Title IX Uncategorized

Restoring Impartial and Fair Investigations on Campus

Restoring Impartial and Fair Investigations on Campus


May 29, 2020

The new Title IX regulation, recently released by the Department of Education, contains several provisions designed to assure impartial and fair investigations on campus:  The relevant provisions, with key words in bold, are listed below:

Section 106.45 (b)(1): A recipient’s grievance process must—

(i) Treat complainants and respondents equitably….

(ii) Require an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence—and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness;

(iii) Require that any individual designated by a recipient as a Title IX Coordinator, investigator, or decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment;

These regulatory provisions represent an important step in restoring impartiality and fairness to campus investigations.


Nebraska State Patrol study: Boys make up majority of missing Native Americans

Nebraska State Patrol study: Boys make up majority of missing Native Americans

A study from the Nebraska State Patrol and others found that the majority of Native American missing persons are boys age 17 or younger.

That’s just one of the findings in a 42-page study the State Patrol released Saturday. The study was done in collaboration with the Nebraska Commission on Indian Affairs.

Last year, the Nebraska Legislature passed a bill that required the State Patrol to study the issue of missing Native American women and children in Nebraska.

State Sen. Tom Brewer of Gordon, a member of the Oglala Sioux Tribe, introduced the bill.

The State Patrol and others looked at missing persons databases and policies from 51 law enforcement agencies and conducted listening sessions with four Native communities.

Among the findings, a disproportionate number of the state’s reported missing persons were black or Native American. The greatest percentage of Native American missing persons are boys age 17 or younger, accounting for 73.3% of all Native American missing persons in Nebraska.

Among all racial demographics, 59.6% of Nebraska missing persons are boys age 17 or younger, the report found.

The challenges of reporting and investigating cases may be exacerbated by jurisdictional issues between tribal and nontribal law enforcement agencies, lack of relationships between the agencies and racial classification when entering the cases into databases, the study found.

Judi gaiashkibos, executive director of the Nebraska Commission on Indian Affairs, said Saturday that the study was a step in the right direction, but it is just the beginning.

“This study reveals that persistent and deliberate human and Indigenous rights abuses are significant factors in Nebraska’s staggering rates of violence against Indigenous women and children,” gaiashkibos wrote in the report. “There is a need for transformative legal and social change to resolve the crisis that has devastated Indigenous communities in this state.”

Col. John Bolduc, superintendent of the State Patrol, said in a press release that his agency has been able to develop new partnerships through the study that are already benefiting the state’s Native American citizens.

“The most common points raised during the listening sessions illustrated a need to revitalize connections between tribal residents and law enforcement,” Bolduc said. “That work can have a substantial impact on multiple facets of public safety, including missing persons cases.”

The State Patrol found that many law enforcement agencies across the state do not currently have a policy for reporting missing persons to centralized databases. The patrol said it will work with the Nebraska Crime Commission to develop a standard operating procedure for handling missing persons cases and provide it to agencies throughout the state.

Brewer said Saturday he hadn’t had an opportunity to review the report in its entirety.

If conducting the study broke down some of the barriers between law enforcement and the state’s Native American citizens, then it’s a step forward, Brewer said.

Title IX Title IX Equity Project Uncategorized

145 Universities Under Federal Investigation for Sex Discrimination Against Male Students


Contact: Rebecca Stewart

Telephone: 513-479-3335


145 Universities Under Federal Investigation for Sex Discrimination Against Male Students

WASHINGTON / May 27, 2020 – A total of 145 colleges and universities around the country are currently under investigation by the federal Office for Civil Rights (OCR) for allegations of sex discrimination against male students. The investigations are targeting some of the most prestigious and largest institutions of higher education around the country.

On January 7, 2020, OCR opened an investigation against Harvard University for its support of seven sex-discriminatory programs. These programs include the Harvard College Women’s Leadership Awards, Graduate Women in Science and Engineering, and the Women in Global Health LEAD Fellowship. The LEAD Fellowship advertises its program with this uncommon description, “Learn, Engage, Advance, Disrupt.” (1)  (OCR Complaint No. 01-19-2203)

Ohio State University boasts a total enrollment of 68,262 students, with female students outnumbering males. Despite this fact, OSU offers zero male-specific scholarships and 10 scholarships for female students (2). OCR initiated this case on May 18, 2020. (OCR Complaint No. 15-20-2074)

Community colleges are being investigated, as well. On April 22, the OCR launched a probe of Portland Community College. The Complaint by the SAVE Title IX Equity Project identified 11 scholarships designated for female students, and only one scholarship for male students. The College’s student demographics are 45.9% male and 54.1% female (3). (OCR Complaint No. 10-20-2081).

