The following is a transcript of my radar from Thursday’s edition of “Rising” on Hill TV.
Campuses may be on the precipice of reverting to the chaos of kangaroo courts. President Biden nominated Catherine Lhamon to fill the same Education Department post in which she served under President Obama. She’s likely to be confirmed soon.
That means it’s likely the reformed Title IX guidance issued under Betsy DeVos will be scrapped in favor of the Obama directives. There are two troubling aspects of the policies Lhamon enforced during her previous stint, from 2013-2016. First, they were issued via Dear Colleague letters, which bureaucrats use as an excuse to legislate. Second, they were deeply unjust and caused enormous suffering.
This is not a controversial position. By the end of Obama’s second term, the effects of the department’s new guidance on Title IX as it pertained to sexual misconduct had been so disastrous on campuses, even progressive experts condemned them. Ruth Bader Ginsburg famously denounced them “for not giving the accused person a fair opportunity to be heard.”
Two years before Lhamon took the helm of Ed’s civil rights division, the department issued a “Dear Colleague” letter on Title IX. It was April of 2011. The guidance sought, nobly, to bolster the cause of women — and everyone — who suffered sexual harassment and assault on campuses, where sexual harassment and assault are very much a major problem.
The guidance issued in 2011 and enforced adamantly by Lhamon made federal funding contingent upon schools denying due process rights to accused students, denying cross-examinations, requiring a “preponderance of the evidence” standard over “clear and convincing” or “beyond a reasonable doubt,” and defining sexual violence broadly to include “rape, sexual assault, sexual battery, and sexual coercion,” but with zero definitions.
As Emily Yoffe noted in a critical three-part Atlantic series, “It also characterized sexually harassing behavior as ‘any unwelcome conduct of a sexual nature,’ including remarks.
“Schools were told to investigate any reports of possible sexual misconduct, including those that came from a third party and those in which the alleged victim refused to
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