From the outset of the #MeToo movement, the mere concept of justice for survivors of sexual violence has been fraught and undigestible for many. Prioritizing the protection of those who have been harmed — rather than those who perpetuate harm — is unthinkable in some spaces. Change never comes easy, and indeed, we shouldn’t be surprised to see old habits and ideas peek through as individuals and institutions adjust to a new normal.
What we have also come to expect is the beginnings of “the long con” — an age-old practice to ensure that those who hold power continue to go unchecked. The tools and tactics are almost always the same, just sharpened to fit the scenario.
In the case of #MeToo and the fight to end sexual harassment and violence, the playbook is open. Blaming the survivor? Check. Wild claims? Check — see vague statements about #MeToo going “too far” or even more hyperbole that young people will no longer know how to “date.” False, fearmongering narratives meant to distract? Check, and enter the most persistent dog whistle in response to #MeToo: The claim that if we truly support survivors, we do so at the expense of “due process.”
What is first important to know about that claim is the implication that there are any odds over wanting due process — in fact there are none. Instead, the use of the term “due process” is a misuse of the phrase. Those who are anti-justice have been weaponizing this term, and actually mean they want no process or no consequence for abusers. Or, sometimes so much "process" that the bar for ever finding someone responsible for sexual violence is impossible to meet. And as it goes with the long con, a key tactic is to personify their ludicrous narratives — to find a false, unwitting villain to their purported hero.
Case in point: Catherine Lhamon, the Biden nominee to lead the Office for Civil Rights at the Department of Education. Lhamon is by far the most qualified nominee in the Office for Civil Rights’ history. She led the same office under the Obama administration, is the former chair of the U.S Commission on Civil Rights and has long and deep expertise across each of the areas under that office’s broad mandate. She has spent a career fairly fighting for justice — even, yes, affirming that schools must protect due process rights and ensuring schools didn’t discriminate against male respondents in school Title IX proceedings.
So why is Lhamon facing accusations that she is unfit to serve? Because per the long con playbook, it’s not actually about her. It’s about creating a target for anti-survivor-justice folks, including the so-called “men’s rights activists” who, for years, have presented a false choice between supporting student survivors of sexual harassment and due process for the accused. They hoped their dizzying tall tales would be enough to spin schools in the opposite direction of their Title IX obligations to ensure students can attend school free from discrimination.
What actually happens when schools run away from accountability is devastating. We’ve represented student survivors who were disciplined with their assailants, whose complaints were ignored by their schools, and whose education ended or suffered as a result. We’ve heard over and over and over again about student survivors being punished and pushed out of school. Sexual harassment is already so underreported, and schools still need to do more to respond better. And part of doing better is indeed, a fair process.
If survivors are seeking fair treatment, fair investigations, and prevention programs, then where do the screams of unfairness come from? Largely, criticism of Lhamon has gone hand-in-hand with support for secretary of education under Trump, Betsy DeVosBetsy DeVosMcAuliffe rolls out new ad hitting back at Youngkin on education Biden DOJ tries to shield DeVos from deposition in lawsuit over student loans The long con targeting student survivors of sexual assault MORE’ rule regarding how schools investigate sexual assault cases. The rule, which narrowed the department’s definition of sexual assault and mandated live hearings with cross examinations of both the accuser and the accused, among other changes, has made it easier for sexual violence complaints to be dismissed and has been critically panned by schools, teachers, therapists, fraternity and sorority members, discipline and civil rights advocates alike.
The rule discourages students from reporting sexual violence, reduces schools’ obligations to respond to harassment and assault, and mandated a process that singled out sexual harassment complaints for uniquely burdensome and unfair procedures — not only violating Title IX, but ensuring that even fewer reports of sexual harassment will be made. If those calling for “due process” are genuine, they would also agree that students face discipline for all sorts of misconduct, and shouldn’t be subjected to a different procedure just because the nature of the complaint is sexual.
At the end of the day, the thing to remember is that the long con runs only as long as we let it. Only as long as we choose to put fear and unknowing before justice and truth. And only as long as we choose to protect those in power over those who are closest to the pain.
In the case of Lhamon and the fight for student survivors, it will be easy to fall prey to the tropes and false choices in front of us, but we must remember that in reality — we all want fairness, and we all want champions like Lhamon who will fight on our collective behalf.
Fatima Goss Graves is the president and CEO of the National Women’s Law Center (NWLC).