IDEAS

The ACLU Declines to Defend Civil Rights
The civil-liberties organization has taken a stand against stronger due-process protections in campus tribunals that undermines its own principles.

9:52 AM ET

Conor Friedersdorf
Staff writer at The Atlantic

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.

[Emily Yoffe: Reigning in the excesses of Title IX]

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.”

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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?
....

Those protections {afforded the accused in criminal-justice system} 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.

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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.

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CONOR FRIEDERSDORF is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.