Nominee Faces Criticism at Confirmation Hearing

President Biden’s pick to lead the Office for Civil Rights at the Department of Education maintained her strong opinions of current Title IX regulations during her confirmation hearing Tuesday, even as Republican senators criticized her previous tenure at the department.

Catherine Lhamon, who was nominated to serve as assistant secretary for civil rights in May, said she believes the regulations surrounding Title IX of the Education Amendments of 1972 enacted by the Trump administration permit “students to rape and sexually harass with impunity.” Lhamon tweeted a similar statement last May, prompting a question about it from Senator Bill Cassidy, a Republican from Louisiana.

“I think that … the regulation has weakened the intent of Title IX that Congress wrote,” Lhamon said, adding that she was particularly concerned about the lack of responsibility for institutions to investigate reports that aren’t made to the Title IX coordinator or any other designated mandatory reporter.

Cassidy asked if she would still enforce the law as it exists despite her views on it -- Lhamon affirmed that she would, given it would be a part of her responsibility as assistant secretary. He also questioned whether she would advocate for changes to the regulations. As Lhamon told Cassidy, Senator Susan Collins, the Republican from Maine, and Senator Richard Burr, a Republican from North Carolina, in three separate exchanges, she wouldn’t be solely responsible for the outcome of regulatory changes.

“I don’t control that on my own,” Lhamon told Collins, later telling Burr, “The views I hold sitting here are not the views that I would be able to impose or not impose. There’s a regulatory process that involves lots of people that is underway at the Department of Education.”

Outside of discussions about her tweet, Lhamon’s responses to questions about her views on aspects of the Title IX regulations -- such as whether accused students are entitled to due process or if accused students should be allowed to see evidence against them before defending themselves -- were grounded in what the regulations state rather than her personal opinion.

“In the current context, the Title IX regulation that is operational now and that I would enforce if returned to the Office for Civil Rights does afford that right to students,” Lhamon said as to whether accused students can view the evidence against them, subsequently offering similar responses to other questions like it.

Republicans’ uncertainty about Lhamon’s nomination was evident from the outset of the hearing, when Burr, who is the ranking member of the Senate Health, Education, Labor and Pensions Committee, devoted much of his opening statement to his concerns about the last time Lhamon was assistant secretary for civil rights, during the Obama administration.

“Ms. Lhamon’s history is deeply troubling if not outright disqualifying,” Burr said. “I am not convinced Ms. Lhamon understands, or at least appreciates, the limits of her authority.”

Burr and Collins criticized and questioned Lhamon’s use of informal guidance -- such as Dear Colleague letters -- during the Obama administration, with Burr saying that Lhamon “has expressed a distorted view of the appropriate use of agency guidance, which, unlike regulations, do not go through a formal notice-and-comment process.”

Collins asked if she would continue to rely on informal guidance, and Lhamon responded that she was excited to be a part the regulatory process, since by the time she led OCR in 2013, the regulatory agenda for the Obama administration had already been set. Earlier in the hearing, Lhamon told Burr that although she didn’t have a formal notice-and-comment process during her tenure, the office still gathered “quite a bit of information from people with all kinds of views on the various topics.”

As for her priorities for OCR, Lhamon said she wants the office to return to enforcement that’s consistent with the law; prioritize all of its jurisdictional areas; advance enforcement of race, disability and sex discrimination in an evenhanded manner; return to comprehensive civil rights data collection; and rebuild staff capacity at the department that has been lost in recent years.

“Now, as this nation recovers from the global pandemic, and our students and educators return to schools together, the beautiful civil rights promises Congress has long made for us have particular importance,” Lhamon said during her opening statement. “OCR’s work now is as urgent as it ever has been. If confirmed, I would be so pleased to rejoin OCR’s staff as they bring their talent, expertise and dedication to do right by people who turn to them.”

The next step in the process is a vote by the Senate HELP Committee on whether to send Lhamon’s nomination to the full Senate for consideration. That vote has not yet been scheduled.

Democrats on the committee were pleased with Lhamon's previous work at OCR, with Senate HELP Committee chair Patty Murray, a Democrat from Washington, calling her "a champion for all students through her work to protect students’ civil rights, combat sexual assault and more." Despite the concerns raised by Republicans, Burr signaled at the end of the hearing that Lhamon would likely be confirmed.

“We have tried to emphasize the fact that public comment and transparency are an important part,” Burr said. “That was not necessarily the pathway you chose last time you were in the office. I hope this time, we will choose a pathway that does include public comment. If that’s what the office is doing currently before you are confirmed -- great. I look forward to you sharing those comments with us prior to any decision that you might make.”