OPINION: Questions Senators must ask Catherine Lhamon, nominated to be the nation's top Title IX enforcer

President Biden nominated Catherine Lhamon to resume the same job she had in the Obama administration: Assistant Secretary for Civil Rights at the Department of Education.

As the debate over Title IX heats up, Lhamon is about to have significant influence over whether the Department of Education reverts back to the Obama-era policies that led to due process violations.

Today, the Senate will decide whether to confirm former Obama official Catherine Lhamon to be the Assistant Secretary for Civil Rights.

The appointment would make her the Department of Education’s leading official on civil rights laws, including Title IX. 

A typical confirmation hearing would consist of Senators trying to determine, in their best estimation, what the nominee would be like on the job. But this time, they don’t have to guess: Lhamon has done the job before, from 2013 to until a month before Obama left office. Her tenure saw damage done to students’ rights that took the Trump administration years to correct.

During her time at the Department, the administration’s Title IX policy was set by a 2011 “Dear Colleague Letter,” later rescinded by the Trump administration. The letter was not law; it was guidelines for colleges and universities on how to handle sexual misconduct complaints. Going against the letter’s recommendations was not illegal, but it would open up a college to being investigated by the Department of Education something no college wants. 

Based on the letter, many colleges’ Title IX processes became kangaroo courts. Families Advocating for Campus Equality has tracked almost 200 cases in which student sued their schools and won because they were denied due process or discriminated against during Title IX proceedings.

Per Samantha Harris and KC Johnson, writing for the NYU Journal of Legislation and Public Policy, an additional 70 of those lawsuits were settled out of court and thus avoided a judge’s decision.

Lhamon didn’t write the letter, but she allowed it to stand and ran the civil rights office based on its contents. Senators are now charged with discovering whether Lhamon would fix her past mistakes or repeat them. Here are five questions they should use to get there:

1. Under the Obama administration’s Dear Colleague letter, colleges repeatedly violated the due process rights of students. Given that President Biden is setting the stage for an overhaul of the current Title IX rule, how will you ensure that these rampant miscarriages of justice don’t happen again? 

2. The Trump-era Title IX rule, which is still in effect today, has critical protections for survivors that didn’t exist during the Obama era. Today, colleges are required to provide survivors of sexual assault with supportive services, such as the ability to change their class schedule or dorm assignment. The rule has rape shield protections for survivors, which means that their past sexual history cannot be held against them in a hearing. Can you commit to maintaining these protections, even if you choose to go through the legal process to undo the Title IX rule? 

3. Should transgender women   biological men   be permitted to participate in women’s sports? This is a yes-or-no question. 

4. The acting Assistant Secretary for Civil Rights, Suzanne Goldberg, wrote that colleges should be able to block or disinvite controversial campus speakers if the cost of security for their event, and the speaker’s message, “could reasonably be viewed as undermining the school’s capacity to fulfill its mission.” This is a heckler’s veto: If students wanted to block a speaker from campus, all they would have to do is create enough destruction and disruption to impose significant costs on the university. Do you agree with Ms. Goldberg? 

5. What would you say to any of the nearly 200 accused students who later sued their schools and won? These students had their educations disrupted and their career prospects diminished because their schools acted improperly, and it happened under the Dear Colleague letter that you defended. 

A confirmation hearing is, at its core, a job interview. The Senators who hear from Lhamon today owe it to the American public to ask the tough questions.