Biden Signals Support For Campus Kangaroo Courts With Latest Education Department Nomination

President Joe Biden is making good on his promise to undo the due process protections restored to college students during the Trump administration by nominating someone who was instrumental in ensuring college students accused of sexual misconduct were not afforded due process rights.

Late last week, Biden nominated Catherine Lhamon to serve as Assistant Secretary of the Education Department’s Office for Civil Rights (OCR), a position she also held during the Obama administration, when schools were incentivized to find students responsible for sexual misconduct no matter the evidence or risk a federal investigation.

President Barack Obama nominated Lhamon to serve as his assistant secretary for OCR back in 2013, two years after the administration’s 2011 “Dear Colleague” letter that launched the current problems facing campus discipline today. Lhamon capitalized on that letter to threaten schools to comply with the anti-due process policies of the Obama administration. During a 2014 meeting, Lhamon reportedly told attendees that ending federal funding was not “an empty threat” and that if schools didn’t comply with the Obama administration’s regulations, they would feel the government’s wrath. She also implied she had issued such threats already.

Obama and Lhamon’s policies left hundreds of lawsuits in their wake, with accused students forced to sue their universities to receive the fairness they didn’t receive when they were still students. As I’ve documented for the past six years, these lawsuits include allegations that schools ignored evidence that could exonerate an accused student, gave accused students little to no time to review the evidence against them, didn’t even tell them the specific allegations against them until well into the investigation, and treated accusers and the accused blatantly differently.

Throughout all of this, Obama, then-Vice President Joe Biden, and Lhamon continued to insist these policies were necessary to “believe victims,” code for believing accusers without question. Despite the trail of lawsuits and documented evidence that schools were denying students basic due process rights, Lhamon claimed in February 2018 that the “OCR I led insisted on a rigidly fair process for all parties involved in sexual violence investigations. Resolution agreements demonstrate that, notwithstanding baseless claims to the contrary. Fairness to all involved is essential to justice.”

This was a laughable claim to anyone even peripherally aware of the situation on college campuses, where administrators are actually taught to believe every accusation (training insists just 2% of accusations are false, without any explanation behind the number (here’s my explainer on the 2% figure and how it doesn’t mean that 98% are true). In some cases, administrators and campus police are taught how to conduct an investigation to counter any defense, such as only taking notes during the first interview with an accuser to ensure that no inconsistencies are documented (that could be used by the defense to say the accuser is lying).

Yet, here was Lhamon, insisting she cared about fairness.

To further illustrate how little the OCR cared about the truth under Obama, The Ohio State University was able to get out of a federal investigation by firing its marching band director for allegedly not doing enough to curb the “sexualized” culture of the marching band. Prior to the band director’s firing, OSU was on a list of schools being investigated by OCR for alleged violations of the anti-gender discrimination statute known as Title IX. Once the band director was fired, OSU was removed from the list. The firing was mentioned in a press release and several documents as one of the factors leading to OSU being removed from the list.

Feminist attorney Naomi Shatz wrote back in 2014 about the way things were done during the Obama administration.

“These same administrators, who used to have an incentive to avoid finding students guilty so as to sweep allegations of assault under the rug, now have an incentive to find against the accused to ensure that the Department of Education does not open an investigation into the school and potentially revoke its funding,” Shatz wrote.

Lhamon made clear she had threatened schools to do just that by following the Obama administration’s unfair and onerous guidelines. Now that Biden has nominated Lhamon to resume her previous role at OCR, it will be open season for male college students again, though that’s not to say they have had much respite in the few years since the Trump administration told colleges to adopt due process.

Still, Biden has made clear that the previous, lawsuit-baiting ways are his preference, as he’s never met a sexual assault accusation he didn’t believe, except, of course, the one against him.