By Gwyneth K. Shaw
“Berkeley Law Voices Carry,” hosted by Gwyneth Shaw, is a podcast about how the school’s faculty, students, and staff are making an impact — in California, across the country, and around the world — through pathbreaking scholarship, hands-on legal training, and advocacy.
This episode features Catherine E. Lhamon, the inaugural executive director of UC Berkeley Law’s Edley Center on Law & Democracy. Established in fall 2024 to honor Christopher Edley Jr., the law school’s dean from 2004 to 2013 and a lifetime public servant, the center aims to defend and strengthen democratic institutions in the United States through actionable research and public leadership.
Lhamon is a renowned public service lawyer: She chaired the United States Commission on Civil Rights from 2016 to 2021; was the chief civil rights enforcer in the nation’s schools for Presidents Joe Biden and Barack Obama; served as legal affairs secretary in California Gov. Gavin Newsom’s cabinet for two years; and was a civil rights litigator at the ACLU Foundation of Southern California, the National Center for Youth Law, and Public Counsel, America’s largest pro bono law firm.
What follows is an edited version of the conversation. Listen to the full episode below and visit the “Voices Carry” archive for all episodes.
GWYNETH SHAW: Let’s start off with more about the Edley Center. Why have a center like this, and why is it fitting to name it after Chris Edley?
CATHERINE LHAMON: Dean Edley was a giant in law and was a giant in using law for the public good. And so naming a center on law and democracy at this law school for him seems like exactly the right way to frame the work of the center.
Why have a center — now, and at this law school? Well, certainly the times merit it, and no one knew that at the time that the center was created a year ago just immediately following Dean Edley’s death.
But the story of our democracy is that we fight for it. We’ve always had to fight for it. So it is perennially necessary to have a location for thinking, a location for working in service of democracy.
And the law school is an ideal place for that, because lawyers have a professional ethics responsibility to uphold the law, and they also are trained in law school to know what the law is. So this coalescence now, of immediate need in this country for crucial work to shore up and support democracy and the reality that we always have to fight to make sure that our democratic principles or our lived experience, bring us together to this moment.
GWYNETH SHAW: Where are the boundaries at this point in the fight to protect democracy, if there are any?
CATHERINE LHAMON: At this point, the Trump administration has taken an “everything, everywhere, all at once” approach to tearing down the core foundations of our democracy. And in these first months of the Trump administration, it’s been an actual assault.
So there are no boundaries now. We really have to be prepared, always, to uphold every facet of democracy, because they are all under attack now. That’s more naked, it’s more visible now than it has been at other times in our history. But the reality is, as I said, that we have to fight for it. We have to work to imagine our freedom, to secure our freedom, and to make sure that our democratic ideals are the lived experience for all Americans.
GWYNETH SHAW: What can law schools, law students, and lawyers do to protect democracy and our freedoms, and what makes them well positioned to do it?
CATHERINE LHAMON: The quintessence of law school is training in how to use legal principles, what the legal principles are. So, what are the canons? What are the basic guardrails that we know exist? And then how do we argue? How do we protect them? How do we use them? How do we stretch the law and use it to its greatest extent?
So a law school is the right place for it. And maybe I’ll go back a little bit also to your last question about what is this moment and what do we need to be doing. I mentioned that the Trump administration has been attacking democracy on every front. I want to be concrete about what that looks like, and why the various kinds of training that law students have, the various expertise that law professors have can be equal to a moment like this.
President Trump promised when he was a candidate that he would issue an assault on universities, and he has certainly done so in these first months. So we need to be prepared to defend the value of a university, the value of academic freedom, the value of freedom of speech, the value of training people in how to disagree appropriately, and how to shore up and defend their arguments to be able to try to achieve the best end result. That’s what law schools are quintessentially for.
