Category: Title IX

Men Say ‘No,’ Too: Debunking the Female-as-Victim, Male-as-Perpetrator Paradigm

By: Erin Pine

July 20, 2021

In 2011, the Obama/Biden administration conducted an overhaul of Title IX – the law prohibiting discrimination on the basis of sex on college campuses – by issuing the controversial “Dear Colleague Letter.” In theory, Title IX already addressed sexual assault. But the introduction of the Dear Colleague letter had the effect of removing key due process protections for the accused. On the heels of dozens of high-profile accusations, the Department of Education took a hard stance in order to prove that the Obama administration was cracking down on sexual assault. But did the DOE policy cause more harm than good?

The Office of Civil Rights introduced the infamous Dear Colleague letter in order to prod universities toward stricter campus policies. The letter sought to provide assurances that sexual misconduct would not be tolerated on college campuses – a valid and important concern. But while the Dear Colleague letter was well-intentioned, it can be better described as misguided. The letter’s overbroad, even threatening language imparted a fear of loss of government funding. As a result, university officials became quick to aggressively respond to any and all accusations of sexual misconduct.

Unless those accusations came from male students.

In 2014, UCLA researchers Lara Stemple and Ilan Meyer published an assessment of five federal surveys conducted by the Bureau of Justice Statistics, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation between 2010 and 2012.[1] This data was gathered as part of an investigation into the belief that men rarely, if ever, experience sexual assault.[2]

Surprisingly, the information collected by Stemple and Meyer demonstrated that the prevalence of sexual victimization in men mimics the prevalence of sexual victimization in women.[3] The 12-month data with respect to male victims is as follows:

• • Made to penetrate: 1.1%
  • Sexual coercion: 1.5%
  • Unwanted sexual contact: 2.3% [4]

With respect to female victims, the corresponding numbers are:

• • Rape: 1.1%
  • Sexual coercion: 2.0%
  • Unwanted sexual contact: 2.2%

Stemple and Meyer also identified the three most common factors that perpetuate misconceptions about male sexual victimization: reliance on traditional sex stereotypes, outdated and inconsistent definitions, and methodological sampling biases that exclude inmates.[5] Their report concluded by recommending societal changes that move beyond archaic gender assumptions, which can harm both women and men.[6]

The UCLA study is not an anomaly. A survey conducted by the Rape Abuse Incest National Network — RAINN — found that as of 1998, 2.78 million men in the U.S. had been victims of attempted or completed rape.[7] This equates to roughly one in 33 American men.[8] In 2015, the National Intimate Partner and Sexual Violence Survey produced similar numbers to that of the UCLA study. Over the 12-month period, approximately 1.6% of men experienced sexual coercion, while 2.0% of men reported unwanted sexual contact.[9]

But perhaps the most eye catching statistic: the majority of male victims (70.8%) of completed or attempted rape reported that their first experience occurred prior to age 25.[10] With college-aged students averaging between 18 and 22 years of age, it stands to reason that a majority of the sexual misconduct incidents making up that 70% occurs on college campuses. So, why is it that an accusation by a male complainant is so rarely investigated, adjudicated, or publicized?

The unfortunate truth is demonstrated by Doe v. Marymount University, a 2018 decision out of the Eastern District of Virginia.[11] John Doe presented a variety of evidence to demonstrate the university’s sex bias. Most notably, Doe alleged that in a subsequent sexual assault investigation at Marymount, a male student accused a female student of touching his genitals without his consent.[12]

Professor Lavanty, the Title IX investigator in that case as well as in Doe’s, allegedly asked the male student if he was aroused by the unwanted touching.[13] The male student responded ‘no.’ Yet Lavanty, in apparent disbelief, asked the male student again, ‘not at all?’”[14] With all inferences in favor of Doe as the non-moving party, the court concluded, “Lavanty’s decision-making was infected with impermissible gender bias, namely Lavanty’s discriminatory view that males will always enjoy sexual contact even when that contact is not consensual.”[15]

The story doesn’t end there. On June 15^th of this year, a decision was rendered in the appellate-level case, Doe v. Denver University.[16] Among the many key points highlighted in the decision, Doe presented striking statistics regarding the university’s unwillingness to investigate misconduct complaints brought by male students.[17]

Specifically, between 2016 and 2018, the University of Denver failed to launch a formal investigation into any of the 21 sexual-misconduct complaints brought by men.[18] By contrast, during that same period there were roughly 105 complaints brought by women, 14 of which were formally investigated.[19] Additionally, over the course of those two years DU received five complaints brought against female students.[20] Of those five cases, four of the complainants were male and only one was female.[21] The University failed to investigate the four male-initiated complaints against female respondents, but fully investigated the female-initiated complaint.[22]

The evidence further showed that a DU female student found guilty of non-consensual touching was given a deferred suspension, while a male student found guilty of the same offense was fully suspended.[23] In the court’s view, this was sufficient to show a pattern of implicit sex bias at the school.[24]

With similar victimization numbers between men and women, the failure of colleges to investigate male-driven accusations is proof that their hypervigilance in adjudicating sexual misconduct claims is not inspired by notions of even-handed justice. Universities are sending a message to male students that their boundaries will not be respected, and their claims will not be heard. Biased assumptions about sexual trends on college campuses harm not only the accused in these cases, but the accusers as well.