Disparities in the numbers of sex-specific scholarships can be surprisingly large (4). Auburn University, for example, offers 67 female-only scholarships, and only one scholarship for male students.  (OCR Complaint No. 04-20-2092).

Title IX is the federal law that prohibits sex discrimination in schools. The Title IX implementing regulation states, “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance….” (5)

The listing of all 145 institutions is available online (6). The number of universities under investigation is expected to climb as OCR considers dozens of other Title IX complaints that have been filed in recent weeks.

Allegations of sex discrimination have garnered widespread media attention (7). SAVE urges college legal counsel to provide stronger oversight to Title IX Coordinators, who are responsible for assuring compliance with Title IX requirements and minimizing the institutional burdens of responding to a federal Title IX investigation.




Stop Abusive and Violent Environments is leading the national policy movement for fairness and due process on campus:

Sexual Assault Sexual Harassment Title IX Uncategorized

The Tale of ATIXA


May 22, 2020

A dramatic tale includes the elements of conflict, controversy, unexpected character behavior, and resolution. Here’s how the Tale of ATIXA recently unfolded….

On Monday, May 11, the Association of Title IX Administrators (ATIXA) sponsored a webinar titled, Ten Things to Know About the New Title IX Regulations. Brett Sokolow, President of ATIXA, instructed over 4,200 webinar attendees that they were not to follow the Department of Education regulation to post all training materials on university websites.

Instead, they were to follow ATIXA’s guidance to post only the training material titles. Inquirers could request to look at the training material in person, but could not photocopy or make a copy.

An audio recording of the webinar was then posted on the ATIXA website [1].

SAVE then wrote a commentary regarding Sokolow’s instruction to the ATIXA membership. The article, ATIXA Puts Members into Legal Jeopardy Regarding Requirement to Publicly Post Training Materials, posed this question: “So what part of ‘A recipient must make these training materials publicly available on its website’ does the Association for Title IX Administrators (ATIXA) not understand?” [2]

SAVE’s commentary was posted on May 13 at 12:19pm. That’s when the elements of conflict, controversy, and unexpected character behavior came into play.

Within hours, Sokolow posted a series of critical remarks directed at SAVE. Sokolow deleted the posts several days later, but not before they were captured by screenshot: [3]

5/13/20 @BrettSokolow


“I suppose I should respond with a tweet “SAVE Advocates Colleges and Schools Engage in Violation of Federal Copyright Laws.” Somehow you seem to think OCR has the authority to abrogate other federal laws. Interesting.”

“How embarrassed are you that you worked this hard, transcribed our content (sharing of which likely violates fair use), and never even bothered to read the regs, which explicitly protect our copyright. Egg on your face much? Going off half-cocked much? You’re a hack.”

“Ed. Take this crap down. Immediately.”

Sokolow then quoted a passage from the new Title IX regulation [4]:

1/2 “Read ‘em and weep. To the extent that commenters’ concerns that a recipient may be unable to publicize its training materials because some recipients hire outside consultants to provide training, the materials for which may be owned by the outside consultant and not by the….

2/2…recipient itself, the Department acknowledges that a recipient in that situation would need to secure permission from the consultant to publish the training materials…Rescind your garbage communication, now, Ed. It violates our copyright, too.”

SAVE did not respond to these inaccurate posts, because the truth is its own witness.

The plot thickens.

On Monday, May 18, just one week after the ATIXA webinar, the U.S. Department of Education Office for Civil Rights Blog cleared up any misunderstanding. The Department issued a clarification for posting (1) Contact information for the school’s Title IX Coordinators; (2) A school’s non-discrimination policy; and (3) Training Materials used to train the school’s Title IX personnel.

The blog post reads in part [5]:

  • Section 106.45(b)(10)(i)(D) does not permit a school to choose whether to post the training materials or offer a public inspection option.
  • If a school’s current training materials are copyrighted or otherwise protected as proprietary business information (for example, by an outside consultant), the school still must comply with the Title IX Rule.
    • If a school is unable to secure permission from a third party to post copyrighted training materials, then the school must create or obtain training materials  that can lawfully be  posted on the school’s website.

