Catherine Lhamon and the Coming Title IX Nightmare

On May 13, the White House announced that it would nominate Catherine Lhamon to serve as the Department of Education’s assistant secretary for civil rights. Lhamon is no stranger to the Education Department or the post, which she held from 2013 to 2017 with disastrous results. During her time in office, she promoted the “Dear Colleague Letter,” a notorious 2011 missive that required all institutions of higher education receiving U.S. federal funds to investigate allegations of “discriminatory harassment”—most notably including alleged sexual harassment—under a federal mandate purportedly contained within Title IX of the Education Amendments of 1972, but curiously unnoticed by anyone for nearly 40 years.

In a Kafkaesque distortion of Title IX’s original purpose, which was to ensure equal access to collegiate sports facilities for men and women, the nation’s colleges and universities were suddenly required to erect vast bureaucracies (Harvard University alone employs more than 50 “Title IX coordinators,” a job title commanding an average salary of $91,000 per year) to investigate and sanction alleged harassment on the unconvincing theory that it denies “equal access” to the benefits of federally funded higher education. Failure to comply can result in the loss of all federal funds.

“Don’t think it’s an idle threat,” Lhamon menaced a roomful of university administrators cowering before her at a conference at Dartmouth College in July 2014, “It’s one I’ve made four times in the 10 months I’ve been in office. So it’s one that’s very much in use.”

And use it she did. At the time of Lhamon’s infamous Dartmouth address, 67 institutions were already under investigation for failing to enforce Title IX to her department’s liking. Since that time, the number has grown to more than 500—or about one in every eight American colleges—with some investigated multiple times.

No institution has yet lost all of its federal funds, but that was never the point. Each investigation takes two to four years to complete, costs the suspect institution hundreds of thousands or even millions of dollars in administrative expenses, and invites bad press on a sensitive issue in a competitive climate where reputational harm can turn off students, alumni, donors, rankings chieftains, and the general public. As is now so common, the process itself is the punishment, with the ultimate sanction wielded to coerce mass compliance.

University administrators raced to comply, in what they almost uniformly saw as a win-win situation. While the feds got what they wanted, the administrators safeguarded millions in government funds that they increasingly lavish on themselves. Meanwhile, they got to virtue signal that they cared—in a way that they rarely had before 2011—about an issue popular among the progressives who dominate their institutions and social circles, and, best of all, they received enormous power and voyeuristic authority over the speech, behavior, and private lives of the students and employees whom they were once expected to serve. 

Lhamon could not have said it better when, despite never having worked as an educator, she declared, “This is fundamental to the educational mission.” Our colleges and universities no longer merely impart knowledge and skills, but condition compliant individuals willing to surrender their basic freedoms, civil rights, and even personal privacy as a prerequisite to white-collar employment.

Decimating Due Process

Guidances issued by Lhamon’s department—and readily embraced by self-serving administrators—abrogated a thousand years of Anglo-American jurisprudence and principles of due process and basic fairness dating back to even earlier times. Under her regime, respondents were not permitted to confront or cross-examine their accusers or to know their identities or accusations in advance. They were not allowed access to all evidence or to retain copies of investigative materials. Their guilt was to be determined without a hearing by the so-called “preponderance of the evidence” standard rather than by conclusive evidence.

Investigations were to be conducted either by diversity bureaucrats (all those Title IX coordinators along with the occasional vice president) who have nothing to do with the education of students in classrooms, or by directed panels comprised of self-selected faculty members, staff employees, and even students—all of whom suffer with psyches so fractured that they volunteered to devote large amounts of time and energy to exercising potentially life-altering power over their peers. 

None of these individuals was required to have any legal education or experience, likely because such a background would predispose them toward fairer investigative practices. Whatever training they do receive is typically undisclosed to the point that its contents—which specifically instruct them to favor all testimony from complainants—can only be obtained by court order. This secret training, which numerous courts have found to be biased when revealed, is provided in closed sessions led by unidentified “experts” referred by only one risk management company that actively promotes—and profits from—enforcing Title IX’s agenda.