But all is not lost. Since the 2011 rollout, several public policy groups and university officials have been voicing their concerns with the sexual misconduct-related Title IX policies. And those concerns are starting to be heard. It is undebatable that sexual misconduct is a widespread problem in this country that needs to be addressed and eradicated. But the one-sided effect of the 2011 Dear Colleague Letter undermines the cause it seeks to uphold. Due process applies to both parties and should be regarded as such.

Believe male victims, too.

Citations:

[1] https://pubmed.ncbi.nlm.nih.gov/24825225/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] https://www.rainn.org/statistics/victims-sexual-violence.

[8] Id.

[9] https://www.nsvrc.org/sites/default/files/2021-04/2015data-brief508.pdf.

[10] Id.

[11] Doe v. Marymount Univ., 297 F. Supp. 3d 573, 585 (E.D. Va. 2018).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Doe v. Univ. of Denver, 1 F.4th 822, 835 (10th Cir. 2021).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

Falsely Accused Former Professor Says ‘No’ to Lhamon Nomination

By Buddy Ullman, PhD

July 18, 2021

Senator Bill Cassidy:  “So even though the law say that it gives permission to rape and sexually harass with impunity, you would enforce that law.”

Catherine Lhamon: “Yes.”

Say what!?!?!!

This exchange between United States Senator Bill Cassidy (R-LA) and Catherine Lhamon, President Biden’s nominee for Assistant Secretary for the Office for Civil Rights (OCR) in the Department of Education, highlighted the closing stages of her Senate Health, Education, Labor & Pensions (HELP) Committee confirmation hearing for the position.  The shocking exchange is neither distorted nor out of context.  In fact, Ms. Lhamon’s preceding sentence expressed the same sentiment.

Lhamon served in the same role during the Obama administration during which she distinguished herself by her ardent application of the 2011 Dear Colleague Letter and her authorship of the 2014 Guidance document, both mercifully rescinded, that stomped all over the constitutional rights of thousands of college students and faculty, triggered >700 lawsuits from aggrieved and innocent students, and has been thoroughly condemned in 133 trial court and 24 appellate court verdicts.  That President Biden appears to aspire to recreate this calamity is inexplicable.

Consistent with her response to Senator Cassidy’s question, Lhamon previously tweeted that the new Rule takes “us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”  The tweet is preposterous.

So let’s be clear, Lhamon, if confirmed, will willingly enforce the implementation of the current TIX compliance Rule, which she does not support and which she also believes promulgates rape on college campuses.  The OCR deserves a leader who can implement current policy in good conscience.  One can only imagine how Lhamon’s stance would be received by the 4,000 institutions of higher education that must adhere to TIX regulations.

Throughout the 90-minute HELP Committee hearing, Lhamon’s responses to challenging questions were cagey, disingenuous, and occasionally dishonest.  Senator Richard Burr (R-NC) asked Lhamon a series of questions about due process in campus TIX proceedings for which he requested a ‘yes’ or ‘no’ answer.  He got none.

Senator Burr separately inquired whether students accused of a TIX transgression are entitled to: (1) due process; (2) view all inculpatory evidence; (3) access exculpatory evidence that might clear them; (4) a live hearing; and (5) cross-examination, all provisions in the current Rule.   Lhamon side-stepped each question and provided answers to a different question that was not posed.

If I may be so bold, I can respond to Senator Burr’s questions.  As a former Professor at The Oregon Health & Science University (OHSU), I was subjected to Lhamon guidance personally after I was falsely accused of sexual harassment by a student who had failed my course.  I was not allowed to know the name of the complainant or the nature of the charges against me, to have witnesses, to marshal evidence on my behalf, or to defend myself in any way.  Such investigative malfeasance was commonplace under Lhamon’s archived guidance.

After I was erroneously found responsible for sexual harassment, I petitioned Lhamon’s OCR directly for relief.  Not only did Lhamon’s OCR sanction the procedures that OHSU employed in its investigation of me, but the OCR stressed in its written determination letter that it would have implemented a comparable course of action.

The answer to Senator Burr’s five questions is an emphatic ‘NO.’  Lhamon does not believe that constitutional protections such as due process should apply to TIX respondents.  If she did, her responses to Senator Burr’s questions would have been affirmative.

Senator Burr persisted.  “Of the questions that asked relative to current TIX guidelines, of those, how many do you plan to change?”  Lhamon prevaricated stating “I won’t be in control of what change does or does not happen with respect to the TIX regulation.”  The response is disingenuous.  She will absolutely be in control of any alterations to the current TIX Rule if she is confirmed.

Senator Burr also posed twice whether Lhamon supported the presumption of innocence, a requirement of the current Rule.  She again equivocated, but this time untruthfully, by asserting that the Rule lacks a presumption of innocence requisite.  It most certainly does.  Word games aside, Senator Burr returned to Lhamon’s fiction at the end of the hearing, and she still vacillated.

Again, let me answer Senator Burr’s important question.  Lhamon does not believe in the presumption of innocence, a foundation of American jurisprudence since 1895, in a TIX proceeding.  Actually, she probably doesn’t even believe that innocence is a valid defense in a TIX proceeding, something her OCR affirmed in my TIX ordeal.