This clarification soon led to the tale’s resolution…

5/19/20 @BrettSokolow to another Twitter user:

“We have withdrawn and are revising this guidance based on the most recent OCR clarification of its expectations.”

Conflict, controversy, unexpected character behavior, and resolution.

This cautionary Tale represents a victory for students and faculty members who are facing a Title IX investigation; and for universities who will not have to face legal battles for ignoring federal Title IX law.




[3] Available upon request at



Accountability Campus Civil Rights False Allegations Sexual Assault Sexual Harassment Uncategorized Victims

Addressing common misconceptions about the new Title IX regulations

by Susan Kruth, FIRE

The Department of Education finalized its new Title IX regulations less than two weeks ago, and already, a lot of misinformation about them has been published in various forms of media. We can’t address it all here, but we wanted to at least clarify some points that many commenting on the regulations are getting wrong.

Often, misinformation about the law proliferates because people don’t have the time or energy to check original sources. Commentary doesn’t always include citations, and sometimes people think they won’t be able to read or understand legalese anyway. On the second point, they’re usually wrong. So when in doubt, readers: Be skeptical of any source that doesn’t quote and link to the regulations themselves, and go back and read them yourselves.

Without further ado, here are some commonly shared incorrect or misleading statements about the regulations:

  1. The regulations mandate that sexual harassment cases be treated differently from racial harassment cases.

The regulations require that federally funded educational institutions — all but a few colleges and universities across the country — respond a certain way to sexual misconduct, and these requirements do not all apply in non-sexual misconduct cases. ED isn’t instructing schools to treat non-sexual misconduct cases differently, per se; it just can’t create obligations for how institutions handle non-sexual misconduct allegations in Title IX regulations, because Title IX governs sex discrimination only. Under the new regulations, institutions will no longer be required or encouraged to provide respondents in sexual misconduct cases fewer free speech and due process rights than they have been providing respondents in non-sexual misconduct cases.

With respect to the definition of harassment, for example, critics argue that sexual harassment will have to reach a higher threshold before schools can and must punish someone engaging in sexual harassment compared with racial harassment.

[T]here are many sources of misinformation out there, including individuals and organizations that should know better.

It’s easy to see where this misinformation comes from: In the spring of 2013, the Department of Education promoted an unconstitutionally broad definition of sexual harassment — “any unwelcome conduct of a sexual nature,” including “verbal conduct” — although it publicly backed away from this definition just months later. As FIRE explained at the time, the Supreme Court of the United States established the legal definition of student-on-student (or peer) sexual  harassment in the 1999 case Davis v. Monroe County Board of Education: conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Moreover, in its 2001 Revised Sexual Harassment Guidance, issued by President Bill Clinton’s Department of Education the day before President George W. Bush was inaugurated, ED’s Office for Civil Rights addressed requests “to provide distinct definitions of sexual harassment to be used in administrative enforcement as distinguished from criteria used to maintain private actions for monetary damages.” It declined to do so, explaining that “schools benefit from consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.”

The new regulations’ definition of hostile environment harassment tracks the Davis standard: “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” So if critics have a problem, their problem is with the Supreme Court, or perhaps with the Clinton administration, not with the current Secretary of Education.

In any case, courts have been applying the Davis standard to racial harassment cases for almost Davis’ entire existence. When ED instructed institutions to punish “any unwelcome [speech] of a sexual nature,” it didn’t make the same instruction with respect to racial harassment. As a result, institutions were left with the impression that they should be punishing a far broader spectrum of sex-related speech than race-related speech. The new regulations simply clarify that both types of harassment should be assessed according to the Davis standard.

FIRE would be very pleased to see the regulations’ procedural safeguards guaranteed in all serious, non-academic misconduct cases.

Similarly, with respect to the standard of evidence, schools are already treating sexual and racial misconduct cases differently, and the regulations explicitly allow institutions to treat them the same way. In a 2011 “Dear Colleague” letter, ED mandated for the first time that all institutions governed by Title IX use the “preponderance of the evidence” standard in adjudicating sexual misconduct cases — but again, it made no such mandate with respect to race-related cases.

