In a pleasantly surprising departure from their usual rubberstamping of Biden administration nominees, Senate Republicans earlier this week managed a party-line vote against Catherine Lhamon, Biden’s nominee for assistant secretary of the Office of Civil Rights (OCR) at the U.S. Department of Education. The 11-11 deadlock means Lhamon will not advance to the floor for a confirmation vote without intervention by Senate Democratic Leadership.
Lhamon’s fate was sealed by her actions during her previous stint as assistant secretary for Civil Rights at OCR during the Obama administration. In 2016, Lhamon disregarded established procedure and the proper role of federal agencies when she jointly issued a “Dear Colleague” letter that threatened to remove funding from schools that did not enforce gender identity ideology throughout their operations. Not only did this letter require schools to allow biological boys who self-identify as girls into restrooms and locker rooms meant for biological girls, but this letter also required schools to place biological boys who self-identify as girls in the same housing as biological girls in overnight accommodations. The letter allows schools to honor a student’s request for a single occupancy accommodation “if it so chooses.” Lhamon further trampled constitutionally protected rights by requiring schools to “treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.” The letter further noted, “The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.”
During Lhamon’s tenure, the Department of Education’s official website began publishing a “shame list” that religious schools could be placed on simply for requesting a waiver from Title IX provisions that violate their religious beliefs. Lhamon has indicated that the religious liberty of these schools should be construed as narrowly as possible while the re-definition of “sex discrimination” should be construed as broadly as possible. In a 2015 statement regarding these waivers, Lhamon acknowledged that they are legally allowed but stated that the Department of Education would “vigorously enforce Title IX’s prohibition against discrimination on the basis of sex, including gender identity, in every applicable school.”
Under Lhamon’s leadership, the OCR was weaponized against those accused of sexual assault on campus, proving her willingness to exert power over schools through Title IX compliance by fiat. This amounted to an attack on due process rights—by someone charged with enforcing civil rights. The Trump administration’s Title IX Rule offered a much-needed correction and was hailed by many as a welcome improvement.
Lhamon’s record on school discipline is also troubling, as Max Eden explained recently on Washington Watch. Eden has sounded the alarm on the ramifications of her policies in his book Why Meadow Died and this op-ed on her nomination.
In 2018, Lhamon explained her work at the OCR on the podcast SwampED this way:
[OCR’s] jurisdictional obligation is to open for investigation any case that is within its jurisdiction and to hear families’ concerns about conditions in schools, to investigate whether those concerns rise to the level of a civil rights violation and if so, work with school districts and schools themselves and colleges and universities to try to secure changes to make sure that those kinds of violations don’t persist going forward. That means that there are literally millions of students in the arms of the office of civil rights. There are about 49 million public school students in the K-12 system and close to 20 million students in 7,000 colleges and universities around the country who are subject to the protection and the enforcement of the office for civil rights.
Thankfully, whether or not the Senate will “subject” America’s students to Lhamon’s heavy hand at the OCR remains an open question. When her confirmation comes up for a vote in September, let us hope and pray they will not.