For years, many of us who have long supporteded the American Civil Liberties Union (ACLU) have grown alarmed by its abandonment of core principles in the support of civil liberties in favor of support what seems a more political agenda. Under the leadership of a President Susan N. Herman and Executive Director Anthony Romero, the ACLU has dropped support for unpopular causes while aligning itself more closely with the Democratic Party’s position on issues ranging from immigration to sexual harassment. I have spent my life supporting the ACLU and speaking at its conferences. It has been very painful for many of us in the “Old guard” as these political advocates have taken over the board and organization. That has been evidenced as the ACLU moved to develop a more nuanced approach to “hate speech” after criticism following the Charlottesville protests. Free speech protection was once the touchstone of the ACLU which was fearless in its unpopular advocacy. It is now an area of open retreat for the organization as the leadership seeks to appease irate donors. Despite the right to carry being a constitutional right, the ACLU has indicated that it will not vigorously support the right to lawfully carry weapons at protests. That is no more evident than in the truly shocking filing of the ACLU to oppose due process rights for students at our colleges and universities, particularly in the imposition of a higher and more consistent evidentiary standard. While I found aspects of the brief to raise compelling points, the thrust of the brief is an attack on basic evidentiary protections that would have once been viewed as a position fundamentally at odds with the organization’s mission.
ACLU filed suit to try to block the increased due process protections mandated by Education Secretary Betsy DeVos in her recently proposed reforms. I have long been a critic of the rollback on due process under the Obama Administration and have noted the absence of the ACLU in leading this fight. The group seems increasingly committed to appeasing liberal donors and supporters in avoiding such fights. Now it has actually taken up the cause of reducing due process — a position that disgraces its long and proud legacy.
The ACLU sounds much like its historic opponents in decrying the scourge of too much due process as inhibiting greater enforcement. It states that the increased right to protections like confrontation and counsel “sharply limit educational institutions’ obligations to respond to reports of sexual harassment and assault.” It is now actively trading off civil liberties to achieve beneficial social ends. It has embraced the very false choice that it spent years refuting. There is no need to erase due process protections to achieve the protection of students from sexual harassment or assault. It is a false dichotomy. Universities once opposed such rollbacks, but the Obama Administration ordered the de facto changes. It then became a political cause, particularly when the Trump Administration sought to restore due process.
The filing belittles due process protections as technicalities or barriers to justice: “Students shouldn’t have to jump through hoops just to report abuse.”
The ACLU opposes the different treatment given sexual harassment as opposed to harassment and assault based on race, national origin, or disability. Yet the lawsuit is not arguing for enhanced due process across the board but the lower standard for sexual abuse cases, which are the most common area of due process abuse and carry possible criminal implications for students. Thus the ACLU objects to “Permitting, and in some cases requiring, schools to apply a higher standard of proof in sexual harassment hearings than has been required in hearings involving other forms of harassment committed by students.”
The ACLU states that:
“Holding schools accountable for their failed responses to sexual harassment only when they are “deliberately indifferent,” while requiring schools to “take prompt and effective steps reasonably calculated to end harassment, eliminate the hostile environment, prevent its recurrence, and remedy its effects” in cases of harassment based on race, national origin, or disability (see ¶¶ 98-105).”
I think the ACLU’s points on the difference between types of harassment is a legitimate issue. However, the ACLU clearly opposes the relatively low standard of “clear and convincing evidence” which should apply universally. It also opposes the extension of the higher standard that applies to faculty to those students accused of the same type of violations:
“Section 106.45(b)(1)(vii) of the Rule allows institutions to adopt a “clear and convincing evidence” standard of proof, more stringent than typically required when evaluating complaints brought under other civil rights laws, including private damages actions under Title IX. This places a heavier burden on those alleging sexual harassment than on students who allege other forms of harassment. Moreover, in some situations, the provision will force schools to use a “clear and convincing evidence” standard for sexual harassment claims, even though they will be free to use “preponderance of the evidence” for harassment based on race, national origin, or disability. 107. Section 106.45(b)(1)(vii) requires institutions to ‘[s]tate whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment.'”
The ACLU repeated the objection that “institutions are now required to adopt the higher standard if they use it for sexual harassment complaints against faculty.” Yes, it is true that the higher standard may be part of collective bargaining contracts or individual contracts. However, why would the ACLU object to the imposition of the same protective standard for students and faculty alike?
The ACLU does not address the Obama Administration gutting the evidentiary standard, an issue that I flagged at that time:
“In the past, many schools have required significant evidence to find students or faculty guilty, often a “clear preponderance” or “clear and convincing evidence.” These standards require less than the criminal “beyond the reasonable doubt” standard but still a 75% or 80% certainty of guilt. The administration, however, demands that schools adopt the lowest evidentiary standard short of a presumption of guilt — “preponderance of the evidence,” just slightly above a 50-50 determination.
Because many of these cases involve the classic “he-said-she-said” situation, they come to the university as an even split based on opposing testimony. Add in the fact that many of these cases involve drinking, and the “preponderance” standard becomes a recipe for injustice. Even the slightest evidence can dictate the result and tends to favor conviction.”
Yet, the ACLU actually argues for the lesser protective standard for students who could not only face expulsion but potential criminal charges. They will certainly be painted as sexual abusers for the rest of their lives. Nonetheless, the ACLU argues:
“Promoting the use of a clear and convincing standard of proof for sexual harassment complaints is internally inconsistent with other provisions of the Rule that require that institutions ‘[t]reat complainants and respondents equitably,’ § 106.45(a)(1)(i), and adopt grievance procedures that provide for an “equitable resolution” of student complaints, § 106.8(c). OCR interpreted the Title IX regulations to mandate recipients’ use of the preponderance of the evidence standard for ‘equitable resolution’ of sexual harassment complaints as early as 1995.”
The concerning element is the exclusive concern of the ACLU for the accusing over the accused student. The ACLU insists the higher protections would “inflict significant harm on students who experience sexual harassment or assault and those who advocate on their behalf, including Plaintiffs. The challenged provisions dramatically undermine students’ civil rights and will limit their ability to access measures that enable them to continue with their educations.” What about the harm to falsely accused students, who are the subject of a number of recent cases where courts express alarm at the loss of due process at our schools? The ACLU seems blissfully unconcerned about such due process.
Once again, I think that the difference in the standards that apply to different types of harassment is worthy consideration. However, the ACLU goes further to attack the imposition of a more protective evidentiary standard while dismissing the countervailing interests of the accused. The ACLU was an inspiration for me as a young law student and I have spent my career supporting its mission and speaking at ACLU conferences. I have spoken to many of my generation who are mystified by the politicalization of the organization over the last decade. It has led to internal struggles and the departure of core figures in the ACLU. This brief is the manifestation of the loss of mission and clarity at the ACLU. It is also a troubling example of the loss of legitimacy for the organization.
The ACLU is now unmoored not just from its origins but from its defining value to this country. The loss of the ACLU as the nation’s premier defenders of civil liberties would be immeasurable. It has long been the North Star for those of us in the civil liberties community. For that star to be extinguished would leave future generations without an organization that was unbowed and undeterred in supporting the least popular among us.