By James Moore, Spiro Pantazatos and Kursat Pekgoz
Catherine E. Lhamon is the current Assistant Secretary at the U.S. Department of Education’s Office for Civil Rights (OCR). Despite the unassuming title, her position wields enormous power.
The Assistant Secretary for Civil Rights, at her sole discretion, can cut off federal funding (and has threatened to do so) from any recipient educational institution she deems unwoke or patriarchal. Lhamon once quipped about how she enjoys carrying the “big stick of the federal government” to further her agenda.
Lhamon is best known for abusing her authority to create an illiberal ecosystem of administrative law during the Obama administration, eviscerating due-process protections for students accused of sexual harassment. The overwhelming majority of these students are male, even though men are as likely as women to report unwanted sexual contact and even though the majority of male victims of nonrape sexual assault report female perpetrators.
Lhamon’s brand of justice was selective, elusive, and vindictive. Our past research found that, between 2012 and 2019, her inquisitors were 2,400 percent more likely to side with female complainants than male complainants.
In resolution letters against Frostburg State University and Stanford University, Lhamon sought twice to eliminate the “reasonable person” standard for assessing whether a particular act constitutes sexual harassment. On another occasion, Lhamon’s bureaucrats investigated a male teacher for allegedly staring at a female student for three seconds.
Lhamon’s overreach has drawn bipartisan and professional condemnation. Formal critics include the American College of Trial Lawyers, the Foundation for Individual Rights and Expression, a former president of the American Civil Liberties Union, and the Reason Foundation.
Lhamon’s return to the Department of Education drew the ire of multiple commentators. The editorial board of The Wall Street Journal published a joint essay in 2021, condemning the rogue radical in blunt terms. In the same year, Robby Soave, writing for Reason magazine, called Lhamon “an enemy of civil liberties.”
Now that the Biden administration has put Lhamon back in power, what is she up to?
In June 2022, the Department of Education announced new Title IX guidelines that seek to revive the worst excesses of the Obama period. To the trained eye, the new rules have Lhamon’s fingerprints all over them. Specifically, Lhamon seeks to eliminate three crucial safeguards that are considered the touchstones of national and international law.
First, Lhamon wants to eliminate a rule that prohibits conflicts of interest and excessive partisanship, henceforth allowing institutions to return to the so-called single investigator model, wherein a single person (often a partisan bureaucrat) acts as police, prosecutor, judge, and executioner.
Second, Lhamon wants to curtail the time-honored principle of cross-examination, once called “the greatest legal engine ever invented for the discovery of truth.” The new guidelines abandon the requirement for live hearings where the credibility of the accuser (or the accused, for that matter) can be observed in living detail.
Third, Lhamon abandons one of the most fundamental standards of the Anglo-American criminal-justice tradition. Since 1935, in proceedings where defendants are accused of criminal conduct, the standard of evidence that triggers liability has been guilt beyond a reasonable doubt. Lhamon insists that the standard of culpability should instead be the preponderance of the evidence, i.e. “more likely than not.” This will maximize the number of male students expelled from colleges and universities, regardless of guilt and innocence.
The proposed new Title IX regulations were subjected to a great number of comments, many of them critical, and have yet to be finally adopted. There is almost no reason to hope that they will be altered to protect the rights of accused students. Indeed, the entire point of putting up new rules was to undo the changes that were made while Betsy DeVos served as Secretary of Education, changes that restored procedural fairness.
The potential consequences of Lhamon’s new rules are enormous.
For one thing, it is nearly impossible for a student to transfer from one school to another unless he or she is in good standing with the institution of origin. As a result, the innocent male students whose expulsions Lhamon is so intent on engineering will suffer grievous economic and academic harm.
Another consequence we can expect is a resumption of unnecessary litigation. Lhamon’s first tenure was marked by a flood of lawsuits from male students, who sought justice in real courts of law. According to KC Johnson’s tally, state and federal courts have issued ~250 rulings that are favorable to accused males. We will see more such lawsuits once the unfair procedures Lhamon insists upon are back in place.
Lhamon’s new rules may also make it impossible for legal activists to challenge procedures and practices that discriminate against men. The department “proposes to allow only those third parties who are participating or attempting to participate in a recipient’s education program or activity at the time of the alleged discrimination to make a complaint.”
In other words, third parties who are unaffiliated with the particular academic institution where discrimination occurs will be barred from pursuing Title IX complaints. This seemingly innocuous rule is significant and bad. There is now a booming field of civic activism against academic institutions that discriminate against men, and Lhamon’s capricious new jurisdictional limits are intended to curtail such legal challenges.
In 2018, at our behest, the Department of Education launched a precedential civil-rights investigation against the University of Southern California on the basis that various campus initiatives and scholarships provided unfair advantages to women. This was followed by an investigation against Yale University, which led to a flurry of press coverage and grassroots activism.
Our research has found that academic institutions discriminate against men in college admissions, medical services, recruitment and employment, residential spaces, scholarships, and professional organizations. Since these programs are clearly discriminatory, the Education Department has generally allowed third parties unaffiliated with these various institutions to file complaints against them. This allows specialist activists to challenge these schools on a pro bono basis.
With the adoption of Lhamon’s new jurisdictional rule, it will be extremely difficult for third parties to combat such discrimination. When implemented, this jurisdictional limit will allow Lhamon to scuttle hundreds of pending complaints alleging discrimination against men.
The mainstream press has begun to address discrimination against men and boys in earnest. Writing for Inside Higher Ed in 2019, we described efforts at reforming Title IX via litigation to improve the class rights of men. In an opinion piece published by The Washington Post in 2022, former presidential candidate Andrew Yang argued that “boys and men across all regions and ethnic groups have been failing, both absolutely and relatively, for years. This is catastrophic for our country.”
Don’t look to Catherine Lhamon to play a constructive role in solving that problem. An inveterate ideologue like her clearly won’t let notions of fairness, liberty, due process, and the presumption of innocence obstruct her campaign against fair treatment for men.
This article was reproduced by Robert Franklin at The Word of Damocles.