As a result, most colleges maintain a bifurcated system where sexual misconduct cases are dealt with differently from all other cases, including racial harassment cases. Some schools, inclined to require “clear and convincing evidence” for a responsible finding, have been using a higher standard of evidence for non-sex-related cases than for sex-related cases since 2011. ED’s rescission of this 2011 mandate and finalization of the new regulations gives institutions a path (and ED has encouraged institutions) to use the same standard for both types of cases.

Finally, with respect to the adjudication procedure aside from the standard of evidence, the same is true. Many institutions already provide live hearings for non-sexual misconduct cases, but not for sexual misconduct cases. This may be in part due to a 2014 report by the White House Task Force to Protect Students From Sexual Assault, which encouraged schools to use a single-investigator model for sexual misconduct cases. Under the new regulations, these schools will give students facing non-sexual misconduct cases and students facing sexual misconduct cases more similar opportunities to defend themselves and challenge the evidence against them in a meaningful hearing.

FIRE would be very pleased to see the regulations’ procedural safeguards guaranteed in all serious, non-academic misconduct cases. (In fact, FIRE has worked with legislatures to enact bipartisan legislation that provides consistent, robust safeguards in campus proceedings whenever there is a potential penalty of 10 or more days of suspension or expulsion on the line.) But for now, the regulations at least help ensure that respondents in sexual misconduct cases possess many safeguards they are often granted already in non-sexual misconduct cases.

Students walk near Healy Hall at Georgetown University.Students walk near Healy Hall at Georgetown University. (Sharkshock /
  1. The regulations raise the standard of evidence for campus disciplinary cases.

Somewhat relatedly, critics have argued that the regulations effectively require institutions to use a higher standard of evidence for sexual misconduct cases than they did previously. This is easily demonstrated to be false. The regulations plainly state that an institution may choose “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,” so long as it uses the same standard for “all formal complaints of sexual harassment,” including against employees. If an institution wants to use the “preponderance” standard, it still can do so. Furthermore, institutions were in the same position before the 2011 Dear Colleague letter, and have remained in the same position even after 2011 with respect to non-sexual misconduct cases. There is no drastic new requirement here.

The same could not be said for the 2011 Dear Colleague letter, which did impose new requirements on schools — without ED soliciting notice and comment from stakeholders, as required under the Administrative Procedure Act.

The ACLU and others argue that the preponderance standard should be required anyway because it is the standard used in Title IX cases in civil court. But those cases are against institutions that are guaranteed many more procedural safeguards in court than students are afforded in campus disciplinary systems, including some of the safeguards to which some commenters have objected now that they are required by the new regulations. Institutions also have lawyers and money and other resources at their disposal to assist in their defense. These institutions will not be punished because three out of five fact-finding panelists believe it is more likely than not that they committed wrongdoing, as students can be.

Still, if institutions want to use the low, preponderance standard, they may.

  1. The regulations gut Title IX protections.

Critics of the regulations claim that they “gut[] Title IX protections for students.” To the contrary, as my colleague Joe Cohn explained in a post earlier this month, the regulations require that schools provide new and important safeguards, options, and tools to both complainants and respondents, and they bring the focus of the regulations back to the original purpose of Title IX — ensuring equal access to education.

Right now, too many institutions aim for whatever result is worst for the respondent, not whatever result is best for the complainant. They are concerned with punishing students who they deem guilty, but they are not necessarily asking what complainants feel would be most helpful for them to continue their education. That serves no one.

Safeguards like the opportunity to question witnesses aren’t just useful for respondents; they can be used by complainants and their representatives to demonstrate to fact-finders the truth of their complaints, too. With more information shared in advance of the hearing, complainants will be better able to prepare for it. And with a guarantee of impartial fact-finders and public training materials, complainants can have more confidence that their cases will be handled fairly — or more recourse if they aren’t.

As Shiwali Patel, senior counsel for the National Women’s Law Center, has written, “[T]here isn’t a conflict between ensuring a fair process for both survivors and for alleged perpetrators.” We agree. With both parties guaranteed many safeguards that they do not receive on most campuses now, fact-finders will be better equipped to reach accurate, reliable findings of fact, whether they’re responsible findings or not responsible findings. Procedural safeguards help ensure more innocent students are not punished and more guilty students are punished.