And we particularly need it now, when we have an administration that is trying to dictate what can be thought, understood, and taught in schools all over the country. So there’s a particular need for that kind of legal training. But we can take moments from the headlines literally any day of the week to find a reason to be worried about and vigilant about ensuring democratic principles.
Just this week, President Trump issued nonsense social media claims that the states are the agents of the president for purposes of voting and voting mechanisms. That’s not even a close question. Article I of the United States Constitution says that that is not so, gives that authority to the states, and no authority to the president or to the federal government over the question.
But here we have a president of the United States accreting to himself authority that our Constitution doesn’t give him. We need lawyers who are prepared to say that, who are prepared to defend what our constitutional boundaries are and what the basic norms for democracy are. So law schools are well-equipped to prepare people to do that and well-equipped to be thinking through what’s wrong with this particular problem, how do we defend against this particular problem, and how do we ensure that we don’t find ourselves here tomorrow and the next time.
GWYNETH SHAW: I want to talk a little bit about your white paper and talking about this attack on higher education, in particular. Can you just talk about the argument you’re making in there and where you think the law grounds the fight against these attacks on higher education?
CATHERINE LHAMON: It’s not an argument. This is actually what the law is.
A senior fellow, Seth Galanter, and I wrote this paper, “Commander in Thief,” and it explains what the metes and bounds are for when the federal government can enforce federal civil rights laws — here, Title VI of the 1964 Civil Rights Act and Title IX of the Education Amendments of 1972 — that those two very foundational federal civil rights laws set a guarantee that no person shall experience discrimination in school or in other places related to sex and to race and national origin. Those are longstanding, multi-decade core principles, from Congress to the United States, that all of us get to live as a promise.
When Congress created the 1964 Civil Rights Act and then the Title IX Education Amendments in 1972, Congress thought hard about what the process would be for enforcing that guarantee. And there’s a federalism question there about the role of the federal government and the role of states and local actors in delivery of service to people in the country.
And the calculus that Congress made was that there needs to be a backstop against harm. There’s a floor that we don’t fall below in terms of our core civil rights protections as a country, and that the federal government needs to prove its point when it thinks that any particular education institution has fallen below that floor. And there needs to be a process before that ultimate threat of fund withholding can actually be carried out.
So Congress demands in statute that the federal government tell a university, tell a school system that it has violated the law, show how it has violated the law, give that school system an opportunity to challenge that, say why it thinks something is different. And then there’s several steps that include court review if the university or the school system and the federal government can’t come to an agreement before fund withholding can be offered. That’s in statute. It’s not an open question. It’s not something that we have to think about, is this or is this not? What we should be doing, or what’s the best policy? This is the law that Congress wrote that we all live with.
But in this administration, the Trump administration has repeatedly withheld federal funds, first thought about it after, and then justified the withholding and with very little time in an exploding time bomb for when a university can come into compliance with what the Trump administration says is the law — which, by the way, frequently isn’t about the actual standards that it claims to be enforcing.
So it’s upending the process as a negotiating tactic, as something that is clearly unlawful that is well outside the bounds of what Congress has written and courts have upheld over and over and over again including the United States Supreme Court.
These are “coloring well outside the lines” problems that we are living, and it’s an administration that knows it and doesn’t mind. And so we wrote this paper to explain, here’s a history, here’s the statutory scheme, here’s what’s unlawful about it, so that there’s no question about what should be done, what shouldn’t be done and so that somebody, who doesn’t have the particular expertise that I have and that Seth Galanter has having enforced federal civil rights laws for more than a decade, can also what we and use it to defend these core democratic principles about what’s the right role of the federal government, what’s the right role of our local institutions.
GWYNETH SHAW: Why do you think that it has been so — I’m not going to say easy, because I don’t think it’s been easy — but why has the administration been successful in places so far at just getting rid of that process altogether? A couple of universities come to mind, but I’m just curious what you think, having been an enforcer of some of these laws, why that’s fallen apart.