My own TIX debacle is but one such an example of the presumption of guilt standard being implemented in a TIX proceeding under Lhamon’s prior OCR tenure.  Indeed, my TIX investigator didn’t even bother informing me of the sexual harassment allegations against me, which she substantiated without my input or knowledge and which, as I was to first learn ten months after my case was closed, were complete fabrications.

Lhamon’s performance at the HELP Committee hearing was disqualifying for a second round as Assistant Secretary of the OCR.  She demonstrated that she lacks commitment to key constitutional protections and judicial precedents that are hallmarks of the current TIX enforcement regulations, was equivocal and mendacious in response to Senators’ questions, and confirmed that she will enforce a policy that she believes fosters sexual assault on college campuses.

Lhamon does not merit confirmation.

Updated on August 1, 2021.

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Alyssa Reid’s Lawsuit Against JMU Reveals Catherine Lhamon’s Unfitness for High Office

WASHINGTON / July 19, 2021 – Alyssa Reid was a faculty member at James Madison University. nationally recognized debater, and a passionate advocate for helping students to find their own voices. On May 3, 2021, Reid filed a strongly worded Title IX lawsuit against JMU, alleging her basic due process rights had been violated by a Kangaroo Court-style campus proceeding (1).

The lawsuit arose from the break-up of a romantic same-sex relationship between Alyssa Reid and Kathryn Lese. In 2018, Lese lodged a Title IX complaint against Reid alleging a so-called “non-consensual relationship.” Over the ensuing months, the JMU Title IX coordinator colluded with Lese, thus depriving Reid of her due process rights. Reid was eventually found “responsible” and forced to resign from her university teaching post.

Ten weeks after Reid filed her 114-page lawsuit, the Senate HELP Committee convened a hearing on Catherine Lhamon, nominated to become the director of the Office for Civil Rights. A comparison of Reid’s allegations, shown below in italics, with the July 13 statements of Catherine Lhamon, reveals troubling contrasts (2):

REID ALLEGATION #1: JMU did not provide a written summary of its investigation to the parties. When Lhamon was questioned by the HELP Committee if she thought an accused student should have the right to see all the evidence, she would only commit to saying, “The current Title IX regulation, which is operational now, gives students that right.”

REID ALLEGATION #2: JMU prevented Reid from cross-examining Kathyrn Lese or her witnesses.  Asked if she believed an accused student should have a right to cross-examination, Lhamon side-stepped the question: “The current regulation affords, in the hearing process, a right of cross-examination,” she replied.

REID ALLEGATION #3: JMU presumed Alyssa Reid’s guilt by placing the burden of proof on Reid to prove her innocence. When asked whether she would support keeping the presumption of innocence in the current Title IX regulation, Lhamon falsely replied, “There isn’t a presumption of innocence in the existing Title IX regulation.”

Reflecting on the allegation, Reid later averred that an accusation of sexual misconduct is “fundamentally different, something that critiques the nature of who you are to your core, that sticks with you forever.” (3) If Alyssa Reid had watched the HELP Committee hearing, surely she would have been infuriated by Lhamon’s well-studied non-answers.

A generation ago, persons laughed at the story of the Queen of Hearts who haughtily declared, “Sentence first—verdict afterwards.” On July 13, Catherine Lhamon, nominated to become an Assistant Secretary for “Civil Rights,” refused to answer simple questions about whether she “believes” in due process, and denied the existence of a crown-jewel regulatory provision guaranteeing to the accused the presumption of innocence.

Citations:

1. https://nclalegal.org/wp-content/uploads/2021/05/Complaint-and-Jury-Demand.pdf
2. https://www.saveservices.org/2021/07/ocr-nominee-catherine-lhamon-repeatedly-side-steps-questions-about-campus-due-process/
3. https://nclalegal.org/alyssa-reid-v-james-madison-university-et-al/

OCR Nominee Catherine Lhamon Repeatedly Side-Steps Questions About Campus Due Process and Fairness

SAVE

July 14, 2021

On July 13, 2021, the Senate HELP Committee convened a hearing about the nomination of Catherine Lhamon to become the new director of the Office for Civil Rights. The senators asked repeated questions whether Lhamon “believes” in specific due process protections. But instead of providing an answer about her personal beliefs, Lhamon gave stock answers about what the current regulation says, such as, “The current Title IX regulation gives students that right.”

See verbatim excerpts with time indicators, below. A video of the entire hearing is available online.

See SAVE press release: Presumed Guilty: Catherine Lhamon Cannot be Entrusted with the Job of Enforcing Anti-Discrimination Rules in Colleges

++++++++++++++++++++++++

00:52:52

SEN. BURR: MS. LHAMON, I’VE GOT A SERIES OF QUESTIONS, AND THEY REALLY REQUIRE A ‘YES’ OR ‘NO’ ANSWER. DO YOU BELIEVE IN THE CONCEPT OF ‘INNOCENT UNTIL PROVEN GUILTY?’

LHAMON: I DO

00:53:03

BURR: DO YOU BELIEVE AN ACCUSED STUDENT IS ENTITLED TO DUE PROCESS IN A SCHOOL DISCIPLINARY PROCEEDING?

