In the final weeks of his administration, President Barack Obama has made several key appointments that threaten the civil rights of college students accused of crimes.
In December, Obama appointed Catherine Lhamon to a six-year term on the U.S. Commission on Civil Rights. Previously, Lhamon had co-authored a “Dear Colleague” letter for the Education Department’s Office for Civil Rights, an agency that, despite its name, has actively sought to reduce the civil rights of college men accused of sexual assault. Lhamon’s letter was instrumental in the erosion of due-process rights for accused students (at least one female student was caught up in the agency’s agenda as well).
Now another person who seemingly has been against due process rights for accused students will assume a position at OCR, although it’s not clear whether Obama made the appointment. In early January, Harvard University announced that its first Title IX coordinator, Mia Karvonides, would be leaving the university for OCR on Jan. 18 — two days before Donald Trump is inaugurated.
Karvonides had previously worked for OCR before accepting a position at Harvard. She will be returning to the agency as the enforcement director, where she will “advise top officials at OCR headquarters and work with regional directors around the country on other areas of civil rights law in addition to Title IX,” according to the Harvard Crimson, which first reported her departure. In addition to college and universities, Karvonides will also advise K-12 schools.
Karvonides’ appointment is another blow to the incoming Trump administration, which may want to rein in OCR’s overreach and restore common sense and due process on college campuses. While at Harvard, Karvonides implemented policies that resulted in 28 Harvard Law professors penning a letter in the Boston Globe saying the new approach was “stacked against the accused.”
The letter was not written by right-wing crackpots, either. Seven of the signatories were women. Alan Dershowitz, who until late last year was a self-described liberal, signed the letter. Charles Ogletree, who mentored Barack and Michelle Obama when they were at Harvard, signed the letter. Nancy Gertner, a famed feminist former judge, also signed.
Nor was this a one-off thing. Many of the professors who signed the letter have continued writing on the subject. In fact, most of the signers who still advocate for due process rights are the women.
Two of those women, Jeannie Suk and Janet Halley, have since noted that the policies that have led to an erosion of due process rights have adversely affected minorities.
“And if we have learned from the public reckoning with the racial impact of over-criminalization, mass incarceration, and law enforcement bias, we should heed our legacy of bias against black men in rape accusations,” the two wrote. “The dynamics of racially disproportionate impact affect minority men in the pattern of campus sexual-misconduct accusations, which schools, conveniently, do not track, despite all the campus-climate surveys.”
Now Karvonides will be at OCR unless the Trump administration fires her. Trump has not made statements about what he would do to reign in OCR overreach, but shortly after Karvonides was named to OCR, Politico reported that Trump’s pick for education secretary, Betsy DeVos, has been talking about doing just that.
DeVos has apparently had several phone conversations with Sen. James Lankford, R-Okla., who has criticized OCR in the past. Lankford sent a letter to Education Secretary John B. King, Jr. in January 2016, requesting statutory or regulatory justification for the department’s moves to erode due process for students accused of sexual assault and harassment.
Lankford especially took aim at the fact that the 2011 “Dear Colleague” letter, which set off the increased focus on the issue, did not go through the proper notice-and-comment period as required by the Administrative Procedure Act. Lankford said the 2011 letter required a notice-and-comment period because its contents amount to “substantive and binding regulatory policies that are effectively regulations.”
Lankford also suggested that OCR avoided notice-and-comment on this particular letter because officials knew the substance of the letter would be contested by interested policies. He noted the Harvard Law and Penn State professors who criticized the new policies, as well as the American Civil Liberties Union, which also denounced the agency’s rules.
Lankford noted in his letter to OCR that the adoption of the “preponderance of evidence” standard had no legal justification and amounted to a new regulation. When OCR responded back to Lankford, it claimed the agency was merely clarifying past guidance letters, which had gone through the proper notice-and-comment period. On the question of the preponderance standard, OCR justified its position by claiming most schools were already using it as the standard for adjudicating sexual assault.
Naturally, this did not convince Lankford, as forcing a particular standard on all schools because some schools use it is not a statutory or regulatory justification.
Politico reported that Lankford didn’t want to abolish OCR altogether, but believes the agency needs serious reform. Appointments like Karvonides won’t help the situation, as she has previously failed to adequately explain the policies adopted by Harvard.
At a town hall in March 2016, Karvonides could only explain “unwelcome conduct” through hypothetical situations, and that physical welcomeness couldn’t be assumed between partners just because someone didn’t say “no,” or wore revealing clothing or was of a particular sexual orientation. Her explanation confused Harvard students. One student, Amelia Goldberg, said Karvonides’ concept of unwelcome conduct might be confusing to undergraduates.
Karvonides again tried to clarify the school’s policy in a Frequently Asked Questions document, but the language was clearly written by a lawyer and not something undergraduates would be able to understand. Another Harvard student, Jessica Fournier, told the Harvard Crimson that the document didn’t adequately distinguish between a person being intoxicated (a state of drunkenness in which the person, according to Harvard, could consent to sexual activity) and incapacitation (a state in which the person could not consent). The document also used terms like “subjective” and “objective” to describe the welcomeness of sexual activity, which was also confusing.
Now Karvonides is back at OCR and in a position to continue foisting a confusing and ever-changing definition of consent on young college students. Any chance Trump and Lankford had to reform OCR just got even more difficult.