Final decisions, which can result in severe consequences including expulsion or termination, were generally not subject to appeal. Investigations could be conducted even in the absence of a complaint; a raising of “concerns” or a third-party report of suspected misconduct can suffice. In some cases, simply questioning the motives and methods of Title IX itself has prompted investigations or harsher sanctions against those who dared to challenge them. The range of actions under Title IX’s authority applied both on and off of campuses, including in private homes, and even in faraway locales, such as foreign countries where study abroad programs or scientific fieldwork were conducted, even though Title IX’s language specifically limits its mandate to the geographic territory of the United States.

The results were predictable. Accusations emerged from drunken hookups, bad breakups, offhand comments, disputed grades, soured mentorships, injudicious hugs, or admonitions against classroom misconduct, often months or even years after the fact. Abusing Title IX for blackmail, revenge, intimidation, or to remove a rival are far from unknown. Enormous amounts of time and resources have been squandered in dissecting all available data of a respondent’s life to detect “corroborating evidence” in order to support a guilty finding. A veil of “confidentiality” kept all proceedings ostensibly secret, with the effect that respondents, who almost never receive any form of institutional support or in situ legal representation, are isolated from their classmates, colleagues, friends, and in some cases even their families.

Respondents are almost entirely male—leading dozens of courts to credit accusations of gender bias—but are also disproportionately minorities who often have the fewest resources to defend themselves. At an institution’s discretion, respondents can be preemptively banned from campus or suspended from study or employment pending the outcome of an investigation, punitive actions that imply guilt in the absence of any finding.

No national statistics exist, but documents published by my former university indicate that some 75 percent of respondents in its Title IX investigations are found guilty of misconduct and sanctioned—the same proportion found guilty by the Revolutionary Tribunal at the height of the Jacobin Terror during the French Revolution, which also abolished due process. Hundreds if not thousands of lives, educations, and careers have been laid waste in the absence of evidence, often for no reason other than to fulfill a horrifically unfair federal mandate enforced by Catherine Lhamon and the army of well-paid but emotionally damaged zealots whom she empowered.

The methods Lhamon’s department advocated have been widely denounced. According to one study, 91 percent of Americans oppose them. Those opposed to them included none other than Barack Obama, who appointed her, and the late Supreme Court Justice Ruth Bader Ginsburg, who built her entire career advancing gender equality.

According to Title IX for All (one of the numerous activist organizations that have formed in opposition), as of this writing, 715 federal lawsuits have been filed against colleges and universities since 2011—an average of one every five days—with most resulting in legal victories or settlements favorable to respondents alleging that they were mistreated or suffered gender-based discrimination. The settlement terms are generally undisclosed, but many are known to have exceeded $1 million in addition to legal fees, which can add up to $100,000 or more. The unsuccessful lawsuits generally only fail on questions of standing or jurisdiction rather than analysis of fact. 

Damaged Goods

Title IX litigation has even emerged as its own legal specialization, now advertised by law firms all over America. In 2018, United Educators, the leading insurer of U.S. institutions of higher education, identified Title IX claims as its clients’ costliest liability, ahead of personal injury, breach of contract, and wrongful termination.

Lhamon’s dictates have helped neither the enforcers nor those they claim to protect. Indeed, despite its sweeping powers Title IX has been curiously ineffective in ending a supposed “campus rape crisis” that, if taken seriously, would ascribe higher violent crime rates to Ivy League universities than to inner-city Detroit and cause one to wonder why well-off American parents would spend up to $70,000 a year to send their daughters into such viperous pits of iniquity. Instead, the investigative bureaucracy only ever grows and expands, finding new enemies in each freshman class at the gates.

Unsurprisingly, a 2019 article in the Chronicle of Higher Education identified the job of Title IX coordinator as a “pressure cooker” that frequently causes (or exacerbates) its occupants’ serious psychological problems, social isolation, and widespread hatred. Increasingly, they face personal legal liability, not only to lawsuits from aggrieved respondents, but also from alleged victims claiming that their complaints were insufficiently addressed.

As dispensable mid-level employees who are usually single, middle-aged, salary-dependent white women with spotty career histories and questionable qualifications, their superiors often eagerly throw them under the bus if an investigation creates controversy or provokes adverse legal action. Nearly two-thirds have been in their jobs for less than three years, and most do not long remain before stress, loneliness, or professional disaster catch up with them.

