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Are Campus Kangaroo Courts Coming Back Under Biden?


The following is a transcript of my radar from Thursday’s edition of “Rising” on Hill TV.

Campuses may be on the precipice of reverting to the chaos of kangaroo courts. President Biden nominated Catherine Lhamon to fill the same Education Department post in which she served under President Obama. She’s likely to be confirmed soon.

That means it’s likely the reformed Title IX guidance issued under Betsy DeVos will be scrapped in favor of the Obama directives. There are two troubling aspects of the policies Lhamon enforced during her previous stint, from 2013-2016. First, they were issued via Dear Colleague letters, which bureaucrats use as an excuse to legislate. Second, they were deeply unjust and caused enormous suffering.

This is not a controversial position. By the end of Obama’s second term, the effects of the department’s new guidance on Title IX as it pertained to sexual misconduct had been so disastrous on campuses, even progressive experts condemned them. Ruth Bader Ginsburg famously denounced them “for not giving the accused person a fair opportunity to be heard.”

Two years before Lhamon took the helm of Ed’s civil rights division, the department issued a “Dear Colleague” letter on Title IX. It was April of 2011. The guidance sought, nobly, to bolster the cause of women — and everyone — who suffered sexual harassment and assault on campuses, where sexual harassment and assault are very much a major problem.

The guidance issued in 2011 and enforced adamantly by Lhamon made federal funding contingent upon schools denying due process rights to accused students, denying cross-examinations, requiring a “preponderance of the evidence” standard over “clear and convincing” or “beyond a reasonable doubt,” and defining sexual violence broadly to include “rape, sexual assault, sexual battery, and sexual coercion,” but with zero definitions.

As Emily Yoffe noted in a critical three-part Atlantic series, “It also characterized sexually harassing behavior as ‘any unwelcome conduct of a sexual nature,’ including remarks.

“Schools were told to investigate any reports of possible sexual misconduct, including those that came from a third party and those in which the alleged victim refused to cooperate,” Yoffe added.

Universities were thrust into chaos, scrambling to comply, then scrambling to deal with legal challenges brought by students denied due process. In 2016, according to Buzzfeed, “the average investigation had been open for 963 days, up from an average in 2010 of 289 days,” Yoffe pointed out.

Boston College professor R. Shep Melnick and Yale Law professor Peter Schuck weighed in on Lhamon’s last stint at the department recently. Writing in RealClearEducation, they noted, “she redefined sexual harassment so broadly and with so few procedural rights for the accused that protests and lawsuits erupted from all sides of the political spectrum. She pressured schools to inflate their Title IX bureaucracies and adopt a ‘single investigator’ model in which one person appointed by the school’s Title IX office collects evidence and determines guilt or innocence — with no hearing, no cross-examination of witnesses, and limited right to appeal.”

“The ACLU,” they pointed out, “denounced these truncated procedures, and scores of defendants — often supported by prominent legal experts, feminists, and civil libertarians — persuaded federal courts to reject them.”

The guidance enforced and defended by Lhamon was so bad, fully capturing the wide spectrum of bipartisan rebuke is an overwhelming task.

The Foundation for Individual Rights in Education, like an ACLU for higher ed, put together a list back in 2018 that included critiques of the old rules and applause for the new ones published everywhere from Slate to The New Republic to CNN. Even the Washington Post Editorial Board published a defense of DeVos with the headline, “Betsy DeVos’s remarks on campus sex assault were right on target.”

Where was Lhamon? When even Betsy DeVos’s most passionate critics were begrudgingly applauding her, what was Lhamon up to?

She was on Twitter, accusing DeVos of creating rules that made it “permissible to rape and sexually harass students with impunity.”

The DeVos guidance, which unlike the Obama guidance went through the full public comment process, were pretty uncontroversial — again, even among her staunchest critics. As FIRE wrote, “These regulations added key protections to ensure a fair hearing for all parties, such as rights to a live hearing; to access all evidence in the institution’s possession, including exculpatory evidence (unless it is subject to a legal privilege); to an unbiased decision maker; and to cross-examination through an advisor.”

They did not set back the cause of sexual misconduct victims. Indeed, by ensuring a fair process in compliance with our legal norms and due process rights, they did victims a great service by restoring credibility and taking these investigations out of kangaroo courts in a parallel legal system.

In her recent Senate hearing, Lhamon stood by her outrageous rendering of the Devos-era protections as creating a climate where it’s “permissible to rape and sexually harass students with impunity.” While Lhamon said she would enforce the law if confirmed.

“So even though the law says that it gives permission to rape and sexually harass with impunity, you would enforce that law?” asked Lousiana Republican Bill Cassidy. Lhamon said yes. When questioned by Sen. Burr, she woundn’t even commit to the presumption of innocence standard.

Lhamon’s defense of her wild hyperbole, criticism of the new guidance, and highly dubious take on whether people accused of rape should be innocent until proven guilty are signs she will push the country’s schools back into the Title IX chaos that inspired immense bipartisan backlash, divided campuses, wasted precious education resources and tuition dollars, and more importantly, subjected students to grave miscarriages of justice.

If Joe Biden were subjected to the very standards his own nominee enforced and defended, the Tara Reade allegations would have rendered a guilty verdict right away back in 2020. It’s incredibly telling that he even nominated her after all the backlash.

This is not the most pressing issue in America right now. But Lhamon’s confirmation means a lot of money and time and young people’s futures hang in the balance.