Due process under fire: Biden's nominee calls for "possibility" of innocence in Title IX cases

Editor’s note: The author of this article served as the Press Secretary at the Department of Education at the time the final Title IX rule was announced. 

The Biden administration’s nominee to lead civil rights enforcement in education says colleges should “be open to the possibility” that a student accused of sexual misconduct is innocent, marking a departure from the presumption of innocence that has historically been guaranteed to Americans under the law. 

Catherine Lhamon, who led the Office for Civil Rights under Obama from 2013-2016, would become the country’s top Title IX enforcer in education if confirmed by the Senate. The Biden administration has announced its plan to overhaul the Trump-era Title IX rule, spearheaded by then-Secretary of Education Betsy DeVos, which sought to undo the kangaroo courts of the Obama administration that denied students due process.

[RELATED: Title IX, Day One: Americans push back on Biden admin’s plan to overhaul rule]

Speaking to a Senate panel yesterday, Lhamon said that an accused student should not be presumed guilty, but they should not be presumed innocent, either:

“My view is that civil rights investigators, investigators at school need to start from the presumption that the facts are what they are and they need to find out what they are. So they shouldn’t be assuming somebody is guilty because a person has been accused...They should be open to the possibility that the person is not.”

The presumption of innocence is guaranteed by the Fifth and Fourteenth Amendments, which state that no citizen may be “deprived of life, liberty, or property, without due process of law.”

Lhamon later attempted to backtrack, saying that she “absolutely” would include the presumption of innocence in any future changes to Title IX policy. But the process she described, which does not consider a student innocent until proven guilty, would run afoul of that principle. 

[RELATED: Trump administration ‘restores due process’ with new campus sexual assault regs]

In her testimony, Lhamon claimed that the Trump rule allows students to “rape and sexually harass...with impunity,” which is false. The Trump rule requires colleges to implement a consistent process for handling Title IX complaints, to offer supportive services to survivors (such as class schedule changes and dorm reassignments), and to ensure no survivor ever has to be in the same room with the accused during a hearing. 

Follow the author of this article on Twitter: @AngelaLMorabito