Biden’s pick of Catherine Lhamon as civil rights head could mean a return to Obama-era policies

Dive Brief:

  • President Joe Biden will nominate attorney Catherine Lhamon to lead the U.S. Department of Education’s Office for Civil Rights, a post she held with the Obama administration. 

  • The office dictates federal policy concerning sexual misconduct and LGBTQ and racial discrimination in education. Lhamon is well-known for guiding the Obama administration’s approach to campus sexual assault. 

  • Biden has promised to undo the Trump-era regulation on Title IX, the federal law that bans sex discrimination on college campuses. Picking Lhamon signals a possible return to the strategy on sexual violence that Biden also helped shape as vice president.

Dive Insight:

Lhamon did not work at OCR when the Obama administration in 2011 issued guidance on how colleges should investigate and punish sexual assaults. However, she was instrumental in interpreting and enforcing it.  

This guidance did not carry the force of law but proved highly influential, drawing national attention to campus sexual violence. And schools felt threatened their federal funding would be pulled if they did not follow the Ed Department’s wishes.

The policies also drew criticism from accused students and their advocates, who thought they were unfair. This led to former Education Secretary Betsy DeVos revoking the guidance and adopting a regulation that devised a judiciary-style system for evaluating sexual violence cases and scaled back colleges’ responsibility to investigate off-campus incidents. 

Biden pledged to unravel the DeVos rule, and is making moves to do so, scheduling a five-day hearing to receive feedback on the administration’s approach to Title IX. 

Tapping Lhamon for the top job at OCR could be a sign Biden is interested in bringing back the Obama administration’s stringent approach to the federal sex discrimination law. Biden was also visible in those efforts as vice president, and as a senator he helped construct the cornerstone Violence Against Women Act.

The Obama-era guidelines were unpopular among institutions and some activist groups, however. Putting the enforcer of those policies at the head of OCR will likely make it harder to get buy-in from survivor groups and those supporting accused students, said Laura Dunn, an attorney who represents sexual assault survivors.

Additionally, the swift Title IX changes between administrations have been damaging to students, she said.

“I really hoped the administration would try to find someone that can please both sides of the aisle and try to settle the issue, so that we don’t have a political football being thrown about every couple years,” Dunn said, adding she did not want to go back to the Obama-era guidance. 

Cynthia Garrett, co-president of Families Advocating for Campus Equality, an activist organization for accused students, called Lhamon‘s expected nomination an “unfortunate development.” 

The Obama administration came under fire from these groups for using guidance rather than regulation to implement Title IX, a complaint that arose in a 2014 Senate hearing featuring Lhamon, Garrett noted in an email. Now-retired Republican Sen. Lamar Alexander, in a notorious exchange with Lhamon at the 2014 hearing, accused the department of pushing an “edict” and exceeding its authority with the guidelines.

Lhamon may face a bumpy confirmation in the Senate as many Republicans still think the department overreached with the guidance

Garrett said in an email that it’s “disheartening” Biden would choose Lhamon, especially as hundreds of lawsuits have been filed by accused students challenging the fairness of schools’ Title IX procedures.

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