Accusers often complain of ostracism by their peers, criticism from their families, and having mere concerns elevated against their will to fully investigate complaints. While Title IX does offer at least nominal protections against retaliation, no one can compel individuals to hang out with a tattletale or the campus prude. Like many investigators, most accusers also face serious legal liability, something of which their institutions almost never inform them. Some 73 percent of Title IX lawsuits include defamation claims against accusers, who are almost always legal adults with only limited protections of anonymity. The absence of cross-examination rights generally invalidates any defense that their testimony is legally privileged against civil claims, which courts usually allow to proceed. 

Regardless of the judicial outcome, accusers are often named in the public record, where, too young to have accomplished much else, they long remain visible to potential employers, business associates, romantic partners, new friends, and others who Google their names and consider it wiser to pass them over rather than to risk engaging with someone who has previously leveled damaging misconduct allegations that may well have been false.

From #MeToo to #SoWhat

In perhaps the greatest irony, the rising number and ridiculous content of harassment allegations, and the curious circumstances in which they can emerge, have fueled an environment in which many are now routinely disregarded even when they may be true.

New York Governor Andrew Cuomo remains in office despite heavily hyped allegations from ten women. The much-accused actor Kevin Spacey is making movies again. The comedians Louis C. K. and Aziz Ansari continue to perform despite sordid accusations. Woody Allen’s “canceled” memoirs were almost immediately re-contracted and published. Blake Bailey’s seminal biography of the novelist Philip Roth found a new publisher within weeks of its cancellation following multiple rape allegations from Bailey’s former students. Joe Biden won the Democratic nomination for the presidency and sits in the White House amid multiple sexual harassment allegations. His running mate, and now Vice President Kamala Harris, publicly claimed to believe his accusers as recently as September 2019, when she was running against him, but never mentioned them again after she was selected for ticket. Thanks in no small part to Catherine Lhamon’s fanaticism, the fertile ground that nurtured good will behind #MeToo has rapidly become the salted plain of cynicism resting under #SoWhat.

There are even consequences for those personally untouched by the issue. According to one study, male university professors are now three times more likely to decline to mentor female graduate students. I have former university colleagues who no longer take elevators alone with women, still less engage in the socializing and casual interpersonal contact that have been a vital part of Western education for centuries. The risks are simply too great.

More than a few prospective academics have cited Title IX as a major turnoff to pursuing scholarly careers, which are already blighted by difficult job markets, subpar salaries, declining benefits, and other disadvantages so serious that elite students have justifiably lost nearly all interest in them. It may not be coincidental that the percentage of Americans who consider a college education vital to success fell from 70 percent in 2013 to 45 percent just seven years later, a period that overlapped with Lhamon’s aggressive enforcement of Title IX and preceded Trump Administration reforms mandated in 2020.

For the dwindling minority still drawn to academic study, whole “countercultures” have developed around institutions like Hillsdale College, which advertise their refusal to accept federal funds, and thus do not have Title IX offices, and religious institutions, which have a legal exemption that allows them to opt out of Title IX enforcement. In an alarming reversal of American higher education’s once-vaunted international competitiveness, a rising number of American students now pursue degrees at foreign universities, where education is also usually much less expensive in addition to being personally unintrusive.

After Lhamon left office, the Trump Administration moved to undo many of her edicts. As early as September 2017, a new Title IX guidance provisionally reversed some of them, requiring, for example, that respondents receive detailed written notice of accusations in advance of any proceedings, and allowing for appeals and for conclusive evidence to replace the preponderance of the evidence standard.

In August 2020, comprehensive new policies required in-person hearings, mandated cross-examination rights, granted respondents full access to evidence and investigative materials as well as legal counsel, restricted investigations to alleged on-campus incidents, and implemented other changes that gestured toward restoring due process, even if they failed to address the ugly larger issue: that American colleges and universities retain extralegal powers over speech, behavior, and private lives.

Despite, or perhaps because of, the allegations leveled against Biden during the 2020 presidential campaign, he pledged to reverse these steps toward greater fairness, which he grossly mischaracterized as an effort to “shame and silence survivors” and give “colleges a green light to ignore sexual violence and strip [alleged victims] of their rights.” By nominating Catherine Lhamon to return to her post, Biden all but guarantees that students will go back to the Obama-era horror of having virtually no rights at all.

About Paul du Quenoy

Paul du Quenoy is president of the Palm Beach Freedom Institute. He holds a Ph.D. in history from Georgetown University.

Photo: Larry French/Getty Images for Sirius XM

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