersen note, achieving that goal necessitated discrimination against male students, particularly black male students. There are no national statistics on the racial makeup of campus sexual assault complaints, but the anecdata is clear and numerous. For example, Jeannie Suk Gersen wrote in 2015 that, in her experience talking with faculty members and administrators who work on sexual misconduct cases, “most of the complaints they see are against minorities.” In an interview last year with Richard Bernstein, one former OCR lawyer admitted, “We did see some bad cases in the Obama era, cases where it basically didn’t matter what evidence there was. The college was going to find against the defendant, the male defendant, no matter what. I think the schools felt pressure under the Obama guidance.”

Obama’s OCR under Ali and Lhamon drew widespread criticism, and not just from conservatives. The Foundation for Individual Rights in Education issued numerous reports and briefs outlining the unconstitutional and harmful effects of the “guidance document” governance. In 2014, 28 Harvard Law School professors signed a letter protesting Harvard’s specific measures adopted in response to OCR rules, which they stated “lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.” Professors from the University of Pennsylvania and Cornell each authored similar letters, and the American Bar Association and the American Association of University Professors, among others, also spoke out against the Title IX regime’s trampling of rights.

But all this pales in comparison to the lawsuits. For years, K.C. Johnson, a professor of history at Brooklyn College and the CUNY Graduate Center and a longtime chronicler of OCR’s malfeasance, has been tracking Title IX-related cases, and since 2011, the number has grown precipitously. According to one count, some 700 civil suits have been filed by students accused of assault against their university who claim the procedures used against them were in violation of their due process rights. “While courts typically defer to colleges and universities in academic-discipline cases, there have been 200 decisions favorable to students accused under Title IX since the Obama administration’s policy change,” Johnson wrote this month. “Federal appeals courts covering 29 states from Vermont to Alaska have issued rulings making it easier for wrongly accused students to sue their universities for gender discrimination.”

Upon taking office, President Trump’s secretary of education, Betsy DeVos, promised to redress the damage done by her predecessors and set forth new rules on campus sexual assault that grant the issue the seriousness it deserves while still protecting the due process rights of the accused. In 2020, after going through the lengthy rule-making and notice-and-comment period required to issue actual regulations with the force of law (which neither Lhamon nor Ali did), DeVos’s office issued its new Title IX regulations to schools. They are fair, common-sense procedures, requiring colleges and universities to offer a raft of support services and a sexual assault adjudication method that gives both the accuser and the accused access to things such as evidence and the ability to cross-examine witnesses. They came from the Trump administration, so many universities carped about them briefly, but the rule changes received praise from civil liberties groups such as FIRE, which called them “an important victory.”

DeVos’s process took more than two and a half years, considered more than 120,000 comments received from the public before the final regulation, and released 2,000 pages of meticulous explanations for the choices made. Lhamon’s response to the regulations was to shriek on Twitter that they would take “us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” Biden offered similarly ignorant whimperings, consistent with his earlier statements against DeVos and her planned Title IX revision. Back in 2017, Biden branded people critical of Obama-era Title IX policies “cultural Neanderthals,” which is bad but not as bad as when he implied to Teen Vogue, of all places, that DeVos endorsed sexual assault.

Biden has his own role in this story that we’ve not the space to explore. But suffice to say, a large reason why Lhamon and her cronies were able to abuse due process and federal authority to the extent that they did, with little to no congressional oversight, is due to Biden’s backing. Biden, in turn, is proud of “his work” during the Obama administration on Title IX and sexual assault, despite not being aware of what is actually going on. Biden is particularly fond of trotting out the “1-in-5 women on campus are sexually assaulted” canard, for example, which, if true, would make Wesleyan about as safe as the Democratic Republic of Congo. Glaringly ironic is also the fact that this is Biden, who has had numerous women state he made unwanted physical contact and one woman, Tara Reade, accuse him of sexual assault. If he were a college student during the Obama administration, it is more than likely he would have had to face one of his administration’s sex tribunals.

By all accounts, Lhamon looks happy to pick up right where she left off, although she will have a hard time getting rid of the DeVos Title IX regulations. One wonders whether Lhamon even knows what a notice-and-comment period is?

Upon her nomination, FIRE released a statement saying, “The United States Senate should reject Lhamon’s nomination unless she commits under oath to maintaining key procedural protections in campus Title IX proceedings.” Senators should reject it period, regardless of any oath. Lhamon is the worst kind of feckless bureaucrat — a tin pot dictator with no remorse or insight who acts solely out of her own smug pretensions. We have years of evidence showing exactly how much and in what ways she will abuse her office, with hundreds and hundreds of court cases to prove it. And anyone who votes in favor of her confirmation should be ashamed.

J. Grant Addison is the deputy editor of the Washington Examiner magazine.