“Empathy and respect” are not the first words that come to mind when discussing the former Office of Civil Rights head who gutted due process rights for the accused.
But former Secretary of Education Arne Duncan uses these words to describe Catherine Lhamon. In an op-ed for the Hill, Duncan gave an emphatic endorsement for Lhamon’s nomination, saying she was “one of the most dedicated civil rights leaders in the nation.” After lambasting the “brutal four years of Donald Trump,” Duncan also said of Lhamon:
“Equally importantly, she treats colleagues, partners, students, and educators with empathy and respect, even those with whom she disagrees … What I saw in Catherine was someone who listens to all sides, works closely with the staff and experts who bring decades of experience to the work at hand, and then takes action.”
If Lhamon’s record is any indication, an Office of Civil Rights under her leadership will not listen to all sides in the debate over Title IX due process rights.
As the head of the OCR during the Obama administration, Lhamon dramatically slanted Title IX adjudication against those accused of sexual misconduct. A 2013 “Resolution Agreement” required the University of Montana to “revise its policies” to “provide accurate definitions” of sexual assault and harassment.
The same agreement more broadly defined sexual harassment as “unwelcome conduct of a sexual nature.” As J. Grant Addison wrote last month for the Washington Examiner, this and other policies “greatly expanded” the scope of what could be considered sexual misconduct.
Lhamon also issued a since-rescinded 53-page guidance that “strongly discourages” colleges from allowing cross-examination during Title IX hearings. She also argued that attempts to afford the accused due process rights should not “restrict or unnecessarily delay the protections” provided to the accuser. The OCR effectively warned schools against prioritizing due process rights for accused students.
And if you believe Lhamon treated universities fairly, think again. As Emily Yoffe reported for Reason, the OCR released a list of colleges under Title IX investigation at the urging of activists. The initial 2014 list of 55 schools expanded to include 223 schools by the time Obama left office. Lhamon also threatened to cut off federal funding to schools that refused to follow OCR guidance.
“Colleges received Lhamon’s message loud and clear: Finding accused students guilty, even in dubious cases, would ward off bad publicity and keep schools in the OCR head’s good graces,” explained history professor K.C. Johnson in National Review.
As a result of OCR’s trampling of due process rights, over 700 Title IX civil suits have been filed by students accused of sexual misconduct. And more than 200 favorable decisions have been returned to accused students, according to Johnson. The judiciary has recognized that, in many cases, the OCR and universities’ actions were hardly fair for the accused.
Duncan is right when he says that Lhamon is someone who “takes action.” However, as her record at OCR shows, she clearly did not listen to “all sides” of the Title IX debate.
