To most Americans, Catherine Lhamon is all but unknown. As the U.S. Department of Education’s Assistant Secretary for Civil Rights, however, she plays an outsized role in pursuing colleges for their purportedly incompetent handing of sexual assault cases. As the issue of campus sexual assault continues to make news, it’s important that we understand her priorities. Her record reveals a belief in the federal government’s ability to eradicated discrimination—whether real or imagined.
Dedicated to Racial Redress
After attending Yale Law School, Lhamon clerked for Judge William A. Norris of the Court of Appeals for the Ninth Circuit, one of the most liberal circuits in the nation. She subsequently became the ACLU’s assistant legal director for Southern California. It is here that the first real record of Lhamon’s jurisprudence emerges. In 2000, she scored her first major legal win as one of the lawyers on the Williams v. California case, which forced the state of California to appropriate $1 billion in new funding for poorly performing public schools. Much of Lhamon’s work with the ACLU concentrated on redressing racial grievances, and by 2008, she was named her branch’s “Racial Justice Director.”
In that same year, Lhamon served as an attorney in a suit that would become one of the most famous cases in the country, a challenge in U.S. District Court to Michigan’s constitutional ban on affirmative action in college admission decisions.This case, Cantrell v. Granholm, which featured Lhamon as an attorney of record, was later merged with another case to become Coalition to Defend Affirmative Action v. Granholm. Lhamon stayed on as counsel in this federal case, and in the Granholm complaint Lhamon and others, quoting another decision on racial preferences in Washington State, maintained that the U.S. Constitution does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” To Lhamon and the other attorneys, the state has a compelling interest in regulating the racial composition of educational institutions to help schools fulfill their mission of producing a well-rounded individual. Thus, in Lhamon’s view, admission on the basis of race is justified.
The Granholm case ultimately reached the Supreme Court as Schuette v. Coalition to Defend Affirmative Action. Both Cantrell and the Coalition to Defend Affirmative Action are listed as respondents in the case, but Lhamon, perhaps anticipating her nomination at OCR, does not appear as counsel. By the time Schuette was argued at the Court in October 2013 she had already been confirmed as Assistant Secretary at OCR in September 2013. The question at the heart of this case was whether a ban on the use of racial preferences in admissions violates the Constitution’s Equal Protection Clause. In a 6-2 decision, the Supreme Court overturned the 6th Circuit’s decision that bans on race-based admissions as enshrined in a state constitution were unconstitutional. However, the decision was not so far-reaching as to declare illegal the use of affirmative action nationwide. Hence, Lhamon’s OCR informed schools that Schuette “leaves intact the Court’s prior holdings recognizing that institutions of higher education and elementary and secondary schools may use all legally permissible methods to achieve their diversity goals.”
Using the Federal Government for “Racial Justice”
President Obama nominated Lhamon for her current position in June 2013. It’s unclear why the Obama administration, which has committed rhetorically to a race-neutral approach, would appoint such a strong proponent of racial redress. The most plausible explanation relies on a progressive theory of education that explains disparities in achievement among racial groups as predominantly the result of racial prejudice, past or present. According to Lhamon, the federal government must use its authority break down barriers, real or imagined, which inhibit the educational achievement of racial minorities.
To that end, in September 2013 Lhamon began an investigation of the Lee County, Alabama school district to see if the underrepresentation of African-Americans in the district’s AP math classes violated the 1964 Civil Rights Act’s guarantee of equal access to educational opportunities. According to OCR’s compliance review, the percentage of African-American students in such classes was disproportionately low. The investigation concluded that low black enrollment in AP courses at one particular school, Loachapoka, was the consequence of inadequate preparation in lower grades for such work. Loachapoka’s principal insisted that the low number of offerings was due to an emphasis on remediation at his school. Indeed, it doesn’t seem to make sense that a school should spend precious resources on programs with a minimal number of high achievers when a larger number of underperformers need help.
Nonetheless, the District struck an agreement with OCR to hire a consultant who would assess any inhibitors to African-American enrollment in AP classes. The consultant would also assess the criteria for black AP enrollment, and decided whether there could be an “equally effective alternative criterion that will not have an adverse impact.” In other words, AP standards for all students in Lee County could be diminished thanks to one poorly performing school. Lhamon’s quest also presumes an imbalance in racial achievement because of racism, not a complex set of social, economic, and educational factors that contribute to a student’s success.
A Zeal for Intervention
In May of this year, she appeared on the Diane Rehm Show to discuss the 60th anniversary of Brown vs. Board of Education. Lhamon expressed her discomfort with “intense re-segregation around the country,” which in fact is only the cumulative result of individuals across the nation making choices about where to live. Lhamon’s dialogue with Professor David Armor of George Mason University was particularly interesting. Armor suggested government intervention couldn’t solve the problem of “ethnic isolation” created by demographic trends, a suggestion Lhamon rebuffed:
But of course we can pursue it, we must pursue it. And the systems don’t operate in isolation. The places that are becoming mono race places are in part becoming that way because we don’t have schools that are ready for the kids, because we don’t have social systems.
In Lhamon’s worldview, society operates as an interconnected web of “systems” that generate discrimination and inequality. Moreover, she believes, the federal government can uproot such injustice provided its efforts are sufficiently vigorous. She has certainly applied this philosophy to her ongoing attempts to make campus judicial proceedings on sexual assault more favorable for accusers. As the Department of Education continues its crusade against due process for students accused of assault, however, it appears that Lhamon’s long-standing zeal for enforcing justice has generated serious injustice of its own.