CATHERINE LHAMON: Well, at their core, our democracy’s guardrails depend on someone using them. So we have principles that we’ve written in law. We’ve had long-standing contest about what are the boundaries, what are the places we can walk right up to the line, and that will be the end. But if a president — as this president is — is willing to step over that line, is willing to crash right through those guardrails, then our democratic governance holds only when there’s someone who’s willing to challenge it, who’s willing to say, “Well, no, that’s too far. That’s actually not what the Constitution provides. That’s not what the law provides.”
And up until this point in our history, typically presidents might have tested it a little bit, might have gone right up close to the line, but haven’t barreled through it in the way that the Trump administration in this second Trump term is very willing to do across lots of dimensions. So how do we get here? How is it so dangerous? We have not spined up as a country. We don’t have the willingness across our institutions yet to actually stand for what our constitutional guardrails say.
And I said that deliberately. I call them guardrails, because they are. They’re not norms. They’re not principles. They’re not policies. This is the law.
And so if we’re willing to stand up for the law — which we should be because we believe in democracy, because we want fair and equal treatment for all of us. That’s what government should be providing to us. And that’s not what we’re seeing from this administration, so it is time for more institutions, more people, more pillars of our American society, to actually stand for those guardrails so we fight for them.
GWYNETH SHAW: There’s a sense right now — and this is a week when National Guard troops are in Washington, D.C., interviewing people at bus stops.
CATHERINE LHAMON: Yes.
GWYNETH SHAW: Trump just finished talking with President Putin, and somehow voting by mail has become an issue in that discussion. And Texas Republicans just pulled off redistricting in the middle of the cycle to give them five more safe seats for Republicans. It feels that almost anything is possible. And I was going to say crushing norms, but I’m going to take your point that it’s not a “norm,” it’s the law. What are some concrete things that concern you in the short term, and then looking ahead to maybe next year’s midterms or future elections, are there some other things that you think may end up being not as concerning?
CATHERINE LHAMON: Well, I’ll just start by saying that as the executive director of the Edley Center on Law and Democracy, it’s my job literally to worry about everything all the time. So everything worries me. And I am paid to do that.
But as a reader of newspapers, as a person resident in this country, all of us need to be worried about this time, when our democracy is tested in a way that it rarely, if ever, has been, and when our collective willingness to stand for those ideals for the law, for what we have committed ourselves to for governance is evaporating and certainly in less evidence than I expected, then I think we had reason to hope. So I worry a lot.
But I also worry a lot, not only because I’m a congenital worrier, but because the president gives us a lot to worry about. There are so many fronts of attacks on what has been settled, what we have had a reason to expect would be how a leader would lead, what we would find at the grocery store, how our economy would be safe, who would work in federal government.
Just taking a look at the onslaught on civil servants in federal government. We have long believed in a federal job as a good, solid job, and that our civil servants would be there over time. And the agency that I led, the Department of Education, lost roughly half its staff at a time when the president has said that he wants to abolish the Department of Education, and agrees actually that it would take an act of Congress to do that. He doesn’t have the authority to do that. But then he’s functionally abolished the Department of Education just by firing people.
And we’ve seen that over and over and over across agencies — USAID, the State Department, pick your agency, HHS — that we’re losing the people who signed up to uphold government and to do their job according to legal principles in ways that touch all of us, that safeguard a safety net that we’ve had a reason to believe in. So I don’t think this is a time when any of us has a luxury not to be worried. And certainly, I am worried all the time.
GWYNETH SHAW: You’ve made a career in public service, and UC Berkeley Law really prides itself on its public mission. Why is it so important for lawyers and legal academics to advocate for and serve the public interest? Why would you say a student that you’ve just met, maybe in these few weeks as we’re getting classes underway, or recent alums should go into public service and to serve the public the way you have?
