Justin Dillon and Stuart Taylor Jr.
It is now so common in Washington to oppose even a president’s lower-level nominees that no one takes such opposition seriously anymore. It’s just more partisan background noise. The problem with crying “wolf,” of course, is that when the wolf finally comes, no one listens.
Now, however, the wolf is at the door. Her name isCatherine Lhamon, and she is being nominated to retake her old job – head of the Education Department’s Office for Civil Rights (OCR).She played a major role during the Obama administration in ruining the educations and often the lives of countless students – almost all of them male – who were found guilty of sexual assault under flagrantly unfair, effectively guilt-presuming rules dictated by her office. Her commands also pressured universities to ignore or discount powerful evidence of innocence.
So this time around, Congress needs to heed the cry.
OCR regulates Title IX in schools
OCR is the tip of the Education Department’s spear when it comes to regulating how universities (and K-12 schools) nationwide enforce Title IX, the federal law guaranteeing equal treatment for the sexes in education. During the Obama administration, OCR – headed by Lhamon from 2013 to 2017 – took unprecedented steps to dictate to schools exactly how they should handle allegations of sexual harassment and assault on their campuses. They were told how – and how not – to handle these cases, and threatened with a withdrawal of their federal funding if OCR was not pleased with the outcomes.
The main casualty of this new approach was due process. Respondents were marched through kangaroo courts run by biased administrators who would “start by believing” accusers, as the mantra went. OCR forced schools to use the “preponderance of the evidence” standard in Title IX proceedings, far lower than the “clear and convincing evidence” standard schools such as Princeton and University of Virgnia had used for years. It restricted cross-examination during hearings. And it forbade schools from offering voluntary, informal resolution in sexual assault matters, which meant that complainants had to choose between doing nothing and submitting to a lengthy formal resolution process.
As the false accusations and flawed guilty verdicts piled up, so did the lawsuits – scores of which went poorly for the schools. In a case against George Washington University, a federal court in Washington criticized the school for having “strained to overlook” evidence directly undermining the complainant’s allegations, “leaving no trail of reasoning” in the process.
In a case against Oberlin College – which at one pointhad a 100% conviction rate for students accused of sexual misconduct, who are always overwhelmingly male – a federal appeals court called Oberlin’s expulsion of the male plaintiff “arguably inexplicable”based on the evidence.
And in a case against Purdue University, another federal appeals court found evidence of sex discrimination when Purdue refused to allow the male respondent to see a copy of the evidence against him, and two of the three people on his panel admitted that they hadn’t bothered to review it, either.
Shortly after taking office, President Donald Trump’s Education secretary, Betsy DeVos, promised to even the playing field – to protect the rights of both the accused and their accusers. The DeVos team made good on that promise in a two-year process that culminated in the issuance last May of new regulations that were far more balanced than ever before.
Theyrequired such commonsense procedures as live hearings instead of Javert-like single investigators, the kind of cross-examination that has, for centuries, proved the best way to test the credibility of witnesses, the right to be notified in detail of the specific accusations, and the right to unbiased adjudicators.
Lhamon will work hard to roll back the new regulations if she is confirmed. Her nomination represents an existential threat to the culture of fairness that the new regulations have created. Indeed, she infamously tweeted last year that the new regulations would take the country back “to the bad old days,” when “it was permissible to rape and sexually harass students with impunity.” Lhamon is not one to let facts get in the way of a good tweet.
Lhamon threatens federal funding
In fact, the real “bad old days” were when Lhamon threatened to cut the federal funding of any university that failed to heed her commands, none of which was concerned with providing more due process.“Do not think it’s an empty threat,” she told a group of university administrators in July 2014, less than a year into the job. “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.”
In 2016, she admitted with almost admirable candor that it’s “nice when you carry the big stick of the federal government.”
Unfair Title IX procedures can wreak enormous damage on students. Respondents’ lives are changed forever, even when they win. Complainants are put through a process over which they wind up having no control. Even schools that want to be fair often find that they do so at their peril, knowing that the “big stick” of the government tends to swing only one way.
A vote to confirm Catherine Lhamon is a vote against due process and a vote to restore the radical ideological underpinnings that the Secretary DeVos worked hard to dismantle. It is time for senators to open their eyes to the fact that, as the late Antonin Scalia famously asserted in another context, “this wolf comes as a wolf.”
Justin Dillon is a partner at KaiserDillon PLLC in Washington, D.C., where he represents students in campus misconduct proceedings nationwide. Stuart Taylor Jr. is a co-author, with KC Johnson, of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).