LHAMON: I DON’T WANT TO OVERLAWYER MY ANSWER, BUT DUE PROCESS APPLIES IN PUBLIC INSTITUTIONS, AND ‘FAIR PROCESS’ APPLIES IN PRIVATE, AND I BELIEVE THAT STUDENTS SHOULD HAVE FAIR PROCESS IN ADMINISTRATIVE PROCEEDINGS IN SCHOOLS.

00:53:25

BURR: HOW ABOUT IN PUBLIC SCHOOLS? YOU GAVE A DIFFERENT—

LHAMON: IT, YEA…— YES, I THINK THAT THE UMBRELLA APPLIES IN BOTH PLACES, AND I WANTED TO BE PRECISE ABOUT THE TERM.

00: 53:31

BURR: YOU THINK AN ACCUSED STUDENT SHOULD HAVE THE RIGHT TO SEE ALL THE EVIDENCE AGAINST THEM BEFORE THEY’RE ASKED TO DEFEND THEMSELVES AGAINST AN ALLEGATION?

LHAMON: SENATOR, YOU… YOU ASKED ABOUT A RIGHT, AND I EXPECT THAT THAT MEANS A LEGAL RIGHT. AND 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.

00:53:58

BURR: SHOULD AN ACCUSED STUDENT BE ALLOWED TO SEE EVIDENCE AGAINST THEM THAT COULD CLEAR THEM OF CHARGES?

LHAMON: LIKEWISE, SENATOR, THE CURRENT TITLE IX REGULATION, WHICH IS OPERATIONAL NOW, GIVES STUDENTS THAT RIGHT.

00:54:13

BURR: DO YOU THINK A COMPLAINANT AND AN ACCUSED STUDENT SHOULD BE ENTITLED TO A HEARING?

LHAMON: SENATOR, THE CURRENT REGULATION ENTITLES, IN A HIGHER EDUCATION INSTITUTION, STUDENTS TO A HEARING. THERE’S A DIFFERENT RULE APPLICABLE FOR K-12.

00:54:29

BURR: DO YOU BELIEVE A COMPLAINANT AND AN ACCUSED STUDENT SHOULD HAVE A RIGHT TO CROSS-EXAMINE— CROSS-EXAMINATION?

LHAMON: THE CURRENT REGULATION AFFORDS, IN THE HEARING PROCESS, A RIGHT OF CROSS-EXAMINATION, NOT, NOT STUDENT-TO-STUDENT, BUT THROUGH A REPRESENTATIVE.

00:54:46

BURR: AND OF THE QUESTIONS THAT I ASKED RELATIVE TO CURRENT TITLE IX GUIDELINES, OF THOSE, HOW MANY DO YOU PLAN TO CHANGE?

LHAMON: SENATOR, I, uh, I—I WON’T BE IN CONTROL OF WHAT CHANGE DOES OR DOES NOT HAPPEN WITH RESPECT TO THE TITLE IX REGULATION. THERE IS A PROCESS, THAT HAS BEGUN AT THE DEPARTMENT OF EDUCATION, AND THAT PROCESS WILL INVOLVE THE DEPARTMENT AND I—IF I’M PRIVILEGED TO RETURN—EVALUATING PUBLIC COMMENTS AND LISTENING TO THE EXPERTISE OF STAFF WHO ARE AT THE OFFICE FOR CIVIL RIGHTS NOW, WHO HAVE IN THE 4 ½ YEARS SINCE I LEFT, BEEN HONING THAT EXPERTISE AND APPLYING IT TO ENFORCEMENT EXPERIENCE THAT I DON’T HAVE BECAUSE I HAVE NOT BEEN THERE.

00:55:35

BURR: WHEN YOU AND I MET, YOU TOLD ME THAT YOU’VE BEEN PAINTED AS SOMEONE WHO ONLY BELIEVES VICTIMS, BUT THAT YOU DIDN’T AGREE WITH THAT.

WOULD YOU SUPPORT KEEPING A PRESUMPTION OF INNOCENCE REQUIREMENT IN THE CURRENT TITLE IX RULE—IF THE TITLE IX RULE IS CHANGED?

00:55:55

LHAMON: AND AGAIN, WITH THE, UH—I’M TRYING NOT TO OVERLAWYER—BUT THERE ISN’T A PRESUMPTION OF INNOCENCE IN THE EXISTING TITLE IX REGULATION, AND IN FACT THE TITLE IX REGULATION THAT THE TRUMP ADMINISTRATION ISSUED TOOK PAINS TO NOTE THAT CRIMINAL PROCEDURE DOES NOT APPLY IN SCHOOLS.

00:56:12

BURR: MY, MY QUESTION WAS: WOULD YOU SUPPORT KEEPING A PRESUMPTION OF INNOCENCE?

LHAMON: YEAH, SENATOR, I UNDERSTOOD THAT, BUT I—I COULDN’T KEEP SOMETHING THAT IS NOT THERE. IT IS NOT THERE NOW.

00:56:24

BURR: LAST QUESTION: MY UNDERSTANDING IS THAT DURING YOUR TIME AT OCR YOU DID NOT CONDUCT ANY NOTICE AND COMMENT RULEMAKING. IS THAT RIGHT?

LHAMON: THAT IS CORRECT, SENATOR.

