President Joe Biden’s talk about “building back better” evidently does not include respect for due process.
Consider Biden’s nomination of Catherine Lhamon to head the Office for Civil Rights at the Department of Education. Lhamon served as Assistant Secretary for Civil Rights under President Obama. She has the dubious honor of being one of the architects of the administration’s “Dear Colleague” letter advising colleges and universities on the enforcement of Title IX regulations regarding sexual harassment and sexual assault. The “Dear Colleague” letter ushered in an era of kangaroo courts and civil liberties violations for anyone accused of misconduct on campus.
As R. Shep Melnick noted in National Affairs, it wasn’t just conservatives who objected to the Obama-era Title IX interpretation. “Civil libertarians, bar associations, groups representing professors, and many legal scholars condemned the sexual-harassment guidelines for threatening both due process and freedom of speech.” And as KC Johnson found, many falsely accused students who were denied due process successfully sued their universities for violation of their rights.
The Biden Administration has vowed to undo the Trump administration’s revisions to Obama-era Title IX guidance (which followed traditional rule-making procedures). Biden and his appointees have made no pretense about the fact that they are willing to sacrifice due process in pursuit of their ideological goals.
Indeed, Title IX has long been a vehicle for such efforts. As Melnick argues, “Over the past five decades, the understanding of nondiscrimination underlying Title IX has steadily drifted away from eliminating institutional barriers to educational opportunity for women and girls, and toward the much more ambitious project of changing the way we think about sex differences, gender roles, and sexuality in general.”
During the Trump administration, when Betsy DeVos’s Department of Education released new regulations that would restore due process to students accused of sexual harassment, Lhamon tweeted that DeVos, “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.”
Asked about that tweet during her recent confirmation hearing, Lhamon doubled down, refusing to answer Senator Richard Burr’s question as to whether or not the accused should be presumed innocent or if they should see the evidence against them. Instead, she said that investigators should merely be “open to the possibility” that students are innocent.
It’s important to note that the position the Biden Administration is staking out here—a position one can assume Lhamon will pursue as head of the Office for Civil Rights since she did so in the past—is one that has repeatedly been rejected by state and federal courts.
No matter. Under Lhamon, universities and colleges can expect a return to the days when a single complaint might launch an expensive, large-scale investigation. As Melnick notes, during the Obama years and on Lhamon’s watch, “OCR turned every sexual-assault complaint lodged by an individual into a full-blown investigation of the entire institution. Assistant Secretary Catherine Lhamon explained that OCR now viewed each complaint filed by an individual as ‘an opportunity for a broader assessment of a school’s overall compliance.’”
The Biden administration’s misguided view of due process rights extends beyond Title IX enforcement. In a move that angered some Democratic senators and activists, the administration has also refused to argue that detainees at Guantanamo Bay have due process rights. As the New York Times reported, “The Biden administration pulled back on Friday from a Trump-era claim that detainees at the Guantánamo Bay wartime prison have no due process rights under the Constitution. But it stopped short of declaring that noncitizens held at the American naval base in Cuba are covered by such legal protections, according to officials familiar with the matter.”
Instead, the paper, notes, “the Justice Department took no position on the question of whether Guantánamo detainees have any due process rights.” Even the Times called the Biden administration’s reasoning on due process “muddled.”
As well, the ACLU is suing the Biden Administration for violating the due process rights of Immigration and Custom Enforcement detainees who have been transferred to other facilities, claiming they are being denied their right to an attorney. And a federal judge recently issued a preliminary injunction blocking implementation of Biden’s Executive Order that suspended oil and natural gas leases on federal land, noting that the administration had overstepped its authority by refusing to follow regulatory procedures or allow for a period of public comment.
As Jacob Sullum observes in Reason, the administration is also willing to compromise due process in the service of ideological commitments when it comes to gun control; notably, the administration’s new model “red flag” law would allow judges to issue ex parte orders confiscating gun owners’ weapons without prior notice or a hearing (and overly vague language for the standards for determining risk) if the gun owner is deemed a danger to themselves or others. As Sullum correctly notes, “Due process protections are especially important when the government contemplates taking away someone’s constitutional rights based on inherently iffy predictions about what he might otherwise do.”
As Americans were constantly reminded during the Trump years, threats to civil rights and civil liberties come from the top. The Biden administration’s reasoning about due process is no exception. It is usually liberals who complain that conservatives are trying to take the country back to the “bad old days.” But when it comes to due process rights, it’s the liberals in the Biden administration who want to return us to a time when such rights were routinely sacrificed in favor of ideological goals.