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The ACLU’s J’Accuse

The group comes out against equal treatment before the law.

More than four years ago, 28 members of the Harvard Law School faculty publicly criticized the sexual-assault adjudication procedures adopted by the university under pressure from the Obama administration. They noted that these were “overwhelmingly stacked against the accused.” The law professors, including some with stellar feminist credentials, said that the university’s goal should “be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.” Similar expressions of concern about the basic unfairness of the federally dictated Title IX procedures, which most colleges had adopted enthusiastically, would also come from groups of law professors at Penn and Cornell.

Since April 2011, when the Obama administration sent thousands of schools its “Dear Colleague” letter reinterpreting Title IX to mandate guilt-tilting sexual misconduct procedures, colleges and universities have been on the losing side of 117 court decisions in lawsuits filed by accused students; 53 more lawsuits (at the federal level alone) were settled before a court could render any decision. Summarizing judicial concerns about universities’ one-sidedness in a 2016 decision involving a student from Brandeis University, U.S. District Judge F. Dennis Saylor wrote, “It is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

As all of these developments occurred, the American Civil Liberties Union (ACLU) remained silent. For more than seven years, the ACLU never criticized the evisceration of due process and fundamental fairness in campus Title IX tribunals—although it also never endorsed the Obama-era standards. But in case after case, it ignored egregious unfairness to accused students who had strong claims of innocence. The organization finally broke its silence on November 16, after Education Secretary Betsy DeVos proposed new regulations on campus sexual misconduct designed to make campus procedures fairer to both parties. In an inflammatory Twitter thread, the ACLU described the new regulations as “inappropriately favoring the accused.”

It was a broad attack, and the ACLU did not exempt the fundamental protections that DeVos’s effort is designed to restore—the right of accused students to be presumed innocent; the right of accusers and accused alike to cross-examine witnesses through a lawyer or an advocate; and the right of the accused to examine all the evidence uncovered in the campus investigation and all the materials used to train campus adjudicators. The thread closed with a promise: “We will continue to support survivors.”

Ten hours after the tweets (which were surely posted before the ACLU had fully digested all 149 pages of DeVos’s proposed rule), the organization issued a broader analysis by Emma J. Roth, a fellow at the ACLU’s Women’s Rights Project, and Shayna Medley, a fellow at its LGBT & HIV Project. Though their article claimed that the ACLU “is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants,” its tone and contents confirmed the thrust of the Twitter thread. They closed by characterizing the proposed rule as just another in “a long line of actions taken by the Trump administration to attempt to roll back civil rights for some of the most vulnerable students.”

Roth and Medley alleged three specific problems with the proposed regulations, only one of which directly addressed the procedures afforded to accused students: that the regulations would allow schools to choose between “preponderance of the evidence” (50.01 percent) and “clear and convincing evidence” (around 75 percent) as the standard of proof in adjudicating the innocence or guilt of accused students. (It is worth noting that the ACLU has not criticized the existing use of the clear-and-convincing standard mandated by some schools’ union contracts to adjudicate sexual harassment complaints against professors.) The two further problems they adduced are that the proposed regulations use the Supreme Court’s definition of sexual harassment, rather than the far more expansive language of Obama-era guidance, and reduce the number of university administrators legally obligated to act if they receive a Title IX complaint from an accuser. The official ACLU statement, issued by the organization’s deputy legal director, simply summarized the points raised by Roth and Medley.

It is difficult to discern a connection between the wildly inflammatory claim in the ACLU’s tweet—that the proposed regulations would be “inappropriately favoring the accused”—and these three specific complaints.

In practical terms, it’s unlikely that any of the three provisions would have much effect on students who experience sexual misconduct on campus. Since September 2017, DeVos has allowed every college and university in the country the option of using the clear-and-convincing standard of proof in Title IX cases—and, as far as we have been able to determine, not one has chosen to do so. In the current campus climate, any university president who moved in the direction of protecting possibly innocent accused students would almost certainly be subjected to a wave of campus protests and risk losing his or her job.

While it’s possible that a tighter definition of sexual harassment would exclude some Title IX complaints, the ACLU didn’t cite a single campus complaint against an accused student over the past seven years that would have qualified as sexual harassment under the Obama-era standard but not under the Supreme Court’s definition. Colleges, of course, could retain the Obama-era definition in their own disciplinary codes. And the mandatory reporting issue focuses mostly on bureaucratic minutiae rather than broader questions of principle.

In short, after spending seven years ignoring myriad and severe due-process deprivations on campus, the ACLU resorted to unlikely hypotheticals to criticize the proposed remedy.

The ACLU’s position is odd for an organization that purports to be devoted to civil liberties. Roth and Medley argued that for colleges to use the clear-and-convincing standard would “weight the scales against complainants in civil disciplinary proceedings.” But this view imagines the Title IX process as a contest between accuser and accused, rather than what it is: a process in which representatives of the college effectively investigate and prosecute the accused, with the accuser as the chief witness. As the Foundation for Individual Rights in Education (FIRE)—which has become the nation’s preeminent champion of civil liberties on campus and been tireless on the issue of the 2011 guidance—noted, “Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.” The American Association of University Professors has made a similar point. So has the American College of Trial Lawyers.

This year, moreover, federal judges hearing lawsuits against the University of Colorado and the University of Mississippi suggested that the preponderance standard in Title IX sexual-assault proceedings is itself unlawful. U.S. District Judge James Browning of New Mexico went further, holding that “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to [the accused student’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [his] transcript.”

Perhaps there are other occasions in the ACLU’s history in which it maintained that multiple federal courts were worrying too much about the rights of the accused. But there can’t be many. The Atlantic’s Conor Friedersdorf observed that ACLU “staffers weighed what most meaningfully excludes someone from equal treatment in education—and they decided new due-process protections are more problematic than expelling someone after a process wherein they were unable to see evidence, or question their accuser, or be judged by a neutral party.”

As to the definition of sexual harassment, schools’ aggressive applications of the Obama administration’s more expansive definition have been denounced by many civil libertarians as infringing on constitutionally protected speech. And for good reason. Federal agreements settling investigations of the University of Montana and the University of New Mexico indicated that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’ ” including “verbal” (speech)—even if the allegedly harassing statements of the accused student or faculty member would not be offensive to an “objectively reasonable person of the same gender in the same situation.” It’s hard to fathom a civil liberties organization—especially one that decades ago stood up for the free speech rights even of Nazis—showing such hostility to federal protection of speech.

Roth and Medley provided a final reminder of the ACLU’s newfound indifference to the plight of the accused by asserting that the ACLU is especially concerned about “students of color” and other vulnerable campus populations. Yet there is ample evidence in the reporting of Emily Yoffe, Ben Trachtenberg, Jacob Gersen, and Jeannie Suk Gersen that the Obama-era Title IX guidance has disproportionately harmed accused students of color. At the few universities for which race-based campus statistics exist, such as Findlay and Colgate, men of color are dramatically overrepresented among those punished for sexual assault. “If we have learned from the public reckoning with the racial impact of over-criminalization, mass incarceration, and law enforcement bias,” Suk Gersen wrote in the New Yorker in 2015, “we should heed our legacy of bias against black men in rape accusations.”

As the Washington Post’s Radley Balko observed after the group’s Twitter attack, “The ACLU still does some great work. But damn is it ever disappointing to see this organization, with all its history, use the phrase ‘inappropriately favoring the accused.’ ” Whatever the merits or flaws of the rest of the ACLU’s activities, it has become an adversary of due process and free speech on campus.

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