Biden nominates Obama alumna to Education Department, ignites criticism from free speech organization

A civil liberties nonprofit has criticized nominee Catherine Lhamon, citing her role in Obama-era Title IX policies.

Lhamon once led the charge to pressure universities in undermining students’ due process rights in sexual misconduct cases.

The Foundation for Individual Rights in Education slammed President Joe Biden for nominating Catherine Lhamon, an alumna of the Obama administration, to a top Department of Education post. 

Lhamon, who presently serves on Biden’s newly-established Domestic Policy Council for Racial Justice and Equity, was nominated as Assistant Secretary for Civil Rights at the Department of Education by President Obama in 2013. She once led the charge to undermine students’ due process rights in cases of sexual misconduct.

Over the past decade, Lhamon has also worked as Legal Affairs Secretary to Governor Gavin Newsom of California and chair of the U.S. Commission on Civil Rights.

However, as the FIRE explained in a statement, “the Office for Civil Rights enforced guidance that gutted due process protections and violated the First Amendment” under Lhamon’s leadership. Lhamon used that guidance “to pressure institutions to restrict constitutionally protected speech and disregard basic procedural protections in campus disciplinary hearings.”

[RELATED: Trump admin. officially reverses Obama-era Title IX rules]

A paper written by FIRE Vice President Samantha Harris and Brooklyn College Professor K.C. Johnson explains that Lhamon was part of an activist movement to “to adopt procedures that all but ensured schools would find more accused students responsible in campus sexual misconduct cases.” 

The authors also explain that judges have repeatedly expressed concerns about “colleges failing to respect the due process or procedural fairness rights of their students” and “discriminating against accused students in violation of Title IX.” Likewise, they state that over 500 accused students filed suits against their universities after President Obama’s Department of Education changed its sexual assault guidance in 2011.

The paper explains that Lhamon authorized the Office of Civil Rights to extend their investigation of a Georgetown University sexual misconduct incident to “all sexual assault adjudications at the school for a three-year span” — a move that significantly increased the financial burden of a school under investigation, “even if the school had done nothing wrong.”

“No longer was it simply monitoring whether schools were engaging in discriminatory acts,” explained Harvard Law professors Jacob Gersen and Jeannie Suk Gerson, as quoted by the paper. “Rather, OCR’s task became specifying... schools’ policies, procedures, and organizational forms.”

[RELATED: Mizzou admin: Men who ask out smaller women could violate Title IX]

Those outcomes directly led to criticism of Lhamon’s current nomination. 

“The United States Senate should reject Lhamon’s nomination unless she commits under oath to maintaining key procedural protections in campus Title IX proceedings,” continued the FIRE’s statement. “Among these are the rights to a live hearing to contest charges, to an express presumption of innocence, to meaningful cross-examination, and to access to all of the evidence in an institution’s possession, including exculpatory evidence.”

“Without that commitment, it is all but certain that the Department of Education will return to its discredited practice of trampling student rights,” it concluded.

Joe Cohn — Legislative and Policy Director for the FIRE — told Campus Reform that under Lhamon’s leadership, “OCR did not just pressure institutions to roll back due process protections, but it also allowed institutions to use overbroad definitions of peer-on-peer harassment that threatened students’ free speech rights.”

Campus Reform reached out to the FIRE for comment; this article will be updated accordingly.

Follow the author of this article on Twitter: @BenZeisloft