Procedural safeguards help ensure more innocent students are not punished and more guilty students are punished.

Moreover, some provisions of the regulations and supplementary information will help protect against common hurdles that self-identified survivors have faced. For one example, after recognizing commenters’ concerns about complainants bearing the burden of gathering relevant evidence themselves, ED emphasized that institutions, not students, should bear that responsibility. It explained: “Title IX obligates recipients to operate education programs and activities free from sex discrimination, and does not place burdens on students or employees who are seeking to maintain the equal educational access that recipients are obligated to provide.”

One victims’ rights advocate said in a recent interview that she received only two days’ notice that the person she alleged raped her would be questioning her. She was afraid of hearing her attacker’s voice again, and ended up dropping her case. We can’t say whether she would have dropped her case if the hearing process complied with the new regulations, but there are, at least, provisions in the regulations to address several of these factors. She would never have had only two days’ notice of cross-examination.

Between clear policies requiring an opportunity for questioning and the several weeks of aggregate time guaranteed to students as they collect and review evidence, she would not have been caught off-guard in this way. And she wouldn’t have to face her alleged rapist directly — she wouldn’t have to hear his voice if she didn’t want to. With questioning conducted by both parties’ representatives, and with the ability to participate from another room, she would have to endure less direct exposure to her alleged rapist than she did without the regulations.

This is not a comprehensive review of provisions that will help protect complainants, but these examples should at least cast doubt on claims that the regulations benefit only respondents.

Yet, many responses to the regulations have been extreme. Catherine E. Lhamon, chairwoman of the United States Commission on Civil Rights and former ED’s Assistant Secretary for Civil Rights, tweeted: “[Betsy DeVos] presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”

FIRE understands that too often, complaints of sexual harassment and assault are not taken seriously, and that FIRE’s mission of defending accused students’ due process rights does not align with everyone’s first priorities. However, it is just not true that affording students more robust due process rights means that anyone can rape and harass “with impunity.”

The physical act of assault — sexual or not — is still prohibited and punishable under university rules and state laws. The determination of whether speech may be punished as discriminatory harassment will follow the same analysis as it has in courts for decades. ED retains the ability to deny funding to institutions governed by Title IX. Schools will be able to mete out more serious punishments with more confidence that respondents found responsible have earned it, and that the case won’t be overturned in court. And, if anything, schools will be less able to hide wrongdoing (including bias in favor of respondents) behind closed doors, from training to investigations to decisions to appeals.

In a similar vein, critics of the regulations assert that the regulations instruct institutions to ignore harassment until a student drops out of school, rather than addressing problems early enough that a complainant can continue her education at that institution. But the supplementary information accompanying the regulations explicitly states that the applicable standard requires only “that a person’s ‘equal’ access to education has been denied, not that a person’s total or entire educational access has been denied”; it “does not require that a complainant has already suffered loss of education before being able to report sexual harassment.”

Again: Read the document yourself.

Meier Commons at the University of Nebraska-Lincoln.Meier Commons at the University of Nebraska-Lincoln. (Ken Wolter /
  1. “But my school already provides a fair disciplinary procedure!”

We’ve spoken with many administrators who think that they already provide procedural safeguards like notice of charges and an opportunity to be heard. But these administrators’ institutions often do not actually guarantee these safeguards; instead, they maintain policies that allow an administrator to grant those safeguards or to omit them, at their discretion. This is problematic on several levels. First, it means that one student (indeed, a complainant or respondent) may be treated better or worse based on an administrator’s personal feelings about them or their case. Such a result cannot stand. Second, it means that many students will, in practice, be denied these procedural safeguards, effectively depriving them of a meaningful opportunity to present their cases.

It’s not enough to have policies that an administrator could theoretically interpret in a way that affords a student procedural safeguards. Policies must be clear and specific enough that they will be applied the same way in all cases, whether applied by the person who wrote them, or a hypothetical administrative robot, or someone who thinks the policies should say the opposite of what they say. And administrators should want this clarity, too. After all, if you went through the trouble of crafting a policy you think is fair, wouldn’t you want it to be applied as you intended if you left the school or something happened to you?

The regulations require this clarity and specificity. And if an administrator thinks their institution already provides these safeguards, surely no harm can come from making that indisputable.

