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The ACLU vs. due process. If you were looking for more evidence that the American Civil Liberties Union (ACLU) has been losing its principled approach to civil liberties, look no further: The group has filed suit to thwart Education Secretary Betsy DeVos’s recently proposed reforms to bolster due process protections for students accused of sexual misconduct.
“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,” wrote the ACLU in its lawsuit. “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.”
The lawsuit frequently asserts that marginalized students will suffer under the new rules, but it never acknowledges that students of color were disproportionately harmed by the old rules. White woman accuses black man of rape; black man is expelled was a distressingly common series of events under the old regime—one that might have invited sympathy from an older model of the ACLU, given the organization’s historic concern that racism in the criminal justice system has led to disparately harsh outcomes for black people.
Not this time. To the extent the lawsuit addresses racism, it uses it as a cudgel to break apart DeVos’s carefully considered revisions to some Obama-era rule changes. The lawsuit frequently notes—as if this is some trump card that should override the new protections—that there is now a different standard for allegations of sex-based discrimination than there is for race-based discrimination on campuses:
The newly issued Rule, however, includes several provisions that are contrary to both the language and spirit of Title IX [the federal statute that governs sexual misconduct in schools], and depart significantly not only from consistent past practice, but create a double standard, in which educational institutions have dramatically different obligations to respond to harassment based on sex, on the one hand, and race, national origin, and disability on the other. Despite issuing a 2,000 page “preamble,” [the Department of Education] never adequately explains why it is treating sexual and racial/national origin/disability harassment differently, despite similar statutory prohibitions. This double standard will have a devastating effect on survivors of sexual harassment and assault and their educations.
It would be one thing if the ACLU’s complaint was that due process protections for students accused of racial harassment are insufficient, given the stronger protections for those accused of gender-based harassment. But no: The organization wants the protections to be equally thin.
Indeed, the lawsuit takes aim at one of the most important aspects of the reforms: mandatory reporting. Under the new rules, universities do not have to initiate a formal Title IX investigation unless the alleged victim requests one. (In K–12, investigations are still mandatory.) A student who finds herself the victim of misconduct can now confide in a university employee—a supportive teacher or a coach—without worrying the matter will immediately escalate into formal and adversarial adjudication. Many victims do not want their assailants investigated, or to go through the steps that it would take have them sanctioned. They want to be heard, supported, and counseled. Several Title IX lawsuits have involved scenarios where the university conducted an investigation that was contrary to the victim’s wishes.
“Sexual harassment and assault have no place in our schools,” declared the ACLU in its press release. “Federal law imposes obligations on schools to make sure that’s the case. Students shouldn’t have to jump through hoops just to report abuse.”
Under the new rules, the “hoop” is a Title IX official. Report misconduct to the official, and an investigation begins. For victims who wish to begin formal adjudication, this hardly seems like an unreasonable requirement.
This is damning with the faintest of praise, but it’s a relief the ACLU is refrains from taking aim at DeVos’s requirement that Title IX investigations involve hearings where attorneys or representatives for both parties can question each other. Still, the fact that the lawsuit exists at all is deeply troubling. This is an organization once known for refusing to betray its principles, no matter how unsympathetic the person whose rights are being violated. (One wonders what the new ACLU would do if a member of the Westboro Baptist Church enrolled at a university and began shouting one of the church’s crude “God hates X” slogans at a person belonging to a group protected under Title IX.)
Compare the actions taken by the ACLU on this front with the stance it took on victims’ rights vis a vis Marsy’s Law:
Marsy’s Law is premised on the notion that victims should have “equal rights” to defendants. This opening salvo is a seductive appeal to one’s sense of fairness. However, the notion that victims’ rights can be equated to the rights of the accused is a fallacy. It ignores the very different purposes these two sets of rights serve.
Victims’ rights are not rights against the state. Instead, they are rights against another individual. The Marsy’s Law formula includes the rights to restitution, to reasonable protection, and to refuse depositions and discovery requests, all of which are enforced against the defendant. Such rights do nothing to check the power of the government. In fact, many of the provisions in Marsy’s Law could actually strengthen the state’s hand against a defendant, undermining a bedrock principle of our legal system—the presumption of innocence.
This risk further underscores one of the overarching concerns about Marsy’s Law: It pits victims’ rights against defendants’ rights. Creating such a conflict means that defendants’ rights may lose in certain circumstances. This result accepts that defendants’ rights against the state will be weakened or unenforced in some cases, potentially at a significant cost to constitutional due process. In other words, the chances that an innocent person could be convicted of a crime they did not commit could potentially increase. The proponents of Marsy’s Law may not intend for this outcome, but nothing in their formula prevents it.
So much for that.