Barack Obama allowed the one-minute window between outgoing and incoming sessions of Congress to sneak Merrick Garland through as a recess appointment yesterday, but don’t think for a minute he hasn’t been busy undermining his successor in other ways.
On Dec. 15, with just two months left in his term, Obama made several appointments to key administration posts, including two individuals to the U.S. Commission on Civil Rights. Both appointments are for a six-year term, and both will create challenges for Donald Trump if he wants to fix some civil rights problems in this country.
Obama appointed the Education Department’s assistant secretary for civil rights, Catherine Lhamon, and defense attorney Debo Adegbile to be commissioners on the Civil Rights commission. Most of the media have ignored the appointments, the Left has praised them, and right-leaning outlets have focused heavily or exclusively on Adegbile. While Adegbile certainly has his share of problems, I can say that at the very least the man likely believes in due process.
The same cannot be said of Lhamon, who has been instrumental in eroding due process protections on college campuses. Lhamon co-authored the infamous 2011 “Dear Colleague” letter from the Education Department’s Office for Civil Rights, which severely limited accused students’ due process rights when suspected of sexual assault or harassment. This letter is not legally binding, but it effectively carries the force of law because if schools don’t comply, they face being named publicly as under investigation for not creating safe environments for students and risk losing federal funding if they refuse to change their policies. (Other departments’ investigations are not so public, and no school has dared risk a loss of funding).
The letter didn’t offer much in the way of due process rights for students, other than a footnote referring to previous guidance on the topic. It did, however, restrict rights for accused students by lowering the burden of proof needed to brand a student a rapist and punish him for sexual assault. The burden of proof changed from “clear and convincing” to a “preponderance of evidence,” a standard that simply means more likely than not.
The letter also strongly discouraged schools from allowing students to cross-examine each other and witnesses because “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
This guidance presupposed the guilt of all accused students, and left no room for the possibility that an accused student might be able to prove his or her innocence by cross-examining the accuser.
Lhamon has been unrepentant in her quest to expand Title IX on college campuses, and her actions have led to hundreds of investigations into whether schools have violated the anti-sex discrimination statute. (These schools are always found to have violated it in some way, and there are more than a hundred lawsuits against schools from accused students who say their rights were violated.)
Lhamon will be on the commission for six years, potentially outlasting Trump’s presidency. If Trump tries to undo the damage done by the “Dear Colleague” letter and give accused students rights, Lhamon’s presence on the commission could really cause a challenge. Of course, Trump could always ignore the commission’s objections, as they have no power to change law. Still, the media will eat up any opposition the commission puts out, and since Title IX isn’t exactly on Trump’s list of things to fix (as far as we know), he may just choose to ignore it and save the headache.
Defense attorney Debo Adegbile presents his own unique challenges to Trump. Adegbile defended convicted cop-killer Mumia Abu-Jamal and was denied an appointment to the Justice Department when Obama nominated him in 2014. The rejection of Adegbile had bipartisan support, with seven Democrats joining Republicans to block his nomination. Adegbile doesn’t need confirmation for the Civil Rights Commission, and his appointment has drawn the ire of the Fraternal Order of Police’s Philadelphia chapter.
Abu-Jamal was convicted of murdering Philadelphia cop Daniel Faulkner, and Adegbile’s appointment was called a “kick in the teeth to the cops” by the police union’s president, John McNesby. The appointment was also opposed by the International Union of Police Associations. Sam Cabral, the IUPA’s president, said Obama’s appointment of Adegbile demonstrated “his utter distain for our nation’s law enforcement officers.”
These are the two people Trump will now have to deal with on the Civil Rights commission throughout his first term.
Cross-posted from Watchdog.org/Ashe Schow