On Tuesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) scrutinized Catherine Lhamon, a former assistant secretary in the Obama-era Department of Education whom President Biden tapped to return to her previous job.
Lhamon was a key enforcer of the Obama administration's ruinous guidance relating to Title IX, the federal statute that prohibits sex and gender-based discrimination in public education. Lhamon actively participated in the federal government's vast expansion of Title IX to include due-process-free investigations and tribunals for students and professors accused of sexual misconduct. President Obama's Education Department urged colleges and universities to deny cross-examination during Title IX hearings, and move to a single-investigator model that involved a sole official—often a hostile one—dictating the terms of the entire procedure.
These unfair proceedings were reformed during the Trump years: Education Secretary Betsy DeVos restored several due process protections to the Title IX process, effectively ensuring that the accused would be more likely to enjoy the presumption of innocence to which they are entitled under liberal norms of criminal justice.
That's why it was so troubling on Tuesday when Lhamon all but assured that the innocent-until-proven-guilty standard would again be jeopardized if the Senate gives her back her old position. Consider this exchange between Lhamon and Sen. Richard Burr (R–N.C.):
Burr: "Would you support keeping a presumption of innocence requirement in the current Title IX rule, if the Title IX rule is changed?"
Lhamon: "I'm trying to not to over-lawyer. But there isn't a presumption of innocence in the existing Title IX regulation. In fact, the Title IX regulation that the Trump administration took pains to note that criminal procedure does not apply in schools.
Burr: "But my question was, would you support keeping a presumption of innocence?"
Lhamon: "Yes, I understood that. But I couldn't keep something that is not there. It is not there now."
Lhamon is engaging in semantics. While the new Title IX rules—which went through the formal administrative rule-making process, including legal review and public notice and comment periods—might not literally use those words, their entire purpose was to re-enshrine the idea that accused students and professors should not be presumed guilty from the outset of a complaint. That's the point of requiring cross-examination, granting access to attorneys, and mandating an actual hearing rather than a report by a single investigator. Lhamon's opinion that colleges and universities are under no obligation to assume that people accused of sexual misconduct are innocent until proven guilty is thus a startling admission.
This was not the only low moment of her hearing. She later clarified that Title IX adjudicators should merely be "open to the possibility" that an accused person is innocent. She also declined to walk back her previous comment that the DeVos rules make it "permissible to rape and sexually harass students with impunity."
It's worth remembering that even the late Supreme Court Justice Ruth Bader Ginsburg, a progressive feminist icon, criticized Obama-era Title IX guidance "for not giving the accused person a fair opportunity to be heard." Lhamon has a long history of working tirelessly to undermine basic fairness, and her testimony before the Senate earlier this week gave no indication that she's had a change of heart. Her begrudging contention that she would enforce the existing guidance, even if she does not agree with it, was unpersuasive.
The civil liberties of students and professors will be gravely imperiled by her confirmation as assistant secretary in the Education Department's Office for Civil Rights.