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Senators Grill Civil Rights Nominee on Transgender Students, Sexual Assault Investigations

By Evie Blad — July 13, 2021 6 min read
Flags decorate a space outside the office of the Education Secretary at the Education Department in Washington on Aug. 9, 2017.
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The Biden administration’s pick to head the U.S. Department of Education’s office for civil rights faced questions from a Senate committee Tuesday on some of the most sensitive and controversial issues the agency handles, including whether schools should be required to allow transgender girls to play on girls’ sports teams and how to fairly investigate students’ claims of sexual assault.

Catherine Lhamon—nominated to serve as assistant secretary for civil rights, a role she previously held in the Obama administration—was an outspoken critic of the Trump administration’s positions on those issues and a force behind several Obama-era directives that sparked national debates.

“It’s crucially important to make sure that the [Education Department’s office for civil rights] returns to evenhanded enforcement that is consistent with the law,” she told members of the Senate education committee Tuesday.

The committee considered her nomination alongside those of two others tapped to serve in the Education Department: Elizabeth Brown, who was nominated to be general counsel, and Obama veteran Roberto Rodríguez, who was nominated to be assistant secretary for planning, evaluation, and policy development.

But most of the committee’s questions focused on Lhamon.

While Democratic senators praised her experience and positions on issues like racial equity, Republican committee members pushed Lhamon on her previous criticisms of Trump-era directives and her reliance on nonbinding guidance that didn’t go through a formal public comment process when she previously held the position from 2013 to 2017.

“I am not convinced Ms. Lhamon understands, or at least appreciates, the limits of her authority,” said ranking member Sen. Richard Burr, R-N.C., who was one of several Republicans who questioned if Lhamon would seek public input before issuing regulations for schools.

In her previous time at the agency, Lhamon signed off on two key pieces of guidance: a directive that said transgender students had the right to access school facilities, like locker rooms and restrooms, that matched their gender identity; and another that said schools may be in violation of federal civil rights laws if they have significant racial disparities in discipline rates.

Both of those directives were overturned by the Trump administration, and President Joe Biden has said he will reinstate them.

The Education Department, complying with an executive order from Biden, is also undergoing a process to review its policies and practices under Title IX, the federal law that prohibits sex discrimination in education. That includes a rule issued by former Secretary of Education Betsy DeVos on obligations of K-12 schools, colleges, and universities to respond to students’ claims of sexual assault and harassment.

Enforcing transgender student rights

Several Republican senators asked Lhamon about the rights of transgender students under Title IX.

Republican state attorneys general have challenged the Biden administration’s assertion that the law’s protections prohibit discrimination on the basis of sexual orientation or gender identity.

And, even as the administration has held that transgender girls should be allowed to play on girl’s sports teams, states have considered and passed a slate of bills that would restrict them from doing so, saying students who were identified as male at birth would have an unfair physical advantage.

“I fought like heck for years for young girls, and I hate to see us ruin that,” said Sen. Tommy Tuberville, R-Alabama, who is the former football coach at Auburn University. “I get more letters on Title IX and this transgender problem than anything.”

He asked Lhamon if she agreed that putting “biological men” on women’s sports teams is discrimination.

Lhamon said Title IX should protect all students from discrimination and that civil rights investigators should examine each situation to ensure fairness.

She referred back to a complaint from an Ohio student who uses a wheelchair and complained that his school would not allow him to participate on its track team.

“We found a way for that student to compete safely and fully as a member of the team,” she said. “I would want to bring that lens to the work in any athletics context, so that we are finding a way not to discriminate against the student who wants to be on the team.”

Sen. Chris Murphy, D-Conn., said there are very few transgender students asking to be on sports teams and that the goal of Republicans’ “public relations campaign” isn’t to protect women’s sports but to “marginalize these kids, make people fear them, and make people see them as a threat.”

Ensuring fairness in Title IX investigations

If confirmed, Lhamon assured senators that—until it is replaced—she will enforce the DeVos-era regulation on sexual assault and harassment, which she has pointedly criticized.

She made that assurance after Sen. Bill Cassidy, R-La., read one of Lhamon’s tweets from May 2020 in which she said the DeVos-era regulations took the country back to a time “when it was permissible to rape and sexually harass students with impunity.”

Though she said those regulations have “weakened the intent of Title IX as Congress wrote it,” Lhamon said her responsibility would be “to enforce the law as it exists,” and that the DeVos rule is effective until it is replaced.

DeVos put the rule in place in response to concerns that previous Obama-era regulations did not do enough to provide fairness for accused students. But survivors’ advocacy groups say the new regulations do not do enough to protect complainants, and school administrators say they are cumbersome to enforce.

Promoting racial equity in school discipline

Several Democratic senators, including Murphy and Sen. Tina Smith of Minnesota, asked Lhamon about efforts to drive down disproportionately high rates of discipline for students of color.

Lhamon said it is “crucial” to reinstate guidance on the issue. The 2014 guidance she signed discouraged the use of exclusionary discipline, like suspensions and expulsions.

“We’re pushing children out of school,” Lhamon said Tuesday. “They’re losing educational time.”

She noted that racial equity in school discipline was one of the very first issues the office for civil rights addressed after its formation, when it enforced school desegregation agreements.

“That it has persisted to this day means that we have not gotten our arms around it as a country,” she said.

Republicans at the hearing asked few questions about the discipline guidance, even as state-level Republican lawmakers around the country engage in debates about the nature of racism and systemic discrimination.

DeVos rescinded the 2014 discipline guidance at the recommendation of a national school safety commission formed after a 2018 school shooting in Parkland, Fla.

Republicans had criticized the guidance as federal overreach, saying it was too prescriptive and could lead to disruptive classroom environments.

But civil rights groups called it a long-overdue step toward ensuring fair treatment of students of color and students with disabilities.

Lhamon noted Tuesday that a majority of complaints the office for civil rights handles relate to fair treatment of students with disabilities, including concerns about schools’ reliance on restraint and seclusion.

She also said it’s important for the agency to ensure a thorough and publicly accessible collection of data about issues like discipline and access to advanced courses to monitor schools’ progress in ensuring equity.

After the hearing, Chairperson Sen. Patty Murray, D-Wash., urged a swift confirmation of all three nominees.

“Unfortunately, the previous administration took major steps backwards when it came to supporting and protecting students,” Murray said.

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