A Senate committee on Tuesday was tied on the nomination of Catherine Lhamon, who was picked by President Joe Biden to lead the Department of Education’s Office for Civil Rights (OCR).
Following a 11–11 vote along party lines, the Senate Health, Education, Labor, and Pensions (HELP) Committee reached a deadlock on whether Lhamon should become the next assistant secretary for civil rights at the Education Department, a position she held during the Obama administration from 2013 to 2016.
Sen. Richard Burr (R-N.C.), a ranking member of the HELP Committee, explained in a press release after the vote that he opposed Lhamon’s return to her former office because of her “partisan records and extreme agendas.”
“Catherine Lhamon’s track record is also deeply troubling if not outright disqualifying,” Burr said. “Ms. Lhamon has a history of using inflammatory rhetoric, violating students’ constitutionally-based right to due process, and abusing regulatory power.”
Senator Patty Murray (D-Wash.), who chairs the HELP Committee, maintained her support for Lhamon, saying in a release that she is “highly qualified for the role” and that she will ensure students across the country are protected.
Under Lhamon’s leadership, the OCR pressured colleges and universities to adopt a “preponderance of the evidence” standard when they handled accusations of sexual harassment and assault on their campuses. Critics of that standard, notably Donald Trump’s Education Secretary Betsy DeVos, argued that it had encouraged schools to set up “kangaroo courts,” which unfairly favored the accusers and deprived accused individuals of their basic due process protections.
Lhamon also faces opposition over her promise to revive the controversial Obama-era guidance on student discipline, which was rescinded when DeVos took office. The 2014 “Dear Colleague” guidance letter essentially stated that school districts could face a federal civil rights investigation if their suspension and expulsion rates showed racial disparities. Reports suggest that it directly led to a reduction in disciplinary actions nationwide, which had caused a rise in classroom disorder and violence in major school districts such as New York City and St. Paul.
“I think it’s crucial to reinstate [the Obama-era] guidance on the topic, and I think it’s crucial to be clear with school communities about what the civil rights obligations are,” Lhamon told the Senators during her confirmation hearing last month.
The split vote means that Lhamon’s nomination will stay in the HELP Committee, unless Senate Majority Leader Chuck Schumer (D-N.Y.) or Minority Leader Mitch McConnell (R-Ky.) brings a motion to discharge the committee from further consideration of the nomination. The discharge motion may be subjected to four hours of floor debate, and needs a simple majority in the full Senate to pass.
Whether or not Lhamon’s nomination will be confirmed in the future, the position she was nominated for is becoming more important as the Biden administration seeks to revise the Trump-era rule on Title IX, the federal law prohibiting sex-based discrimination at federally-funded education programs. The Education Department has reinterpreted “sex discrimination” to include sexual orientation and gender identity, and is expected to roll back rules on how schools investigate allegations of sexual misconduct.