One of the worst excesses of the
years was regulatory “guidance” that limited due process in sexual misconduct cases on campus. The Trump Administration fixed it with a proper rule-making. But here we go again as President
has nominated the same woman for the same job to impose the same standard of injustice.
The woman is
who is Mr. Biden’s nominee to be assistant secretary for civil rights in the Education Department. That’s the same job she held in the Obama years, when she was the top enforcer of Title IX guidance for colleges. Because “a Title IX investigation will never result in incarceration of an individual,” Ms. Lhamon’s office told colleges in a 2014 Q&A, “the same procedural protections and legal standards” that govern criminal proceedings “are not required.” Tell that to a young person whose life can be permanently scarred by a false accusation.
Her directive “strongly” discouraged “a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence” because it “may be traumatic or intimidating” for the victim. The standard of guilt for the accused was merely a preponderance of evidence. Several accused students sued in federal court, and more than one judge faulted schools for lack of due process under the Obama guidance.
education secretary, sought to restore some basic fairness to Title IX cases. Her rule in 2020, issued after ample time for public comment, included such due-process protections as the right of both parties to cross-examine witnesses and present and challenge evidence.
Ms. Lhamon claimed on
at the time that the DeVos rule was a return “to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” That was false even in the “bad old days,” and it’s false about the DeVos rule. But Ms. Lhamon was unapologetic in her Senate confirmation hearing. It’s a safe bet that, if confirmed, Ms. Lhamon would roll back the due process protections.
This time Ms. Lhamon will need her own rule to invalidate the DeVos rule, but look for other attempts to use Title IX guidance to impose social policies by executive fiat. Last month the Biden Administration issued new guidance to colleges that Title IX’s prohibition on sex discrimination will now also be interpreted “to encompass discrimination based on sexual orientation and gender identity.”
Depending on how it’s enforced, this guidance could give license to administrators seeking to restrict or punish dissenting viewpoints about transgender identity. It also has potential implications for women’s-only dorms, campus bathrooms and collegiate sports teams. Ms. Lhamon praised the guidance as “one of the most consequential policy actions for LGBTQ+ Americans ever signed by a U.S. President.”
Ms. Lhamon’s history shows she has an agenda to impose progressive social policy on campus no matter the costs to normal rules of due process and other rights. Senators who vote to confirm her should expect the same divisive results as the first time.
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Appeared in the July 21, 2021, print edition.