The ACLU Declines to Defend Civil Rights
Updated at 10:17 p.m. ET on November 29, 2018.
In a recent statement, the civil-liberties organization opposed new Title IX guidelines put forward by Secretary of Education Betsy DeVos. By taking a stand against stronger due-process protections in campus tribunals, Conor Friedersdorf argued last week, the organization undermined its own principles.
Friedersdorf argues that Title IX cases should be held to the “beyond a reasonable doubt” standard, as is used in criminal cases, but Title IX procedures are not criminal. Indeed, the ACLU’s blog post (which Friedersdorf quotes) states, “The customary standard of proof for civil proceedings … requires proof by a preponderance of the evidence, which is more than 50 percent.” If Title IX hearings are civil, not criminal, then why should criminal standards apply? Why do sexual-harassment proceedings require criminal-law standards when other civil proceedings do not?
So yes, as Friedersdorf states, “The ACLU doesn’t object to any of those due-process protections when a person faces criminal charges.” Unsurprisingly, the ACLU supports criminal-charge due-process protections when there are actual criminal charges. There are no criminal charges in Title IX proceedings; the ACLU’s stance is entirely appropriate.
Julianna R. Poole
Conor Friedersdorf asserts that the ACLU is in the wrong for not demanding the same standards of due process for accused college sexual abusers who are “tried” in an administrative college hearing as are required in criminal trials.
The due process that the ACLU advocates is rooted in the Fifth and Fourteenth Amendments’ due-process clauses, which state that a person shall not be deprived of “life, liberty or property” without “due process of law.” In the case of administrative college hearings, there are no proper judges or juries, the strict rules of evidence followed in a criminal proceeding are not the same, and, most importantly, the accused’s “life, liberty or property” are never in jeopardy in the literal sense.
In fact, the accused is never placed in criminal jeopardy, because it is not a criminal proceeding. If the accused is not found guilty in a college hearing, nothing precludes the filing of proper criminal charges in which the standards and due-process requirements that the ACLU fights for must be followed.
I consider myself a strong proponent of civil and human rights, but when we start demanding “due process of law” in situations where the law is in no way involved, we lose sight of what we are fighting for, which is freedom from government intrusion. If an accuser chooses to go the administrative route instead of the criminal route, they can only expect administrative rules to apply.
P. Aiden Hunt
I am a second-year law student at Rutgers Law School in Newark, New Jersey. I spent my summer and my semester analyzing due process in campus sexual-assault tribunals. I was incredibly disappointed in Mr. Friedersdorf’s lack of a basic understanding of what due process entails. Due process is not some abstract synonym for “fair process”—it is the minimum procedure required for a process to pass constitutional muster. Mr. Friedersdorf fails to wrestle with the 40-plus years of litigation at the Supreme Court deciding what, exactly, due process is in a campus hearing. First, for the due-process analysis to be triggered, there must be a liberty interest at stake. There exists no fundamental right to education, and not all circuits agree that individuals have a constitutional liberty or property interest in a higher education.
This letter has been updated to remove a reference to legal data that could not be verified.
It is clear from the ACLU’s statement alone that they are standing with survivors rather than the accused, which fits perfectly into the larger mission of the organization, defending those who have historically been cruelly ignored and put-upon. Mr. Friedersdorf possibly believes the ACLU, and perhaps all of us, should ignore history or intention when judging these new rules.
Conor Friedersdorf replies:
Collectively, these letters include confusion about both the position of the ACLU and my criticism of that position. The ACLU position, in part, is that no burden of proof stronger than “a preponderance of the evidence” is justifiable in campus disciplinary hearings about sexual assault—and indeed, that even private institutions should be banned from using a “clear and convincing evidence” standard. In support of its position, the ACLU argues, in part, that “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.” Those arguments inescapably imply that people accused of bad behavior should be judged guilty based on a lower burden of proof if the bad behavior is common; that processes that favor the accused are unfair; and that safety is inversely related to due process for accused persons.
While the ACLU is staking out those positions in a campus context, their positions have broader implications.
I wrote that the ACLU’s arguments about due process on campus undermine its arguments and long-standing principles about due process off campus. But I did not opine or argue that campus disciplinary hearings should be exactly the same as criminal trials. For example, the new Department of Education rules would allow colleges to adopt a “clear and convincing evidence” standard in campus disciplinary hearings. I defended that change and objected to the ACLU’s critique of it. But I did not opine on or argue in favor of the proposition that the criminal standard of “guilt beyond a reasonable doubt” ought to be adopted in those matters.
Why is a stronger burden of proof than “a preponderance of the evidence” appropriate even though accused students are not facing criminal charges? First, there are ways in which these proceedings resemble criminal matters more than civil disputes, especially at public institutions. This isn’t one party suing another for breach of contract or damages, with the state as a neutral arbiter. It is a government entity investigating and trying someone subject to its jurisdiction for an infraction against institutional rules. Second, there are reasons beyond strict constitutional requirements to take great care in refraining from punishing the innocent.
One correspondent wrote that “for the due process analysis to be triggered, there must be a liberty interest at stake.” In these cases, there are clear liberty and property interests at stake. Potential penalties are as serious as permanent banishment from a community where students set down deep roots, financial losses that could easily run into six figures, and reputational damage very likely to significantly diminish future educational and career prospects. Notice how much more liberty and property are at stake than in, say, a criminal-misdemeanor case where the penalty for a first-time offender would be (for example) a few days in jail or a $1,000 fine. How much process is due in matters of such consequence? I’d say much more than was being offered to many students.
Readers interested in going deeper in the weeds might begin here.
Another correspondent argues that the ACLU is “standing with survivors rather than the accused, which fits perfectly into the larger mission of the organization, defending those who have historically been cruelly ignored and put-upon.” First, that is not the historic mission of the ACLU. Its mission is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” It traditionally defends “all people from government abuse and overreach” out of a belief that “once the government has the power to violate one person’s rights, it can use that power against everyone.”
Second, imagine a case where a black man from a poor neighborhood, the first person in his family to attend college, is accused of sexual misconduct by a white woman, or a white man, a third-generation Ivy League legacy from one of America’s wealthiest families. The ACLU would have the accused student found guilty and expelled under a much lower evidentiary standard than the Department of Education. How is the ACLU position in that case friendlier to “those who have historically been cruelly ignored and put-upon”? Variations on privilege analysis used to defend the ACLU’s position give a misleading, incomplete, and frequently inaccurate picture. Indeed, as in the criminal-justice system, the least privileged people are in the most danger of being wrongfully punished, and strong due-process protections are very likely to disproportionately help the most marginalized people accused.