The New ACLU: The Once Premier Protector of Due Process Has Filed A Lawsuit Opposing Due Process Protections

downloadFor 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.

69 thoughts on “The New ACLU: The Once Premier Protector of Due Process Has Filed A Lawsuit Opposing Due Process Protections”

  1. When has the ACLU-less ever been pro civil rights? They have as a matter of fact been socialists voting against civil rights ever since 1909

  2. Since when did the DOJ subcontract out to universities? It seems like anything with the word “sexual” in it is being lumped together in one big unsavory mess. Title IX stuff and rape are handled by university bureaucrats, which has an unsubtle irony in that those same bureaucrats seem to spend most of their time trying to figure out ways to screw the students, so I guess they figure they’re experts. The bottom line is that criminal charges should be handled in the criminal courts. That’s it. Universities can and should have channels to facilitate things for students, both accusers and accused, but all criminal charges have to be handled by the cops. Rape, theft, assault, whatever. One, it’s the law, and two, I can’t think of any group of people less qualfied to do anything in an efficient and fair manner than university administrators except maybe Congress. I had to do an online sexual harassment course for my teaching job and there were these little vignettes like, Bob tells Carol she looks nice today. Is that harassment? You could only pass the course if you put “yes” for everything. Meanwhile, I had what I thought might be a Title IX violation when a female colleague kept telling one of my female students she should date my colleague’s male student (my student asked me to ask my colleague to please stop) and the Title IX lady treated me like I was a gatecrasher, presumably because my colleague was female and therefore the “good guy” by default and also because the Title IX lady seemed pretty lazy and not that smart which is realistically, the pool of people from which university administrators tend to be hired. But that’s a separate issue. Meanwhile, the university where I taught had a campus-wide no smoking policy but did they enforce it? Of course not. They won’t even tell students not to smoke marijuana on campus but these same people want the right to brand kids as rapists and ruin their lives. I think AOC expressed the concept best when she said it was more important to be “morally right” than “factually correct.” These people seem blissfully unaware that moral rectitude and facts are inextricably bound together, and the only way to try and establish the facts is through the justice system. (With the separate issue being that the department of justice is revealing itself to be the “department of let’s see what we can get away with” as Trey Gowdy said so it doesn’t exactly inspire confidence either).

  3. Did Governor Cuomo commit a Class D felony when he recklessly ordered Covid infected patients into nursing homes filled with vulnerable people?

    § 120.25 Reckless endangerment in the first degree.
    A person is guilty of reckless endangerment in the first degree when,
    under circumstances evincing a depraved indifference to human life, he
    recklessly engages in conduct which creates a grave risk of death to
    another person.
    Reckless endangerment in the first degree is a class D felony.

  4. So the ACLU is another institution that the Democrats have perverted into an arm of the DNC. Although, I think this happened a while back. I recently received a blatantly anti-Trump appeal from the ACLU in the mail. I dumped the garbage into the trash. Or maybe I started a fire in the fireplace with it. Whatever, I was surprised they still have 503 status. Sooo, I discovered this:
    In the wake of President Donald Trump’s alarming ban on refugees, the ACLU has crushed it in the donations department, receiving $24 million just this weekend—six times what it might expect to get in a given year, organization officials have said.

    But if you’re one of the thousands of people whipping out your wallet to lend a financial hand to the nonprofit poised to fight what’s been dubbed the Muslim ban, take in this tip first, courtesy of Money magazine: Donate to the ACLU Foundation, not the main ACLU.

    Why? The ACLU Foundation is a 501(c)(3) nonprofit, which means donations made to it are tax deductible. The main ACLU is a 501(c)(4), which means donations made to it are not tax deductible—though you do get a nifty membership card if you donate there.

    If you’d like to donate to the ACLU that specifically represents your state, you’re also in luck. All of the ACLU affiliates are 501(c)(3) nonprofits, and your donations to any of them would be tax deductible. (One thing to keep in mind: We’re talking about your 2017 taxes.)

    Of course, the ACLU isn’t the only nonprofit ready to take on the immigration ban. Money cites organizations such as the Council on American Islamic Relations, the International Refugee Assistance Project, and the National Immigration Law Center as among several that would happily accept tax-deductible donations to help fight the ban.
    Squeeky Fromm
    Girl Reporter

  5. I knew there was something wrong with laws being applied equally and fairly to all. I mean can you believe it, all of us being treated the same. What an absurd idea.

  6. I also believe that it is not an educational facility’s purview to investigate allegations of sexual assault. Those should immediately be reported to law enforcement. A university may certainly suspend a student while under criminal investigation, but if he is not found guilty, or the charges are not filed or dropped, then he or she must be fully reinstated. In addition, there must be no gender bias in how males and females are treated. That means all females are to believed sans evidence, and all males are not disbelieved, sans evidence.

    Universities need to stop playing cops.

    If the victim will not or cannot file charges, or there is insufficient evidence for the police to do so, then the university cannot punish the accused, especially by expulsion.

    Innocent until proven guilty.

  7. The ACLU sued to block due process protections.

    Nothing else needs to be said to determine it has lost its way.

    Therefore, its name, the American Civil Liberties Union, is misleading. Perhaps it should be sued for false advertising, and forced to change its name.

    The discovery process would be riveting.

    There do need to be organizations that defend civil liberties, including the First Amendment, without regard to content. You might hate whom they defend, but at one point, it might be you whom others would silence.

    That defender is no longer the ACLU. Its slide into Democrat politics has gone on far longer than this blog posts implies. At some point, it might be considered a Democrat PAC. That means there is a new niche for a real, unbiased, defender of civil liberties.

  8. Powell has now filed writ of Mandamus seeking relief for General Flynn.

        1. “Abstract
          The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”

          But the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive’s decision to abandon a case.

          To be clear, there may be good reason for the district court to grant the Government’s motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48’s forgotten history.”

        2. PD:

          “I expect the appeal Court to quash the writ. On we will go…”
          Yeah but it sets up the appeal when Sullivan steps on his appendage and does something stupid like deny the motion. The appellate court will typically give the trial judge a chance to redeem himself and toss in a little insight/warning about what they will likely do if he doesn’t heed the warning. I suspect some late night “Hey Emmet, how’s the family” calls from chambers will happen too in this high publicity case. Don’t think it doesn’t happen when the stakes are big.

          1. Mespo– Good thinking. That sounds about right. They may look for a way to end it without more damage. It’s a mess now, kind of a Mandelbrot set of legal issues.

    1. Skokie was the reason I became a member of the ACLU when I was old enough. That was a long time ago when the left cared about civil liberties. Now the left is the enemy of civil liberties…it’s just bananas.

      The good news is that there are many people leaving the left for this reason alone. Joe Rogan just spoke with Crowder about the madness of the modern left:

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