As I reported here, the Biden Administration’s pick to head the Civil Rights Division of the Department of Education, Catherine Lhamon is plainly unfit for the job and her nomination should be soundly defeated. During her stint in that same position with the Obama Administration, she proved herself to be an implacable foe of due process rights for college students facing Title IX accusations of sexual impropriety. The 2011 “Dear Colleague” letter required colleges and universities to sharply curtail due process rights for accused students. That in turn produced a tsunami of lawsuits by students complaining that the schools had violated either their constitutional rights, their contractual rights, or both.
Fortunately for all, President Trump’s Secretary of Education, Betsy DeVos, promulgated rules under the Administrative Procedure Act that sought to restore meaningful due process rights to students in those Title IX cases. And, sure enough, it worked. As the new rules were being finalized, there was some sentiment among observers that the schools would simply ignore them. Such was their seeming enthusiasm for limiting due process.
But now, the Foundation for Individual Rights in Education (FIRE) has released its new study of 53 institutions of higher learning that finds, among many other things, that the Devos rules had a powerful effect on the schools’ conduct of Title IX hearings. In FIRE’s words, they “did indeed adopt Title IX policies with comparatively robust safeguards” for due process.
With the Lhamon nomination, that sensible - and above all legal - policy is now under threat from the Biden Administration that plainly prefers the bad old days in which not only were men denied the most basic due process rights, but colleges and universities were subjected to hundreds of civil suits and paid out significant sums in damages and attorney’s fees. Given that the Obama Administration had essentially required them to violate the constitutional and contractual rights of accused students, it also required them to pay lawyers and hefty judgments to defend their illegal policies. Amazingly, the Biden Administration seems intent on forcing them to do so again. Why else would it nominate Lhamon? FIRE says,
A new report from the Foundation for Individual Rights in Education examines the gains realized since Title IX regulations went into effect last year — improvements that could vanish if Lhamon is confirmed.
“We were finally seeing student rights moving in the right direction, but Catherine Lhamon’s nomination just shows how threatened the progress we’ve made is,” said FIRE Executive Director Robert Shibley. “If confirmed, Lhamon’s history and rhetoric indicate that she will put her thumb on the scale of justice — ripping away fundamental rights and encouraging a patently unfair shadow justice system that deprives students of their right to due process.”
The Administration’s antipathy for the most basic due process rights is bad enough, but its willing subjection of colleges and universities to needless litigation and the besmirching of their reputations verges on the unhinged.
But now a new threat to the Biden Administration’s plans has cropped up. A federal district court in Massachusetts has ruled that, with one very minor exception, the rules promulgated by DeVos and the Trump Administration pass both constitutional and statutory challenges. Opponents of the due process rights of students have filed at least five lawsuits challenging the rules that went into effect last August. Two of those have been dismissed and two are pending. The Massachusetts case is the only one to have been finalized and it stoutly supports the rules themselves and the process by which they came into being.
Of course it’s possible that another judge in another jurisdiction could issue a contrary opinion on the rules, in which case it might fall to the U.S. Supreme Court to sort out which jurisdiction is right. But in that case, given the makeup of the Court, I strongly suspect that the outcome would favor the new rules.
In that case, existing law would limit Lhamon’s mischief-making, exactly as it should have all along. But, when you’re a true believer like she is, students’ constitutional and statutory rights are less something to be respected than to be skirted. So, if her nomination is approved, expect to see further attacks on those rights in order to combat a “crisis” in campus sexual assault that many years of Clery Act data strongly suggest doesn’t exist and never did.