00:56:39

BURR: YET DURING YOUR TIME YOU ISSUED MORE THAN 20 GUIDANCE DOCUMENTS. THESE DOCUMENTS INCLUDED EXPANDED DEFINITIONS OF SEXUAL HARASSMENT, DISCRIMINATION BASED ON SEX, PRESCRIPTIVE GRIEVANCE PROCEDURES, SCRUTINY OVER HOW SCHOOL DISCIPLINE STUDENTS—NONE OF THESE DOCUMENTS WENT THROUGH ANY NOTICE OR COMMENT PROCESS, MEANING PEOPLE HAD THE OPPORTUNITY TO COMMENT AND YOU COULD DIGEST THAT IN YOUR FINAL DECISION. AM I RIGHT?

LHAMON: SENATOR, WE DID NOT USE A NOTICE AND COMMENT PROCESS.

WE DID TAKE IN QUITE A BIT OF INFORMATION FROM PEOPLE WITH ALL KINDS OF VIEWS ON THE VARIOUS TOPICS, INCLUDING FOR EXAMPLE, ON THE SEXUAL HARASSMENT GUIDANCE. THERE WERE MORE THAN 35 LISTENING SESSIONS AT THE WHITE HOUSE, AND THERE WERE THREE YEARS OF MEETINGS WITH PEOPLE OF A WHOLE VARIETY OF INTERESTS ON THE TOPIC BEFORE THE DEPARTMENT ISSUED THAT GUIDANCE.

00:57:29

BURR: I THANK THE CHAIR

01:16:17

SEN COLLINS:

SEN COLLINS: MS LHAMON, LET ME START WITH YOU. I WANT TO FOLLOW UP ON SENATOR SMITH’S QUESTION TO YOU ABOUT SCHOOL DOSCIPLINE; DO YOU BELIEVE THAT SCHOOL DISCIPLINE …

01:16:46

SEN COLLINS: I WOULD HOPE IT WOULD GO WITHOUT SAYING—BUT I’M GOING TO SAY IT NEVERTHELESS—THAT EACH AND EVERY MEMBER OF THIS COMMITTEE IS VERY CONCERNED ABOUT SEXUAL ASSAULT ON CAMPUS—

LHAMON: YES—

01:17:00

COLLINS: —WE SHOULD HAVE A ‘NO TOLERANCE’ POLICY.

THE SIXTH CIRCUIT—ALONG WITH OTHER COURTS—HAS RULED HOWEVER, THAT IN CONDUCTING TITLE IX INVESTIGATIONS OF SEXUAL ASSAULTS, THAT PUBLIC INSTITUTIONS OF HIGHER EDUCATION MUST PROVIDE PARTIES WITH AN OPPORTUNITY TO SEE THE EVIDENCE, TO CROSS-EXAMINE, AH, BEFORE A NEUTRAL FACTFINDER.

AT YOUR INTERVIEW WITH THE HELP COMMITTEE STAFF, YOU STATED THAT YOU DID NOT BELIEVE THAT ACCUSED PEOPLE SHOULD NECESSARILY HAVE THAT RIGHT IN ALL INSTANCES, TO KNOW THE EVIDENCE BEING USED AGAINST THEM. AND IN FACT, YOUR TITLE IX GUIDANCE, THAT YOU ISSUED IN 2014, DID NOT PROVIDE FOR THE OPPORTUNITY FOR CROSS-EXAMINATION. THE TITLE IX RULE ISSUED BY— THAT’S IN EFFECT RIGHT NOW, GRANTS EQUAL RIGHTS TO BOTH THE ACCUSER AND THE ACCUSED, TO ACCESSES AND INSPECT RELEVANT EVIDENCE IN SEXUAL MISCONDUCT OR ASSAULT CASES IN SCHOOLS.

WILL YOU ENSURE, AS YOU LOOK AT THIS ISSUE, THAT THERE ARE DUE PROCESS PROTECTIONS FOR BOTH THE ACCUSER AND THE ACCUSED IN ANY TITLE IX REFORM THAT YOUR OFFICE UNDERTAKES, AND THAT IT IS IN ACCORDANCE WITH DECISIONS SUCH AS THAT ISSUED BY THE SIXTH CIRCUIT?

01:18:52

LHAMON: THANK YOU SO MUCH FOR THE QUESTION, SEN COLLINS, AND IT’S— THIS IS AN ISSUE THAT I STRUGGLE WITH, AND I THINK IT IS AN ISSUE THAT I UNDERSTAND TO BE IMPORTANT TO YOUR CONSTITUENTS AND AROUND THE COUNTRY.

I WILL SAY SEVERAL THINGS: ONE, I WILL ABSOLUTELY FOLLOW THE LAW. THE SIXTH CIRCUIT IS BINDING ON THE STATES THAT ARE WITHIN IT, AND I WOULD ABSOLUTELY ENSURE THAT IN THE ENFORCEMENT PRACTICE AT THE OFFICE FOR CIVIL RIGHTS, THAT THE OFFICE FOR CIVIL RIGHTS FOLLOWS BINDING LAW.