CATHERINE LHAMON: One can serve the public in lots of ways. It doesn’t have to be the way that I have. And I believe that my civil rights nonprofit career before coming to government, which is what I did for 17 years first in my legal career, I thought that was public service, too. So I think there’s lots of ways to serve the public good, and I hope that all of us, as lawyers, remember our duty to uphold the rule of law, to be constitutional officers, to practice professional ethics and professional responsibility. So I think that’s core to what it is to be a lawyer and so there’s opportunities for all of us to engage in it and to access it.
But also the reality is that each of us, lawyer or no, no matter who we are in the communities we live in, we each have power to uphold what we believe in, to uphold the principles that are our commitments as a country, and it’s important for us to do it.
Lawyers have particular skills, have particular training, and so particular avenues for doing it and that might be as a legislative advocate, that might be as a judge, that might be as a litigator, that might be as a counselor. There’s lots of places where someone can use legal skill to practice protecting democracy, protecting the public good, protecting our communities.
But I also think, again, that everybody, lawyer or no, has a responsibility to be an effective community member, to speak up when they see someone harmed, to speak up when something is not right and not righteous, and so that they are helping to build a norm and a practice of treating people the way that we want to be treated and treating people fairly and equally. That’s ultimately what our democracy is for.
And I think it’s really important in this space, in the halls of a law school, and for lawyers who have that training to go use it. Because even if you’re not a public servant or not working all the time for public justice, you will have an opportunity — in your pro bono work, in a dinner table conversation, in walking down the street, there will be opportunities for knowing what the law is, knowing what the guardrails are and speaking to them.
GWYNETH SHAW: And you’re seeing this in Washington, D.C., as I mentioned, other communities where there have been a lot of ICE enforcement or things, the regular people standing up, and whether it’s filming, an enforcement action, or getting into a conversation with someone to stand up and say, this isn’t right.
CATHERINE LHAMON: Right.
GWYNETH SHAW: How important is that going to be as we move forward given, as you mentioned, that a lot of these guardrails seem to be lower than maybe we all thought going into where we are?
CATHERINE LHAMON: I would say that differently. I think the guardrails are as high as we always understood them to be, but people are unwilling to use them. And so that’s why it’s so important actually to use that skill and to speak up and to stand up for what we know to be just, that the guardrails are perfectly effective if somebody will use it.
So just to use a concrete example from this month. The Trump administration just told five Virginia school districts that it will withhold federal funds from them, because they’re not complying with what the Trump administration believes to be the law.
And I was so pleased to read a school superintendent from Virginia say, we’re bound by a Fourth Circuit opinion that directs something that is different from what the Trump administration is directing, so we can’t do the thing that you’re asking for. And the superintendent said, I believe in the rule of law, and I believe in a place to test it. We’ll go to court to do that work, because we are bound by a court order that tells us what we must do even though the Trump administration would like us to do something different. That’s standing up for the rule of law, and that’s a guardrail working.
Still on this same point also the same month, a federal court in Maryland explained, I thought so succinctly, the point that when a president is elected, people have an expectation that the president will try to enact his policies and move forward with what that president wants to do. So nothing surprising about that. But it is the constitutional obligation of a court to say what the right procedure is for doing it. And so the courts need to stand for that and need to say, this is not the right procedure for enacting a particular policy. You would have to go to Congress for that or whatever the particular defect is. That point is so important.
It’s not that the president is not entitled to try to push the policies that the president believes in. I find them reprehensible, I don’t agree with them, but that’s neither here nor there. I’m not the president. And this is the president whom this country elected. That president is entitled to try to push those policies.
But there’s a lawful way to do it, and this president is consistently choosing the unlawful way. So it’s important to point that out. It’s important to say no. It’s important to go through the steps. If you would like to change x, y, or z policy, here’s how you would have to do it.
That’s what our democracy is about. That’s what our checks and balances are about. That’s actually our system that’s supposed to work. And that means that there’s lots of room to enact lots of policies that I find personally offensive. But the president can do that, and I would have nothing to say about it, because that’s what the law is. That is, I think, so important. And it’s been really gratifying to me to see judges, non-lawyers like the superintendent, people saying, “Wait, wait, I believe in the rule of law. I believe in this appropriate process. Let’s make sure we follow it.”
