On August 3, the Senate Committee on Health, Education, Labor, and Pensions (HELP) deadlocked in an 11-11 vote on Catherine Lhamon’s nomination to return to her Obama-era post as Assistant Secretary of Education for Civil Rights.
As a result, Lhamon’s nomination will not proceed to the full Senate for a confirmation vote unless a member of the Senate’s Democratic leadership specifically endorses it, and then only if such a motion to proceed is approved by the full Senate after an open debate.
The HELP committee vote fell strictly on party lines, but confirmation votes, especially for lower-level federal appointments, almost always break in favor of presidential nominees regardless of the partisan composition of the Senate or its committees.
In February, the very same committee referred Education Secretary Miguel Cardona to the full Senate by a decisive vote of 17 to 5.
Lhamon, however, was different.
During her previous tenure in the post, she threatened to withhold all federal funds from U.S. colleges and universities that failed to enforce the so-called “Dear Colleague Letter,” a 2011 missive requiring institutions to dispense with due process rights for individuals accused of discriminatory harassment purportedly forbidden by Title IX of the Education Amendments of 1972.
By the time Lhamon left office in 2017, more than 500 institutions had been placed under investigation by her former department, while over 700 mostly successful lawsuits – 73% of which name accusers as defendants – have been filed alleging violations of due process and relevant civil rights laws, as well as defamation and other torts.
After lengthy public consultations, in August 2020 the Trump administration’s Department of Education definitively replaced Lhamon’s anti-democratic dictates with new regulations that restored many due process rights enshrined in over a thousand years of Anglo-Saxon jurisprudence, including legal representation, cross-examination, access to all evidence, presumption of innocence, a formal hearing, and advance notification of allegations, among others.
When Lhamon’s nomination to return to her post was announced in May, numerous concerned specialists, public interest groups, and media outlets (including this column) recalled her appalling record with horror and urged the Senate to deny her confirmation.
Lhamon, who had sharply criticized the Trump administration’s rollback of her policies, delivered a disastrous performance when questioned by the HELP committee last month.
Senator Bill Cassidy asked her if she still believed, as she tweeted in May 2020, that guaranteed due process rights would allow male university students to “rape with impunity” on American college campuses.
Lhamon unambiguously stated that she did: “I think what I said in the tweet, so, the regulation permits students to rape and sexually harass with impunity.”
One wonders how many sensible people would agree that being able to retain counsel, cross examine one’s accuser, or receive a hearing are tantamount to violent sexual assault, but Lhamon’s shocking zealotry should paralyze them with fear.
Senator Richard Burr asked her if she believes respondents in Title IX investigations should be presumed innocent.
Lhamon discouragingly replied only that investigators “should be open to the possibility that the person is not [guilty],” a far cry from anything resembling due process as we have known it for the past millennium.
Burr later asked, “Should an accused student be allowed to see evidence against them that could clear them of charges?”
Yet again, Lhamon failed to endorse basic fairness: “Likewise, Senator, the current Title IX regulation, which is operational now, gives students that right.”
She dodged the question of whether she personally supports that right, as anyone concerned with due process readily would, and thereby suggested that she may well work to reverse this and other provisions the second she returns to office.
To Lhamon’s everlasting shame, on multiple occasions she did not even try to hide her opposition to basic due process for the accused.
It is easy to understand why all eleven Republican Senators on the HELP committee voted against allowing her nomination to proceed to the full Senate.
The eleven Democrats have progressive colleagues and constituencies to fear, but one might wonder how much they really care about their college-bound sons and grandsons.
It remains to be seen whether Senate Democrat leaders will get the message and resist moving for a full confirmation vote.
In an evenly split Senate with a couple of independent-minded Democrats, the resulting debate may well embarrass them and the Biden administration.
But its outcome, and a possible confirmation vote, will rest on more than half the Senate believing that Lhamon’s outspoken opposition to due process is something they can support as tough midterm election battles loom.
Paul du Quenoy is President of the Palm Beach Freedom Institute. He holds a Ph.D. in History from Georgetown University. Read more — Here.
© 2021 Newsmax. All rights reserved.