IN ADDITION, YOU ASKED WHAT I WOULD DO WITH RESPECT TO CHANGES IN THE REGULATION AND I DON’T CONTROL THAT, ON MY OWN. THE REGULATION THAT THE DEPARTMENT IS CONSIDERING, UH, WILL GO THROUGH A PROCESS THAT INCLUDES THE DEPARTMENT OF EDUCATION, ALL OF THE OTHER DEPARTMENTS THAT HAVE EQUITIES IN TITLE IX, THE DEPARTMENT OF JUSTICE, THE WHITE HOUSE, AND THERE WILL BE AN ULTIMATE DECISION. I’M NOT THERE, I DON’T KNOW WHAT PUBLIC COMMENT HAS BEEN—I DON’T KNOW HOW THAT PROCESS IS GOING.

I WOULD… I WOULD— IT WOULD BE VERY IMPORTANT TO ME, TO ENSURE, THAT THERE’S ABSOLUTE FEALTY TO WHAT THE LAW IS, AND THAT COLLEGES AND UNIVERSITIES, SCHOOL DISTRICTS, STUDENTS, ARE NOT SUBJECT TO COMPETING AUTHORITIES. I— I CAN PROMISE YOU THAT.

IN ADDITION, I JUST WANT TO CLARIFY THAT THE, THE 2014 GUIDANCE THAT I SIGNED, UH, DID NOT DIRECT THAT CROSS-EXAMINATION COULD NOT HAPPEN, AND IT ALSO DID DIRECT THAT IF IT HAPPENED, THAT THERE SHOULD BE PARITY AS BETWEEN ACCUSED STUDENTS AND COMPLAINANTS, AND IT STRONGLY DISCOURAGED THAT THE STUDENTS THEMSELVES PARTICIPATE IN THE CROSS-EXAMINATION, WHICH IS CONSISTENT WITH THE TITLE IX REGULATION THAT IS CURRENT NOW.

01:20:34

COLLINS: WHEN YOU WERE ASSISTANT SECRETARY, AS SENATOR BURR MENTIONED, YOU OFTEN RELIED ON INFORMAL GUIDANCE TO IMPLEMENT SIGNIFICANT POLICY REFORMS. THAT CONCERNS ME, BECAUSE I THINK THAT THE APA, THE ADMINISTRATIVE PROCEDURE ACT, IS REALLY IMPORTANT TO GET PUBLIC INPUT, AND THAT WHEN WE GET PUBLIC INPUT, WE USUALLY COME OUT WITH BETTER INFORMED REGULATIONS.

DO YOU STILL INTEND TO, IF YOU ARE CONFIRMED, TO RELY ON GUIDANCE OR ‘DEAR COLLEAGUE’ LETTERS RATHER THAN GOING THROUGH THE FORMAL PROCESS?

LHAMON: SENATOR, THE DEPARTMENT HAS BEGUN THE FORMAL PROCESS NOW, WITH RESPECT TO TITLE IX—SO …

01:21:28

COLLINS: I MEAN IN GENERAL

LHAMON: AND–AND I WILL SAY, I’M REALLY EXCITED ABOUT THE OPPORTUNITY TO PARTICPATE IN THE REGULATORY PROCESS. I DIDN’T HAVE THAT OPPORTUNITY WHEN I LED THE OFFICE FOR CIVIL RIGHTS IN 2013 THROUGH 2017. WHEN I CAME THAT TIME, THE REGULATORY AGENDA WAS LARGELY SET—I WAS THERE IN THE SECOND TERM OF THE OBAMA ADMINISTRATION—SO IT’S REALLY A THRILL TO ME TO CONTEMPLATE BEING ABLE TO PARTICIPATE IN THAT PROCESS, AND I LOOK VERY MUCH FORWARD TO IT. THAT WOULD BE VERY DIFFERENT FOR ME.

01:21:51

COLLINS: THANK YOU

01:27:30

SEN CASSIDY: THANK YOU ALL FOR OFFERING TO SERVE. REALLY APPRECIATE IT.

UH, MS LHAMON, YOU HAD MENTIONED IN YOUR RESPONSE TO SENATOR BURR ABOUT HOW YOU WOULD ENFORCE CURRENT LAW. BUT I HAVE A TWEET HERE FROM MAY 2020 IN WHICH YOU SAY “@BETSYDEVOSED PRESIDES OVER TAKING US BACK TO THE ‘BAD OLD DAYS’ THAT PREDATE MY BIRTH, WHEN IT WAS PERMISSIBLE TO RAPE AND SEXUALLY HARASS STUDENTS WITH IMPUNITY. STUDENTS DESERVE BETTER INCLUDING FAIR PROTECTIONS CONSISTENT WITH THE LAW.”

NOW THAT WAS YOUR TWEET ABOUT THE LAW THAT YOU ARE CURRENTLY SAYING THAT YOU WILL ENFORCE. UM, YOU WANT TO SQUARE THAT CIRCLE? YOU SEE WHAT I’M SAYING? IT SEEMS AS IF YOU’RE SAYING TO SENATOR BURR THAT YOU’RE GOING TO DEFEND SOMETHING WHICH YOU SAY GIVES PERMISSION TO RAPE AND SEXUALLY HARASS STUDENTS WITH IMPUNITY.

UH, WOULD YOU REALLY USE THOSE LAWS, OR DO YOU HAVE AN ISSUE WITH THE LAWS? OR WOULD — I—I DON’T —THERE SEEMS TO BE A COGNITIVE DISSONANCE HERE.