GWYNETH SHAW: Are you surprised that the Congress has been as willing to go along with many of these things as they have given that members, many of them, have a deep interest or participated in creating some of these laws that are now being ignored?
CATHERINE LHAMON: The short answer is yes. I’m shocked and so disappointed, because I believe in a system when I go and exercise my right to vote — for which we fought and died in this country so that I could do it — that my vote will mean something and that my elected officials will stand for the things that they told me as campaigners that they were standing for and so I voted for them. And I expect that backbone.
So just to call out some names. I am deeply disappointed that Lisa Murkowski in Alaska decided that she would cut a deal for Alaskans understanding that people would die as a result of the law that she then voted for. But there would be some relief in Alaska, and so that’s enough. That is morally reprehensible and shocking to me that so many of our elected officials — and I just called out one as an example, but there’s hundreds we could name —who are aware of the harm that their votes will visit on Americans, and they do it anyway.
I hope that all of us remember that the next time we vote. I hope that we are working on systems to elect stronger and more righteous elected officials, and I hope that we can turn that around. Because as I’ve mentioned, the systems of checks and balances that we have is perfectly strong if we use them, but we have a Congress right now that is watching a president grab their power, ascribe it to himself, which is unlawful, and generally not acting.
It was nice to have rights while we had them but having them depends on standing for them. It depends on that vigilance and either Congress will or won’t.
GWYNETH SHAW: One of the things that gets talked about a lot as part of this is the public education component. And I mentioned the white paper series having the goal of being an education program and helping people understand the places where their rights are being threatened. What do you see as the role of a place like the Edley Center and yourself?
I know you do a lot of media, so you’re out there talking in the popular press so people can read it. But do you see an education, a civic education component for the center so that people who may not remember their high school civics or didn’t get a great grounding in some of these checks and balances, separation of powers issues that you’re talking about? Do you see a role for the Edley Center in that?
CATHERINE LHAMON: Absolutely. The first white papers that you mentioned earlier that we published are what we hope are the first in a series of we call “accessible explainers.” And it is a reminder — and sometimes a little more than a reminder — about the way that the law works and the way that we have said as a country that we will be governed, so that we can measure, we can hold a mirror as against how we are being governed now, and that will give more capacity, more authority for more of us to use that information and to stand for what we believe in.
So I think it’s really important for the Edley Center to be a space to share information and to equip more people to be defenders of democracy. I think that’s really important. And also I hope it’s a space for our law students and our law faculty to test out ideas and to be working together on new proposals for what will work in this time, what will work in the times to come for actually protecting the democracy I love.
GWYNETH SHAW: You’re just beginning to build. You just got here. But what are some of the things that are your overarching goals aside from the current situation? Are there things, big picture, things that you’re thinking about over the next few years?
CATHERINE LHAMON: I hope in the next few years we have a democracy. So I hope that the Edley Center is successful as one among many places to uphold the democracy that I believe in. And I also hope that we will continue to be a place that can answer questions, help develop policy ideas, and help see actually put into practice in our communities particular things that will safeguard our democracy in lots of ways. I mean, there’s no shortage of need and no shortage of issues to be addressing, and I hope that we will be a trusted source for anyone on any issue related to democracy, and that we will be robust and thriving in the next years as we need to be.
The law school created the Edley Center a year ago, maybe with a different vision in mind. And certainly, I think nobody knew what the outcome of an election six months later would be. But the reality is, as challenging as this time is — and it is existentially challenging now for us, full stop — it’s at a speed and a scope that is magnified. But the reality is that we always have to be vigilant about our democracy. Always there’s tests and there’s conflict that we need to be prepared to stand for. So there’s always a need for a place like the Edley Center, and there’s an acute need now.