During her nearly four years running Barack Obama’s Office for Civil Rights (OCR), Catherine Lhamon was nothing if not consistent. She sought to use the power of her office—chiefly by threatening to withhold federal funds—to force colleges and universities to change their campus sexual assault policies. Every substantive change demanded by the Obama administration made it more likely an accused student would be found guilty.
So it’s been rather startling in recent days to see Lhamon claim that defending the fair treatment of accused students was a cardinal principle of her OCR tenure. On February 17, she tweeted, “The OCR I led insisted on a rigidly fair process for all parties involved in sexual violence investigations. Resolution agreements demonstrate that, notwithstanding baseless claims to the contrary. Fairness to all involved is essential to justice.”
Justice Ruth Bader Ginsburg’s comments that she agreed with some of the complaints about the unfairness of Title IX tribunals prompted Lhamon to tweet, “I agree. That’s one among many reasons why we need aggressive federal enforcement of law to ensure fair process to all parties.” As proof, she cited two (Wesley and Minot State) of the scores of resolution letters issued by OCR during her time in office, but no policy document from OCR.
We live in an era of political shamelessness. But Catherine Lhamon positioning herself as someone who demanded fair treatment of accused students is nonetheless remarkable.
Although it hardly should be necessary to do so, it’s worth reviewing Lhamon’s actual record to see the sparseness of any desire for fair adjudications. Her highest-profile policy document—2014 guidance—made clear that due process for the accused took a back seat to the Obama administration’s reinterpretation of Title IX. “Of course,” Lhamon warned, “a school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.” She offered no explanation (then or later) as to why her interpretation of Title IX could trump the constitutional due process safeguards for students at public institutions.
Nor was there anything in Lhamon’s public comments as OCR head to leave an impression that she was, at heart, a covert campus civil libertarian. With strong support from accusers’ rights activists, Lhamon created what her successor dubbed a “list of shame,” publicizing the names of schools under OCR investigation (without revealing the details of the allegations) in an apparent effort to browbeat them into signing resolution letters with her. The most notorious of these letters required such institutions as SUNY and Southern Methodist to re-open investigations in cases where students already had been cleared.
The right to due process should not be thought of as any less fundamental or unalienable than any other right.
Thanks UkiyaSeed. Will correct it 😀
You and Stuart Taylor wrote, ‘The Obama decrees flouted basic principles of sound policymaking and, in the view of many experts, violated the notice-and-comment provisions of the Administrative Procedure Act of 1946. Catherine Lhamon, Obama’s second head of the Education Department’s Office for Civil Rights, recently derided those provisions as “essentially a popular vote.'” As someone who has commented in writing on an unrelated Justice Department matter, I find Ms. Llamon’s comments disturbing and offensive. It would seem that Ms. Llamon has no more respect for transparency and participation than she has for due process.
What was the case in Minot State?? I know the Wesley one.
It has a throwaway line abt respecting rights of the accused, amidst a ruling that stressed tilting the process in favor of the accuser. Yet Lhamon has been citing one phrase of a 38pp letter as reflecting her deep commitment to fairness for the accused.