01:28:27

LHAMON: IF I AM PRIVILEGED TO BE CONFIRMED IN THIS ROLE SENATOR—THANK YOU FOR ASKING—IF I’M PRIVILEGED TO BE CONFIRMED IN THE ROLE, MY RESPONSIBILITY WOULD BE TO ENFORCE THE LAW AS IT EXISTS, AND THAT IS THE LAW

 01:28:37

CASSIDY: SO EVEN THOUGH THE LAW SAYS THAT IT GIVES PERMISSION TO RAPE AND SEXUALLY HARASS WITH IMPUNITY, YOU WOULD ENFORCE THAT LAW?

LHAMON: YES

01:28:46

CASSIDY: I PRESUME, THEREFORE YOU WOULD—JUST BEGGING THE QUESTION—THAT YOU WOULD THEN ADVOCATE TO CHANGE THE LAW AS IT CURRENTLY STANDS?

LHAMON: WELL SENATOR, THE DEPARTMENT HAS BEGUN—I’M – I’M NOT THERE—BUT THE DEPARTMENT HAS BEGUN A PROCESS TO EVALUATE THAT REGULATION AND TO DETERMINE WHETHER AND HOW IT SHOULD BE CHANGED.

01:29:03

CASSIDY: DO YOU THINK AS IF THE LAW HAS BEEN IMPLEMENTED THAT IT HAS GIVEN THE RIGHT TO RAPE AND SEXUALLY HARASS WITH IMPUNITY?

LHAMON: I THINK THE REGULATION—I THINK WHAT I SAID IN THE TWEET—THAT, SO, THE REGULATION PERMITS STUDENTS TO RAPE AND SEXUALLY HARASS WITH IMPUNITY. I, I, I THINK THAT THE LAW—THAT THE REGULATION—HAS WEAKENED THE INTENT OF TITLE IX THAT CONGRESS WROTE.

01:29:26

CASSIDY: SO, IF SOMEBODY RAPES, THEY CAN DO IT WITH IMPUNITY? I MEAN, IF A COLLEGE KID GOES OUT AND RAPES A WOMAN, HE HAS NO PENALTY WHATSOEVER UNDER THE CURRENT REGULATION?

LHAMON: IT ALLOWS A STUDENT TO RAPE WITH IMPUNITY. MAYBE I, SENATOR, I COULD GIVE AN EXAMPLE OF WHAT I HAD IN MIND THAT I WAS WORRIED ABOUT WHEN I WROTE THAT TWEET.

THE, UH, AMONG THE RESOLUTIONS THAT I OVERSAW WHEN I LED THE OFFICE FOR CIVIL RIGHTS, INCLUDED RESOLUTIONS WHERE—FOR EXAMPLE AT AT  MICHIGAN STATE—A STUDENT REPORTED THAT SHE HAD BEEN SEXUALLY HARASSED BY A COUNSELOR IN THE COUNSELING OFFICE WHEN SHE WENT FOR COUNSELING ABOUT SEXUAL HARASSMENT. SHE REPORTED IT TO THE COUNSELING OFFICE. UNDER THE CURRENT REGULATION THERE WOULD BE NO RESPONSIBILITY FOR THE SCHOOL TO INVESTIGATE.

[CROSSTALK]

01:30:12

CASSIDY: IF HE RAPED HER WOULD THERE BE? OR SHE RAPED HER, WOULD THERE BE A CONSEQUENCE UNDER CURRENT RULES? THERE CERTAINLY WOULD BE UNDER CRIMINAL LAW, RIGHT?

LHAMON: IF SOMEONE CHOSE TO PROSECUTE, THE CRIMINAL PROCESS WOULD APPLY. IF IF A STUDENT HAD BEEN RAPED AND DID NOT REPORT TO THE TITLE IX COORDINATOR, OR TO SOMEONE ELSE THAT THE SCHOOL DESIGNATED AS ABLE TO BIND THE SCHOOL, THE SCHOOL WOULD HAVE NO RESPONSIBILITY TO TAKE ACTION UNDER THE CURRENT—

01:30:40

CASSIDY: .. PRESUMABLY, THE D.A. WOULD?

LHAMON: THE D.A. WOULD HAVE AN OPTION—TO CHOOSE WHETHER TO PROSECUTE.

01:30:44

CASSIDY: [TRANSGENER DISCUSSION- HE’S A DOCTOR]

>>>>

01:44:18

SEN BURR: JUST A COUPLE OF FOLLOW UP QUESTIONS IF I CAN.

2020. LHAMON, THE CIRCUIT COURT DECISIONS THAT HAVE BEEN REFERENCED TO, THIRD AND SIXTH, RESPECTIVELY, WERE DETERMINED IN 2018 AND 2020. WERE THOSE DECISIONS IN PLACE WHEN YOU WERE AT OCR BEFORE, WOULD THAT HAVE LIMITED WHAT YOU WOULD HAVE BEEN ABLE TO PROPOSE ON TITLE IX IN YOUR ESTIMATION?

LHAMON: SENATOR, HAD THOSE DECISIONS BEEN IN PLACE, THE OFFICE FOR CIVIL RIGHTS ABSOLUTELY WOULD HAVE FOLLOWED THEM IN THE JURISDICTIONS WHERE THEY ARE CONTROLLING.

