Last week, the NRA kept defending gun rights, the AARP kept advocating for older Americans, and the California Avocado Commission was as steadfast as ever in touting “nature’s highest achievement.” By contrast, the ACLU issued a public statement that constituted a stark, shortsighted betrayal of the organization’s historic mission: It vehemently opposed stronger due-process rights for the accused.
The matter began when Secretary of Education Betsy DeVos put forth new guidelines on how to comply with Title IX, the law that forbids colleges that receive federal funding to exclude any students, deny them benefits, or subject them to any discrimination on the basis of sex.
The most controversial changes concern what happens when a student stands accused of sexual misbehavior. “Under the new rules, schools would be required to hold live hearings and would no longer rely on a so-called single investigator model,” The New York Times reports. “Accusers and students accused of sexual assault must be allowed to cross-examine each other through an adviser or lawyer. The rules require that the live hearings be conducted by a neutral decision maker and conducted with a presumption of innocence. Both parties would have equal access to all the evidence that school investigators use to determine facts of the case, and a chance to appeal decisions.” What’s more, colleges will now have the option to choose a somewhat higher evidentiary standard, requiring “clear and convincing evidence” rather than “a preponderance of the evidence” in order to establish someone’s guilt.
The ACLU doesn’t object to any of those due-process protections when a person faces criminal charges. Indeed, it favors an even higher burden of proof, “beyond a reasonable doubt,” to find an individual guilty.
But the ACLU opposes the new rules for campuses. “Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it,” the organization stated on Twitter. “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence. We will continue to support survivors.”
One line in particular was shocking to civil libertarians: It promotes an unfair process, inappropriately favoring the accused. Since when does the ACLU believe a process that favors the accused is inappropriate or unfair?
Not when a prosecutor believes she has identified a serial rapist, or a mass murderer, or a terrorist. In those instances, it is the ACLU’s enemies who declare that crime is alarmingly high and reason that strong due-process rights therefore make the world unacceptably unsafe. It is the ACLU’s enemies who conflate supporting survivors of violent crime with weakening protections that guard against punishing innocents. Those enemies now have the ACLU’s own words to use against it.
Alas, this is not an instance of a rogue tweet. On the ACLU’s website, Emma J. Roth and Shayna Medley articulate their objections to the new rules at length. Compared with the old rules, they “would not further the stated goal of fair process,” they argue. Think what their position means. A college student reports a sexual assault, perhaps saying that she was too drunk to consent to sex, or that she consented to kissing but not to having her breast touched, or that she consented to sex but then withdrew her consent and felt the other party did not stop fast enough.
Under the old rules, a single campus administrator could investigate the claims, bring charges against the accused, and decide at the end of the process whether or not he is guilty. The accused could be denied the ability to review evidence against him; exculpatory evidence could be withheld from him; he would not be able to cross-examine his accuser; and if the investigator decided there was at least a 51 percent chance of his guilt, he could be expelled.
Under the new rules, an investigator must present what she finds to a neutral party. The accused can view the evidence against him, is told about exculpatory evidence, and gets to cross-examine the accuser through a representative. He may be declared guilty if there is “clear and convincing evidence,” not based on a slightly more likely than not standard.
The ACLU believes that the latter scenario is less fair. Its 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.
The ACLU blog post argues:
Schools could adopt a standard of proof that favors the respondent.
Standards of proof are integral to fair proceedings. The customary standard of proof for civil proceedings, where both sides have something to lose and there is no reason to favor one side over the other, requires proof by a preponderance of the evidence, which is more than 50 percent. The preponderance of the evidence standard applies in all other sexual harassment proceedings and should apply here as well. Previous Department of Education guidance adopted that standard of proof.
But the new regulation would allow schools to use a “clear and convincing evidence” standard, which favors the respondent by finding against complainants even where it is more likely than not that their account is accurate. There is no reason to weight the scales against complainants in civil disciplinary proceedings, and doing so will predictably result in findings for respondents even where it is more likely than not that the assault took place.
Notice that the ACLU does not merely argue that “a preponderance of the evidence” standard is superior to a “clear and convincing evidence” standard in campus proceedings in which a state school is punishing a student. In the ACLU’s telling, the more onerous standard is so wrongheaded that rules meant to protect against discrimination on the basis of sex ought to forbid even private colleges that take federal money to adopt such a standard. It even asserts that “there is no reason” for the more onerous standard, as if its adherents aren’t motivated by the same concern that presumably causes the ACLU to favor a still more onerous burden of proof in criminal cases: a desire to prevent the wrongful punishment of innocents.
When someone stands accused of sexual assault in criminal court, does the ACLU believe in the “beyond a reasonable doubt” standard merely because that is what the Constitution requires, or because it is better to leave some guilty people unpunished than to punish many innocents? “The old-school ACLU knew there was no contradiction between defending due process and ‘supporting survivors,’” David French writes. “Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a ‘survivor’ of a profound injustice.”
Says the criminal defense attorney Scott Greenfield:
The ACLU cannot love constitutional rights only when it serves to further a cause on behalf of their favored marginalized group, then hate it when it doesn’t, and still be given credit as a voice for civil liberties … Remember, due process “inappropriately favors the accused.”
Those four words are the ACLU’s epitaph.
Before declaring the ACLU dead as a civil-liberties organization (as opposed to acknowledging that it is in critical condition), I’d like to know whether its board of directors is supportive of how its current staff is changing the organization, and I’d like to learn how many members will fight to conserve its values. The choice is not between social justice and civil liberties, as some argue—by undermining the case for strong due-process protections with arguments that appeal to authoritarian impulses, the ACLU is weakening principles that protect the most vulnerable among us.
Should it continue arguing that the presumption of innocence constitutes discrimination against “survivors” while making college campuses unacceptably dangerous, and should it convince anyone of those arguments, it will steadily weaken its own hard-fought positions in the criminal-justice system.
Those protections are never totally secure. Responding to this very controversy, a federal lawmaker with apparent contempt for the Sixth Amendment has declared:
No survivor should be cross-examined by his or her accused rapist. Ever. Full stop. https://t.co/DZgvEuZKi6— Rep. Joe Kennedy III (@RepJoeKennedy) November 15, 2018
One wonders whether that will be the position of the ACLU in the near future—and how much of its staff can be relied on to oppose it vocally even today.