President Biden’s nomination of Catherine Lhamon to head the Department of Education’s Office for Civil Rights (OCR) tests how effectively the Senate will oversee the same influential federal agency that led Lhamon during the Obama administration. Then she adopted blanket, legally dubious and widely criticized interpretations of civil rights laws on three controversial topics: sexual harassment, transgender rights and school discipline. Here, as with dozens of other “guidance documents,” she refused to participate in the public consultation mandated by the Administrative Procedure Act of 1946 (APA), a process that could have prevented the legal and political fiascoes that followed.
First, she relied on Title IX, a 1972 law that bans sexual discrimination in government-funded educational institutions, and defined sexual harassment so broadly and with so few procedural rights for the defendants that protests and lawsuits broke out from all sides of the political spectrum. She urged schools to inflate their Title IX bureaucracies and introduce a “single investigator” model, in which a person appointed by the school’s Title IX office gathers evidence and establishes guilt or innocence – with no hearing, no cross-examination of witnesses, and restriction Address rights. The ACLU condemned these abridged trials, and numerous defendants – often backed by prominent legal experts, feminists, and civic libertarians – persuaded federal courts to reject them.
Last year, the Department of Education replaced Lhamon’s sexual harassment ordinances with regulations requiring schools to hold live cross-examining hearings of witnesses and introducing a more demanding standard of evidence, broader appeals and a definition of “harassment” that better protects the First Amendment. These changes have been praised by many who despised Trump’s presidency (including us). The senators should ask Lhamon to explain which of their previous interpretations they would reinstate.
They should also request that it play a more sensible role in interpreting Title IX in general. When Senator Lamar Alexander asked in 2014 why she refused to use the APA process to publish 66 pages of “guidelines” on sexual harassment, she replied that it was simply “an explanation of what Title IX means” – and pretended to avoid any political judgment. When Alexander asked who had given her such far-reaching powers, she haughtily replied, “You did when I was confirmed.” Although her “guidance” probably lacked the power of the “law”, she still threatened schools with long ones , costly investigations, and federal funding withdrawals if they fail to comply. If this remains their position, senators should not endorse it.
A second political explosion occurred in Lhamons last year at the OCR with its “guide” on the rights of transgender students. Schools cannot deny transgender students access to education; the only question was how to assign the students to facilities such as toilets, accommodation and sports teams, which can be separated according to gender under Title IX. Should such assignments be based on biological characteristics or on the student’s choice of gender identity? Despite widespread public disagreement – which the APA process would have cleared up – Lhamon’s “Guide” flatly stated that only the gender identity chosen by the students mattered. Trump’s OCR withdrew their interpretation. Senators should decide whether Lhamon would reintroduce it, and if so, how they would require schools to assign students to gender segregated sports teams.
A third “guide” from Lhamon was on school discipline. Again, she simply informed the schools that they were violating Title IX if minority students were punished at higher rates or more severely than other groups – even when schools applied racially neutral disciplinary measures in an impartial manner! This, she said, would end the “school to prison pipeline” for minority students. Many critics, who viewed this statement as wishful thinking with no causal evidence, argued that it would also make it more difficult to maintain order in the classroom, increasing educational opportunities for the many students (including the vast majority of black and Hispanic students) who don’t misbehave, diminished. Trump’s OCR has also reversed this. The senators should ask if Lhamon would reinstate them.
Lhamon stubbornly refused to use the APA to deepen OCR’s understanding of the complex political compromises and the policies at stake on each of these issues. The unilateral issue of rules is undoubtedly easier and faster than the APA process. It took almost two years for Trump’s OCR to develop its sexual harassment regulations. Why so long? It held multiple hearings, received and analyzed over 120,000 public comments, and released a 2000-page statement of its policy decisions, which was then reviewed and upheld by four federal courts. In contrast, Lhamon’s hasty unilateralism caused their casual mistakes that may have harmed the Democrats in the 2016 election.
It is thanks to the Department that it recently held virtual hearings on a number of Title IX topics. In Lhamon’s confirmation hearings, the Senators should insist that this be extended to the full APA regulation, particularly on the hot button issues discussed above. Congress should not recklessly affirm bureaucrats who despise this basic democratic safeguard.
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