EDITORIAL: Jacques: Due process under threat on campus, thanks to Biden administration

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Jul. 22—Students on college campuses beware: Your basic constitutional rights aren't safe for long if Biden administration officials get their way.

As President Joe Biden promised during his campaign, he wants to reverse the excellent new rules governing sexual assault investigations at universities.

Former Education Secretary Betsy DeVos took years to revamp the Title IX guidelines schools follow when reports of misconduct are filed, returning fairness to the campus hearings. Title IX is the law banning sex discrimination at schools receiving federal money, but its reach has greatly broadened in recent years.

And DeVos made changes the right way, going through the formal administrative rule-making process. So these rules carry the force of law, but don't expect that to have much sway on Biden's Education Department.

That became clear last week during the Senate confirmation hearing for Catherine Lhamon, the nominee to take the post of civil rights chief within the Education Department — a job she held during former President Barack Obama's second term. She refused to say she'd uphold due process or the presumption of innocence in campus courts.

The Senate education committee was scheduled to vote on her nomination Wednesday, and now the full chamber will consider her appointment. Moderate Democrats should take a close look at what Lhamon seeks to do.

Nate Bailey, former chief of staff for the Department of Education under DeVos, calls Biden's choice of Lhamon "unconscionable," given her record in the role. Lhamon helped to expand and enforce the Obama-era mandates that led universities to strip due process from these investigations. The civil rights office did this through a 2011 "Dear Colleague" letter and a 2014 Q&A follow up that carried the threat of withheld federal funds if schools didn't comply.

"This is the third Obama term," Bailey says. "She [Lhamon] hasn't changed her world view on these topics at all."

That's alarming, considering the real-life implications for students accused of wrongdoing. During the Obama years, many students got kicked off campus after being accused of sexual misconduct, despite not being given a fair chance to defend themselves. This led to dozens of lawsuits against universities, and the courts have stood up for the due process rights of students.

Several cases stemming from the University of Michigan concluded with federal courts chiding university administrators for not implementing basic protections like the right to cross-examination.

These safeguards are at the heart of DeVos' Title IX rules.

Yet when this framework was finalized last year, Lhamon had this to say on Twitter: ".@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."

Republicans on the Senate committee grilled Lhamon on these comments and others, and she doubled down on them.

In March, Biden via executive order tasked the Education Department with "reviewing" the current Title IX rules, and to propose alterations. In a recently issued Q&A about the rules, it's apparent the department is keen on helping universities skirt the regulations.

And expect the Education Department to go through a similar formal rule-making process to overturn DeVos' rules — which thankfully could take a few years.

Inez Stepman, a senior policy analyst at the Independent Women's Forum, said in an interview earlier this year that even if Biden education officials overlook the rules now in place, students can take advantage of them.

"It will be additional ammunition for students suing for lack of due process," she said.

As former assistant secretary for civil rights, Lhamon also instructed K-12 schools to allow transgender students to use the bathrooms and locker rooms of their choice, a policy the Trump administration overturned. This is something Biden has already reinstated, and she would certainly enforce it if confirmed.

Most concerning, however, are Lhamon's plans to remove due process from campus investigations.

Regardless of your political party, that should worry you.

ijacques@detroitnews.com

Twitter: @Ingrid_Jacques

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