01:44:50

BURR: THANK YOU FOR THAT. EARLIER, YOU SAID THAT THE CURRENT TITLE IX REGULATION DIDN’T INCLUDE A PRESUMPTION OF INNOCENCE STANDARD. AND IN FACT, IN SECTION 106.45 THE REGULATION SAYS THIS: “INCLUDE A PRESUMPTION THAT THE RESPONDENT IS NOT RESPONSIBLE FOR THE ALLEGED CONDUCT UNTIL A DETERMINATION REGARDING RESPONSIBILITY HAS BEEN MADE AT THE CONCLUSION OF THE GRIEVANCE PROCESS.”

SO, YOU GAVE ME A CRAFTY ANSWER, SO LET’S, LET ME ASK AGAIN: THE CURRENT REGULATION REQUIRES A PRESUMPTION THAT THE RESPONDENT IS NOT RESPONSIBLE UNTIL PROVEN OTHERWISE, WHICH WE COMMONLY CALL PRESUMPTION OF INNOCENCE.

MY QUESTION IS NOT ABOUT THE CURRENT REGULATION, BUT WHAT YOU THINK SHOULD BE THE STANDARD. SHOULD THE STANDARD BE PRESUMPTION THAT THE RESPONDENT IS NOT RESPONSIBLE UNTIL PROVEN OTHERWISE?

LHAMON: SENATOR, IF IF I MAY, I DID NOT MEAN TO OVERLAWYER YOU ON THAT ANSWER, AND I APPRECIATE THE CHANCE TO COME BACK TO IT. I, UH, I—MAYBE BECAUSE I AM A LAWYER, I AM SO FOCUSED ON A CRIMINAL PROCESS THAT IS DIFFERENT FROM AN ADMINISTRATIVE PROCESS IN SCHOOL, AND I, I – I WILL ENFORCE THE STANDARD THAT EXISTS.

AND TO YOUR QUESTION ABOUT WHAT SHOULD OR SHOULDN’T BE THERE, I WANT TO SAY THAT, YOU KNOW, 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, NOT ONLY ME—THAT – NOT ME AT ALL AT THE MOMENT—THAT IS UNDERWAY AT THE DEPARTMENT OF EDUCATION.

BUT, BUT MY, MY VIEW IS THAT CIVIL RIGHTS INVESTIGATORS, INVESTIGATORS AT SCHOOLS, NEED TO START FROM THE PRESUMPTION THAT THE FACTS ARE WHAT THEY ARE, AND YOU NEED TO FIND OUT WHAT THEY ARE. SO YOU, THEY-THEY SHOULDN’T BE ASSUMING SOMEBODY IS GUILTY JUST BECAUSE THE PERSON BEEN ACCUSED— ‘GUILT’ IS NOT EVEN THE RIGHT WORD, SO NOW I’VE WALKED INTO THE CRIMINAL PROCESS—THEY SHOULDN’T BE ASSUMING THAT SOMEONE IS RESPONSIBLE BECAUSE A PERSON HAS BEEN ACCUSED, THEY SHOULD BE OPEN TO THE POSSIBILITY THAT THE PERSON IS NOT. AND I – I ABSOLUTELY SUPPORT THAT AND I THINK THAT IS IMPORTANT IN AN INVESTIGATIVE PROCESS.

01:47:00

BURR: I’M APPRECIATIVE. THAT CLEARS SOME THINGS UP.

IT-IT DOESN’T GONE UNNOTICED THAT YOU HAVE REPEATEDLY ANSWERED ON THIS SIDE OF THE AISLE [POINTING TO HIS RIGHT] THAT YOU’RE REALLY NOT IN CONTROL. THAT THERE’S A PROCESS.

BUT WHEN YOU ANSWERED OVER THERE [POINTING TO HIS LEFT] YOUR ANSWER WAS YOU ACCEPT THAT YOU WILL HAVE AUTHORITY AND RESPONSIBILITY FOR POLICY AND RECOMMENDATIONS MADE BY YOUR OFFICE. CAN’T BE BOTH WAYS. I- AND, IT’S NOT A QUESTION, UM, I JUST WANT TO POINT IT OUT, BECAUSE I THINK  IT’S GOOD TO REFLECT ON WHAT YOU’VE SAID, AND TO WHOM YOU’VE SAID IT.

I THINK THAT WE HAVE TRIED TO EMPHASIZE THE FACT THAT PUBLIC COMMENT, TRANSPARENCY, INPUT, COMMENTS, ARE AN IMPORTANT PART, AND 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.

I THANK THE CHAIR.

01:48:20

LHAMON: THANK YOU, SENATOR MURRAY AND SENATOR BURR, FIRST I APPRECIATE YOUR CONFIDENCE I WILL BE CONFIRMED, SO THANK YOU FOR THAT.

AND, I-I UM, I DID NOT MEAN TO COMMUNICATE A  ANSWER TO ONE SIDE OF THE AISLE THAN TO THE OTHER. I SAID IN MY OPENING THAT I BELIEVE CIVIL RIGHTS ARE BIPARTISAN – I BELIEVE THAT THEY ARE – AND I WOULD BE EVEN-HANDED IN THE WAYS THAT I WORK WITH MEMBERS OF CONGRESS, AND I WOULD BE EVEN-HANDED IN THE WAYS THAT I WOULD BE ENFORCING THE LAW, IF I WERE CONFIRMED TO THE OFFICE.