Civil rights lawyer beats GOP obstruction to win confirmation

The Senate has confirmed Catherine Lhamon to lead the U.S. Department of Education’s office for civil rights, one of the most prominent jobs in the federal education bureaucracy.

The Wednesday vote means that Lhamon, as assistant secretary for civil rights, will once again take charge of the office she led during the Obama administration.

Republicans wanted to stop her from serving in government to protect privileged college students who commit sexual assault with an expectation that they will get away with it. For decades, women pursuing higher education have been preyed upon without institutional protections.

The law on which the federal government’s authority is based—Title IX of the Education Amendments of 1972—says nothing about sexual harassment.

In the 1980s, federal courts held that sexual harassment constitutes a form of sex discrimination under Title VII of the Civil Rights Act, and they began to establish liability rules for employers. In the 1990s, courts applied similar rules to schools under Title IX.

The Department of Education’s Office for Civil Rights (OCR) subsequently issued a series of guidance documents building upon these judicial precedents.

In 1998 and 1999, the Supreme Court handed down two key Title IX decisions that established the context for the current debate: Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education.

The justices held that any school receiving federal money can be held liable for sexual harassment of students by their teachers or peers only if it (1) had “actual knowledge” of the misconduct and (2) responded with “deliberate indifference.”

Moreover, the misconduct in question must be “so severe, persistent, and objectively offensive that it effectively bars the victim’s access to educational opportunity.”

The Supreme Court’s interpretation of Title IX was narrower than judicial interpretations of Title VII of the Civil Rights Act and previous administrative interpretations of Title IX. Many worried that these decisions strengthened schools’ incentives to “stick their head in the sand”: They could avoid responsibility for addressing sexual misconduct by making it hard for students to report it.

OCR agreed: In January 2001, it rejected the Supreme Court’s framework. The court’s interpretation, it maintained, applied only to lawsuits for money damages, not to the conditions attached to federal funding. It imposed more demanding requirements on educational institutions, but for over a decade it made little effort to enforce its mandate.

In 2011, the Obama administration launched a concerted attack on the problem of sexual assault on college campuses. OCR issued a lengthy “dear colleague letter” spelling out the many measures schools must institute to “end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again.”

OCR followed up with more detailed guidance in 2014, hundreds of investigations of prominent colleges, and scores of legally binding resolution agreements. Underlying this effort was the contention that “one in five college women is sexually assaulted in college” as a consequence of campus culture.

Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence.”

A Brookings brief and the book, “The Transformation of Title IX,” explained that this “new paradigm” replaced the courts’ focus on identifying and punishing the perpetrators of on-campus sexual misconduct with a much broader effort to change social attitudes and to mitigate the effects of sexual assault wherever it occurs.

The Trump administration wanted to strip schools of the broad responsibility “to take effective action to prevent, eliminate, and remedy sexual harassment” with Education Secretary Betsy DeVos on May 6, 2020, releasing long-awaited Title IX rules changing the federal approach to sexual harassment. 

With the likelihood of Biden reversing those Trump era policies, Senate Republicans viewed stopping Lhamon as their best bet for preserving regulations that favor predators over survivors.

Vice President Kamala Harris broke a 50-50 tie in the Senate to seal Lhamon’s confirmation. The Senate education committee’s consideration of her nomination resulted in a tie vote, meaning that an extra procedural step had to take place before her nomination was put to the full Senate for a final vote.

President Obama appointed Lhamon to a six-year term on the U.S. Commission on Civil Rights and on December 28, 2016, members of the panel unanimously confirmed her as the chair.

Lhamon also served in the cabinet of California Governor Gavin Newsom, where she was Legal Affairs Secretary. Lhamon previously litigated civil rights cases at the National Center for Youth Law.

Lhamon previously served as the Assistant Secretary for Civil Rights at the U.S. Department of Education from August 1, 2013 until January 2017, and she was director of impact litigation at Public Counsel, the nation’s largest pro bono law firm. Before that, she practiced for a decade as assistant legal director at the ACLU of Southern California, ultimately .

Earlier in her career, Lhamon was a teaching fellow and supervising attorney in the Appellate Litigation Program at Georgetown University Law Center, after clerking for The Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.

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