Arnold Ahlert / May 26, 2020

ACLU Sues — to Undermine Constitutional Rights

It once championed individual rights — to an attorney, a fair trial, and to cross-examine one's accuser.

On May 6, Education Secretary Betsy DeVos released her Title IX reforms regarding how colleges and K-12 schools should handle complaints of sexual assault and misconduct. In a great indication it is no longer the organization it has purported itself to be, the American Civil Liberties Union (ACLU) filed a federal lawsuit on May 14, asserting the changes would “inflict significant harm” on victims and “dramatically undermine” their civil rights.

“Victims” is a loaded word. In 2011, then-Vice President Joe Biden and Education Secretary Arne Duncan released a “Dear Colleague” letter to the nation’s 4,600 institutions of higher education, laying out new directives explaining how campuses should approach allegations of sexual assault. “It was the beginning of a concerted effort that radically remade how students could interact sexually, with severe penalties for those who violated increasingly expansive codes of conduct,” reveals columnist Emily Yoffe. “The accused were to be judged under the lowest standards of evidence, the definitions of misconduct were widely broadened, third-party reports could trigger an investigation even if the alleged victim did not think there had been a violation, and more.”

Thus a reasonable question arises: As per these directives, if due process, free speech, and other rights of the accused are denied, who is the genuine victim?

It didn’t matter to the Obama administration. Using the Department of Education’s Office for Civil Rights (OCR) as its enforcement mechanism, Team Obama made it clear that any school failing to adhere to the administration’s new guidelines might lose federal funding.

The Foundation for Individual Rights in Education (FIRE) highlighted some of the absurdities enshrined by the changes. For example the OCR tossed aside the “reasonable person standard,” whereby conduct or speech in question must be objectively offensive, and replaced it with biased subjectivity: “Any sexually related or gender-based expression may constitute sexual harassment if it is subjectively deemed by the complaining student to be ‘unwelcome.’”

In short, self-perceived victimhood was enshrined. Unsurprisingly, many of these incidents involved intoxicated male and female students. And while Title IX ostensibly required male and female students to be treated identically before campus rape tribunals, adjudicators consistently failed to do so. In several ensuing lawsuits, judges held universities to account when their disciplinary actions were triggered by holding male students solely accountable.

Moreover, in the ensuing years, a number of other innocent students who were victimized by what amounted to kangaroo courts — with the attendant destruction of reputations, often followed by expulsion — filed additional lawsuits, and schools such as the University of Southern California, Penn State, Ohio State, Hofstra University, Boston College, and Claremont McKenna College have been on the losing end of decisions. Others, like Northwestern University, Dartmouth College, and Yale, have settled lawsuits.

KC Johnson, a professor at Brooklyn College and the coauthor of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, illuminated a big reason why many of the plaintiffs prevailed. “One commonality is the lack of cross-examination,” he said. “Courts are saying each side should have the opportunity to question each other.”

That opportunity is an integral part of DeVos’s reforms. “We can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process,” she stated when releasing the new guidelines.

Furthermore, those guidelines are far more sensible regarding the scope of a college’s responsibilities. While colleges are still required to adjudicate incidents that occur on campus, and at recognized off-campus affiliated locations like fraternities, off-campus incidents will be handled by the police.

Reforms also eliminate the single-investigator model, whereby the same person both investigates and adjudicates a case, and give colleges the opportunity to replace the mandated preponderance-of-the-evidence standard, in which the accused is found guilty based on 51% certainty, with the clear-and-convincing standard, requiring more certainty. Moreover, despite accusations that the rules allow “accused sexual abusers to cross-examine and re-traumatize their victims,” such cross-examinations will be done by an intermediary.

The ACLU remains unimpressed. “DeVos has discarded decades of [the Department of Education’s] experience addressing sexual harassment and assault by promulgating regulatory provisions that sharply limit educational institutions’ obligations to respond to reports of sexual harassment and assault,” the lawsuit states. “If allowed to be implemented at educational institutions nationwide, these provisions will make the promise of equal educational opportunities irrespective of sex even more elusive. This is true for all students, including students of color, LGBTQ students, and students with and without disabilities, in grade school, high school, and higher education.”

Nonsense, but quite indicative of a sea change by the same ACLU that once championed individual rights, the right to an attorney, a fair trial, and the right to cross-examine one’s accuser — as opposed to group grievances and identity politics.

Now? “Students shouldn’t have to jump through hoops just to report abuse, and schools should not be allowed to ignore claims of discrimination on the basis of sex when they would have to respond to claims of discrimination on other protected grounds,” the ACLU asserts.

Jump through hoops? The reforms require students to report any claim to a Title IX official on campus, not just any instructor or administrator. That’s hardly jumping through hoops. Moreover, if any claims were ignored under the Obama administration’s mandates, those made by the accused professing their innocence — and being officially ignored — go to the top of the list.

The suit was filed on behalf of four advocacy groups for sexual-assault victims, including Know Your IX and Girls for Gender Equity, two groups that ensure young women are well aware of their status — as victims. The suit seeks to block the Education Department’s new provisions before they go into effect on August 14.

“Betsy DeVos has created a double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls,” insists Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. “We are suing to make sure this double standard never takes effect.”

Wrong. Led by Joe Biden, the Obama administration championed a presumption of guilt, rather than innocence. That double standard would totally torpedo the Democrat Party’s semi-comatose standard-bearer were it applied to him regarding accusations made by his former Senate staffer, Tara Reade.

Fortunately for Biden, constitutional standards of justice still apply in his case — even as he and the ACLU remain determined to undermine them for other potential defendants.

It doesn’t get more ironic than that.

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