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In Combative Confirmation Hearing, Republicans Grill Civil Rights Nominee Lhamon on Divisive Issues from Trans Student Rights to Campus Sexual Assault

By Mark Keierleber | July 13, 2021

(Getty Images)

Updated, Aug. 4

Catherine Lhamon’s future as the Education Department’s assistant secretary for civil rights is in limbo after the Senate Health, Education, Labor and Pensions Committee reached a stalemate on her nomination. In a partisan tie on Tuesday, the committee’s 11 Democrats voted in favor of Lhamon’s nomination and the 11 Republicans voted in opposition. Senate Majority Leader Chuck Schumer could offer a motion to bring her nomination to the Senate floor for a debate and another vote. It’s unclear, however, when such a move could happen as lawmakers seek to pass a bipartisan infrastructure package before disbanding for an August recess.

From racial discrimination to transgender students in sports, some of the country’s most politically fraught education debates coalesced in a single Senate hearing Tuesday as lawmakers weighed Catherine Lhamon’s nomination to become the Education Department’s top civil rights boss.

Democratic lawmakers portrayed Lhamon, who previously served as the Education Department’s assistant secretary for civil rights during the Obama administration, as a staunch champion of students. Republicans, meanwhile, grilled her with tough questions and accused her of being an overzealous bureaucrat with a habit of exceeding her legal authority. An ongoing debate over how schools should respond to campus sexual misconduct complaints became the leading point of conflict during Lhamon’s hearing.

The Senate education committee hearing, held to consider Lhamon’s likely return to her old job, was divisive from the onset. In his opening remarks, North Carolina Sen. Richard Burr, the committee’s ranking Republican, said he’s not convinced that Lhamon “understands, or at least appreciates, the limits of her authority” and lamented that she would unravel a Trump-era regulation that bolstered the due-process rights of students accused of sexual misconduct.

Though Lhamon maintained a measured posture that leaned heavily on existing law, Burr pressed her on the due process question, including whether students should have the right to see the evidence used against them in misconduct allegations and whether she believes in the “presumption of innocence.” Ultimately, Barr argued that Lhamon’s record on holding schools accountable for students’ sexual misconduct “is deeply troubling if not outright disqualifying.”

After accusing former Education Secretary Betsy DeVos of rolling back civil rights enforcement for years, Lhamon said on Tuesday that it’s critical for the Office for Civil Rights to return “to even-handed enforcement that is consistent with the law.” In 2011, before Lhamon became assistant secretary, the Obama administration released a “Dear Colleague” letter that instructed educators to investigate sexual misconduct allegations “regardless of where the conduct occurred,” and to use a “preponderance of the evidence” standard when determining guilt. Eight months into her tenure, DeVos rescinded the guidance and replaced it with new Title IX regulations in 2020. The Biden administration has already pledged to “restore” the Obama-era guidance.

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Lhamon avoided a direct response to Burr’s questioning, arguing instead that she ultimately “won’t be in control of what change does or does not happen with respect to the Title IX regulation,” as the Biden administration’s work on that issue has already begun. But she did hold that Title IX has long failed to protect students from campus sexual misconduct, and that the Trump-era regulations weakened enforcement.

That acknowledgement came after Sen. Bill Cassidy, a Republican from Louisiana, resurfaced a Lhamon tweet from 2020 in which she argued the Trump-era regulations would move the country “back to the bad old days,” when it was “permissible to rape and sexually harass students with impunity.” In defending the tweet, Lhamon noted that the Trump-era regulations narrowed which school officials are required to respond to sexual misconduct allegations. That group includes Title IX coordinators, school officials with “authority to institute corrective measures,” and K-12 teachers in cases of student-on-student misconduct.

“Among the resolutions that I oversaw when I led the Office for Civil Rights included resolutions where, for example, at Michigan State, a student reported that she’d been sexually harassed by a counselor in the counseling office when she went for counseling about sexual harassment,” Lhamon said. “She reported it to the counseling office. Under the current regulation, there would be no responsibility for the school to investigate.”

Lhamon’s nomination hearing also highlighted another Title IX issue that’s been central to recent partisan feuds: The rights of transgender students to participate in school athletics. Under Lhamon’s lead in 2016, the Education Department released a “Dear Colleague” letter notifying schools that transgender students must be permitted to use restroom facilities that align with their gender identities. The Trump administration rescinded that guidance in 2017.

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In a series of questions, Sen. Tommy Tuberville, a Republican from Alabama, asked Lhamon whether transgender girls should be permitted to compete in women’s athletics or if such a policy discriminates against cisgender females. Tuberville, who was the head football coach at Auburn University before joining the Senate, suggested that transgender students could instead be relegated to their own athletic teams.

In response, Lhamon said that Title IX aims to ensure that nobody faces sex-based discrimination in public schools, including any student who wishes to participate in school athletics.

As Republicans probed Lhamon on her policy record, Democrats consistently rallied to support her. In defending the Obama-era guidance on transgender student rights, Sen. Chris Murphy, a Democrat from Connecticut, accused Republicans of waging a “public relations campaign” that isn’t about protecting female athletes but is rather “unfortunately about trying to marginalize these kids and make people fear them and make people see them as a threat.”

“Nothing could be, frankly, further from the truth,” he said. “These are kids who, just like all of our kids, want to participate in athletics, an experience that is central to coming of age for millions of kids all across this country. An idea that we would deny that to anyone in this nation simply because of their [gender identity], I think, is deeply unAmerican.”

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Along with the guidance on transgender students’ rights, Lhamon’s tenure with the Obama administration included a “Dear Colleague” letter from 2014 which warned schools that racial disparities in school discipline could violate federal civil rights laws. The Trump administration did away with that guidance, too, but Lhamon said on Tuesday that it’s “crucial” for the Biden administration to reinstate it. In fact, she noted that when the civil rights office was created in 1979 partly to enforce federal school desegregation orders, racially disparate school discipline rates were among the first issues that investigators confronted.

That racial disparities in school discipline persist to this day “means that we have not gotten our arms around it as a country and we are not doing enough right by our kids,” she said, adding that racial disparities are not always a form of discrimination. “I think it’s crucial to reinstate guidance on the topic and I think it’s crucial to be clear with school communities about what the civil rights obligations are and how best to do the work in their classrooms.”

Though Tuesday’s hearing centered primarily on Lhamon, lawmakers also considered the nominations of Lisa Brown as the Education Department’s general counsel and Roberto Rodriguez as its assistant secretary for planning, evaluation and policy development. Brown is currently the general counsel of Georgetown University and Rodriguez is the president and CEO of the nonprofit Teach Plus. On average, the confirmation process for political appointees takes 68 days between their nomination and a final Senate vote, according to the nonpartisan Congressional Research Service.

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