President Joe Biden's decision to nominate controversial Obama Administration assistant secretary for civil rights Catherine Lhamon to return to her old post as de facto Title IX czar is definitely one to watch. Whether the full Senate consents to Lhamon's appointment has clear policy implications. While Lhamon's confirmation proceeds in at least some doubt, after a Senate committee deadlocked on her fitness, consider what Lhamon's nomination and probable return as Title IX czar means for students facing Title IX enforcement at the nation's colleges and universities.
First Steps Toward Renewed Enforcement
Lhamon's nomination is clearly another salvo in the Biden Administration's Title IX agenda. The Biden Administration has already taken swift action to announce and advance that Title IX agenda. That agenda is clearly to overturn the Trump/DeVos Title IX protective regulations and to restore the Obama Administration's aggressive Title IX enforcement. Rolling back Trump Administration protective regulations may take years. It took Secretary DeVos nearly all of Trump's full four-year term to promulgate those regulations. So Biden's Department of Education instead issued an extraordinary question and answer document encouraging schools to re-interpret Title IX for renewed enforcement that skirts or minimizes the still-current protective measures.
Regulatory Reforms Likely to Follow
The Biden Administration's extraordinary question-and-answer document is very likely nominee Lhamon's blueprint for coming new Title IX regulations, even if those regulations take years to promulgate. Prominent and influential higher education sources, like the Chronicle of Higher Education, read the Biden Q&A document as urging colleges and universities to renew and broaden enforcement actions against students accused of sexual misconduct. For instance, the Q&A document urges schools to:
- apply the school's own broad definition of sexual misconduct rather than the narrower Title IX definition;
- charge students with sexual misconduct for off-campus behavior;
- pursue disciplinary charges without any complainant;
- bar accused students from campus during investigation;
- finish proceedings in just sixty days or less, rushing the process.
As controversial and aggressive as nominee Lhamon has been, she may also pursue bigger reforms than those the Biden Administration urged in its end-run Q&A document. Indeed, the two DeVos measures that have most protected students falsely accused of Title IX sexual misconduct, (1) consideration only of live testimony at the hearing and (2) attorney cross-examination of those live witnesses, are surely two other measures at greatest risk of elimination under Lhamon.
What Reforms May Mean for the Accused Student
These are just a few of the reforms that students should expect to see if nominee Lhamon returns to her old Title IX czar post. All of them place falsely accused students at significantly greater risk of responsibility for sexual misconduct they did not commit. Broader sexual misconduct definitions are so vague that they potentially implicate conduct many students would not see as harmful or improper. Discipline for off-campus conduct and discipline without a complaining witness multiply the risks. Removing the accused student from campus during investigation keeps the student from gathering evidence and continuing studies. Rushing the whole process can leave an accused student unprepared to respond to false charges. And if accused students lose the right to confront and cross-examine witnesses, they will have lost essential tools of justice.
Retain a National Title IX Defense Attorney
The Biden Administration's nomination of the controversial Obama Administration Title IX czar Catherine Lhamon shows the prevailing winds that college and university students falsely accused of sexual misconduct face. Defending and defeating sexual misconduct charges on a college or university campus can be an uphill battle. Sexual misconduct is also a charge that can ruin an education and the career that would follow it.
If you face Title IX or other sexual misconduct charges, national Title IX defense attorney Joseph D. Lento and the Lento Law Firm are ready for your aggressive and effective defense. With the right representation, you can successfully defend and defeat false, unfair, or exaggerated sexual misconduct charges. Keep your school from rushing your proceeding to a false and damaging conclusion. Remember what you have at stake in your education. Call 888-535-3686 to schedule a Lento Law Firm consultation, or use the online service.