By R. Shep Melnick & Peter H. Schuck for RealClearEducation
President Biden’s nomination of Catherine Lhamon to head the Education Department’s Office for Civil Rights (OCR) tests how effectively the Senate will oversee the same influential federal agency that Lhamon led during the Obama administration.
Then, she adopted sweeping, legally dubious, widely-criticized interpretations of civil rights laws on three controversial issues: sexual harassment, transgender rights, and school discipline.
Here, as with dozens of other “guidance” documents, she refused to engage in the public consultation required by the Administrative Procedure Act of 1946 (APA), a process that might well have prevented the legal and political fiascos that followed.
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First, invoking Title IX, a 1972 law banning sex discrimination in federally-funded educational institutions, 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 denounced these truncated procedures, and scores of defendants—often supported by prominent legal experts, feminists, and civil libertarians—persuaded federal courts to reject them.
Last year, the Department of Education replaced Lhamon’s sexual harassment edicts with regulations requiring schools to hold live hearings with cross-examination of witnesses and adopt a more demanding standard of proof, broader appeals, and a definition of “harassment” that better protects First Amendment rights.
These changes have been praised by many people who despised Trump’s presidency (including us). Senators should demand that Lhamon explain which of her previous interpretations she would reinstate.
They should also demand that she adopt a more judicious role in interpreting Title IX generally.
When Senator Lamar Alexander asked in 2014 why she refused to use the APA process to promulgate 66 pages of “guidance” on sexual harassment, she replied that it was simply “an explanation of what title IX means”—pretending that it avoided any policy judgments.
When Alexander asked who gave her such extensive authority, she haughtily replied: “you did when I was confirmed.” Although her “guidance” probably lacked the force of “law,” she nonetheless threatened schools with long, costly investigations and revocation of federal funds should they fail to comply.
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If this remains her position, senators should not confirm her.
A second political explosion occurred in Lhamon’s final year at OCR with her “guidance” on transgender students’ rights.
Schools cannot deny transgender students access to educational opportunities; the sole issue was how they assign students to facilities such as bathrooms, housing, and sports teams that Title IX allows to be sex-segregated.
Should such assignments be based on biological attributes or on a student’s choice of gender identity?
Despite widespread public disagreement—which the APA process would have illuminated—Lhamon’s “guidance” flatly stated that only students’ chosen gender identity would count.
Trump’s OCR withdrew her interpretation.
Senators should determine whether Lhamon would reinstate it, and if so, how she would require schools to assign students to sex-segregated athletic teams.
A third Lhamon “guidance” concerned school discipline.
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Again, she simply informed schools that they violate Title IX if minority students are punished at higher rates or more harshly than other groups – even if schools have applied racially neutral disciplinary policies in an even-handed manner!
This, she stated, would end the “school to prison pipeline” for minority students.
Many critics, seeing this statement as wishful thinking unsupported by causal proof, argued that it would also make it even harder to maintain classroom order, reducing educational opportunities for the many students (including the vast majority of Black and Hispanic students) who do not misbehave.
Trump’s OCR rescinded this as well. The senators should ask whether Lhamon would reinstate it.
Lhamon stubbornly refused to use the APA to deepen OCR’s understanding of the complex policy trade-offs and politics at stake on each of these issues.
Issuing rules unilaterally is undoubtedly easier and faster than the APA process.
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It took Trump’s OCR nearly two years to develop its sexual harassment regulations.
Why so long?
It held multiple hearings, received and analyzed over 120,000 public comments, and published a 2000-page explanation of its policy choices that four federal courts then reviewed and upheld. In contrast, Lhamon’s hasty unilateralism caused her unforced errors, which may have hurt Democrats in the 2016 elections.
It is to the Department’s credit that it recently held virtual hearings on a number of Title IX issues.
In Lhamon’s confirmation hearings Senators should insist that this be expanded to include full APA rulemaking, especially on the hot-button issues discussed above.
Congress should not blithely confirm bureaucrats who scorn these core democratic protections.
Syndicated with permission from RealClearWire.
R. Shep Melnick is the Tip O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX. Peter H. Schuck is the Baldwin Professor Emeritus at Yale Law School and Scholar in Residence at NYU Law School.