Senate Should Reject Biden's Assistant Secretary of Education for Civil Rights, Dismantle Title IX

On May 13, the White House announced that it will nominate Catherine Lhamon to serve as the Department of Education’s Assistant Secretary for Civil Rights. Lhamon held the post in the Obama administration – with disastrous results.

During her time in office, she promoted the so-called “Dear Colleague Letter,” a 2011 missive that required all institutions receiving U.S. federal funds to investigate allegations of “discriminatory harassment” – most notably including alleged sexual harassment – under a federal mandate purportedly contained within Title IX of the Education Amendments of 1972.

In a Kafkaesque distortion of Title IX’s original purpose, which was to ensure equal gender access to collegiate sports facilities, the nation’s colleges and universities were required to create bureaucracies to investigate and sanction alleged harassment. Failure to comply can result in the loss of all federal funds. “Don’t think it’s an idle threat,” Lhamon menaced a roomful of university administrators cowering before her at a conference at Dartmouth College in July 2014, “It’s one I’ve made four times in the 10 months I’ve been in office. So, it’s one that’s very much in use.”

University administrators raced to comply, safeguarding millions in government funds that they increasingly lavish on themselves, virtue-signaling that they care about an issue popular among progressives, and, best of all, received voyeuristic authority over the speech, behavior, and private lives of the students and employees whom they were once expected to serve. As Lhamon and people like her hoped and dreamed, American colleges and universities no longer merely impart knowledge and skills, but condition compliant individuals willing to surrender their basic freedoms, civil rights, and even personal privacy as a prerequisite to white-collar employment.

Guidance issued by Lhamon’s department abrogated a thousand years of Anglo-American due process. Under her regime, respondents were not permitted to confront or cross-examine their accusers or know their identities or accusations in advance. They were not allowed access to all evidence or to retain copies of investigative materials. Guilt was determined without a hearing by the so-called “preponderance of the evidence” standard rather than by conclusive evidence.

The results were predictable. Accusations emerged from drunken hookups, bad breakups, offhand comments, disputed grades, and other such situations, often months or even years later. Abusing Title IX for blackmail, revenge, intimidation, or to remove a rival are far from unknown. No national statistics exist, but at my former institution, the American University of Beirut, some 75 percent of respondents are found guilty of misconduct and sanctioned – the same proportion found guilty by the French Revolutionary Tribunal, which also abolished due process.

The methods Lhamon advocates have been widely denounced. According to one study, 91 percent of Americans oppose them. As of this writing, 715 federal lawsuits have been filed against institutions since 2011 – an average of one every five days. Most result in legal victories or settlements favorable to respondents. United Educators, the leading insurer of U.S. colleges and universities, has identified Title IX claims as its clients’ costliest liability.

Lhamon’s dictates have not helped the enforcers or those they claim to protect. A 2019 Chronicle of Higher Education article identified the job of Title IX coordinator as a “pressure cooker” that frequently causes its occupants serious psychological problems. Increasingly, they face personal legal liability to lawsuits from aggrieved respondents and from alleged victims claiming that their complaints were insufficiently addressed. As dispensable mid-level employees with often spotty career histories and questionable qualifications, they are easily thrown under the bus if an investigation creates controversy. Nearly two-thirds have been in their jobs for less than three years, and most do not long remain before burnout or professional disaster catch up with them.

Accusers often complain of stress and ostracism, and most also face legal liability. Some 73 percent of Title IX lawsuits include defamation claims against accusers, who are almost always legal adults with only limited protections. Regardless of the outcome, accusers’ names often appear in the public record, where they long remain visible to potential employers, romantic partners, and others who consider it wiser to pass them over.

In perhaps the greatest irony, a saturation of harassment allegations has caused many to be disregarded even when they may be true. New York Governor Andrew Cuomo remains in office despite allegations from ten women. Kevin Spacey is making movies again. The comedians Louis C. K. and Aziz Ansari continue to perform. Joe Biden won the Democratic nomination for president and sits in the White House amid multiple allegations. His running mate, and now Vice President, Kamala Harris publicly claimed to believe his accusers as recently as September 2019. Thanks in no small part to Catherine Lhamon’s fanaticism, the fertile ground that nurtured good will behind #MeToo has rapidly become the salted plain of cynicism supporting #SoWhat.

It may not be coincidental that the percentage of Americans who consider college education vital to success fell from 70 percent in 2013 to 45 percent just seven years later, a period that overlapped with Lhamon’s aggressive enforcement of Title IX. For the dwindling minority still drawn to academic study, whole “countercultures” have developed around institutions like Hillsdale College, which advertise their refusal to accept federal funds, and are thus Title IX-free. In an alarming reversal of U.S. higher education’s once vaunted international competitiveness, a rising number of American students now pursue degrees at foreign universities, where education is generally much less expensive in addition to being personally unintrusive.

After Lhamon left office in 2017, the Trump administration undid many of her edicts. Comprehensive new policies required advance notice of accusations, in-person hearings, cross-examination rights, full access to investigative materials, legal counsel, and other features of due process. Biden has pledged to reverse these measures, grossly mischaracterizing them as an effort to “shame and silence survivors” and give “colleges a green light to ignore sexual violence and strip [alleged victims] of their rights.” By nominating Catherine Lhamon to return to her post, he all but guarantees that respondents will go back to the Obama-era horror of having virtually no rights at all. Every member of the United States Senate should vote against her confirmation and then move to dismantle Title IX altogether. Their sons and grandsons pursuing college educations will not be safe otherwise.