Senate Committee Deadlocks, Holds Up Biden Nominee Who Rejects Constitutional Due Process Rights For College Students

A Senate committee on Tuesday failed to advance a Biden nominee after she proved hostile to the presumption of innocence and due process rights during her hearing.

The Senate Committee on Health, Education, Labor and Pensions (HELP) deadlocked in an 11 to 11 vote on advancing the nomination of Catherine Lhamon to lead the Department of Education’s Office for Civil Rights. The vote fell along party lines, indicating an increase in the number of Republican senators who appear to be concerned about due process rights for college students.

Lhamon’s position would have her oversee the Education Department’s Title IX rules, which prohibit sex-based discrimination. Title IX, the statute passed in 1972 as part of the Education Amendments, has been used in past decades to do the exact opposite of what it is meant to do by discriminating against men. It began with sports. Title IX ushered in an era of women’s sports on college campuses – a good thing – but quickly became used as a cudgel against universities. In a landmark lawsuit against Brown University decades ago, a court decided that it wasn’t enough for schools to simply provide equal opportunities in sports for men and women. No, any discrepancy in athletics participation was viewed as discriminatory, essentially telling schools that they had to find a way to make women interested in sports or else be accused of discrimination. Because schools couldn’t do this, they ended up cutting men’s sports to even the score.

From their Title IX eventually evolved to cover sexual misconduct. The theory was that schools weren’t adequately responding to student claims of sexual assault and harassment, and since most of the accusers were women, this was a form of sex discrimination. So the Obama administration ensured that Title IX discriminated against men accused of sexual misconduct, by encouraging schools to disregard due process and find more men responsible and then punish them.

This resulted in hundreds of lawsuits and more than 100 court decisions finding that schools needed to provide some basic fairness and due process in their sexual misconduct adjudications.

Lhamon was one of the biggest proponents of rejecting due process and fairness in sexual misconduct claims. She ignored court cases and, along with most Democrats and their media supporters, insisted that such protections for accused students amounted to disbelief of accusers. The idea that someone could be falsely accused was flatly rejected, meaning any process was simply a show before punishment was doled out.

But as I and others have documented extensively, the lawsuits show that the allegations are often deficient to prove guilt or sometimes pretty blatantly false. Yet still, students have been punished.

During her testimony on July 13, Lhamon rejected the presumption of innocence and defended past tweets where she claimed Trump-era Title IX regulations that required basic due process would allow students to “rape” with “impunity.”

In May 2020, Lhamon tweeted that then-Education Secretary Betsy DeVos “presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity. Today’s students deserve better, including fair protections consistent with law.”

Lhamon’s tweet was wildly inaccurate, as DeVos’ Department of Education saw the introduction of due process rights for students accused of sexual assault and harassment, something Lhamon worked to dismantle when she worked for the Obama administration. DeVos’ rules did not take “us bad to the bad old days,” they defined sexual assault and harassment and ordered schools to provide accused students an opportunity to defend themselves, contrary to what Lhamon, Democrats, and the media want for students – which is immediate punishment based solely on an accusation.

Sen. Richard Burr (R-NC) asked Lhamon about this tweet during the hearing. Lhamon defended her tweet. This breaks with another one of Biden’s contentious nominees, Neera Tanden, who, at the very least, tried to distance herself from one of her most inflammatory tweets.

At that same hearing, Lhamon also claimed federal Title IX regulations don’t require accused students to be presumed innocent, but that is exactly what they require. Section 106.45 (b)(1)(iv) of the Education Department’s Title IX rules state:

Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

While Lhamon’s nomination failed to advance out of the committee, she could still get the position if the full senate votes to move the nomination out of the committee. Given the disapproval of Lhamon from HELP committee Republicans, however, this seems unlikely to occur.

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