  1. Institutions can’t handle this right now.

Critics of the regulations have argued that now was the wrong time to finalize these regulations. Subsequent headlines described the regulations as “quietly” enacted, as if there hasn’t been constant discussion of their imminence for nearly 18 months among those with an interest. Here’s the timeline:

The regulations were proposed in November 2018. Over 120,000 comments were submitted, and ED had to read and prepare a response to them all. (Hence, also, the length of the supplementary information.) When that was finished, organizations opposing the regulations reportedly (according to a college administrator who also opposes the regulations) implemented a strategy to delay their release for months more. Then COVID-19 hit. Institutions had over a year before then to plan for policy revisions. And without the delay strategy, the regulations may have, indeed, been finalized before this pandemic reached the United States, or at least before it changed the landscape for schools nationwide.

[M]any institutions already have language they can use to comply with the regulations … Institutions do not have to start from scratch.

Delay aside, these opponents of the regulations are essentially arguing that colleges must be required to adjudicate these cases during the pandemic, but that the executive branch is powerless to take steps to ensure they are adjudicated fairly. We doubt the same people would hold this stance if ED had finalized regulations identical to the 2011 Dear Colleague letter. After all, the 2011 letter was enacted without notice and comment and effectively required immediate changes, and we didn’t see objections to the letter on that basis from those who supported the new requirements.

Finally, two practical notes: First, if institutions aren’t looking forward to revising their policies mid-pandemic, they should be even less excited about facing potential litigation for denying respondents due process, especially with an ever-increasing number of rulings in favor of those respondents.

Second, many institutions already have language they can use to comply with the regulations, because they already provide live hearings in non-sexual misconduct cases. These institutions can simply start with this framework, take out language leaving safeguards at the discretion of various administrators, and add in the specific notice and other requirements from the new regulations. Institutions do not have to start from scratch.

A closing note

There are other arguments against the regulations that we will be addressing in the coming weeks and months. We hope that our coverage will serve not only as a source of substantive information about the regulations and their context, but also as a reminder that there are many sources of misinformation out there, including individuals and organizations that should know better.

This is not a black-and-white issue, student rights are not a zero sum game, and there is no easy solution. Not everything in the regulations is exactly what FIRE would have written, or even something FIRE would try to write, given our narrow mission. But the regulations contain many procedural safeguards that ultimately will benefit students on either side of the disciplinary process.


It’s On Us and End Rape On Campus Virtual Town Hall on Title IX Rule Changes

Title IX is a federal civil rights law that was enacted in 1972 and states that discrimination on the basis of sex is illegal in the United States of America. This law has since been amended and expanded to include crimes in the Clery Act and the Violence Against Women Act. Past administrations also released guidance to ensure schools are providing students and survivors of sexual violence with proper support and response options that ensure they continue to have access to educational programs. On December 21, 2018, Secretary of Education Betsy DeVos released new guidelines for Title IX. The proposed rules gutted previous guidance from the Obama administration and included new guidelines that could make it even harder for survivors to report or receive supportive services. Unfortunately, two weeks ago today, these damaging new rules were officially published on the federal register and schools have just a few months to change their policies to abide by these new rules.

On Friday May 8, 2020, It’s On Us and End Rape On Campus held a virtual town hall with over 1,200 students from around the country, national organizations, and direct service providers, and we have put the top 10 most frequently asked questions from that town hall here with our answers and any information we have. We will continue to provide information to you as we receive it and are working to announce a virtual action in response to these dangerous new rules.

Top 10 Questions and Answers

Q: Can we see the entire 2000 page document? How do we access it?

A: Yes, HERE is a link to the document itself. For any visual learners, THIS is also a helpful webinar on the new rules.

Q: Will the new rules apply retroactively to cases opened before August 14, 2020?

A: Legally, cases that have already begun should not be affected by these new rules; however, whether the Department of Education will hold schools accountable for these new rules before August 14, 2020 is still unclear. Our assumption, based only on our policy analysis of the newly published rules, is that cases that were open prior to the August 14 deadline may essentially be affected by the new rules, but for cases that have been closed and with no pending appeals, the Title IX regs will not be retroactively applied to these cases. (Page 1869, Paragraph 2)

Q: Who would conduct cross examinations?

A: Cross examination is conducted by the opposing party’s advisor of choice. This means that a survivor cannot be questioned by the person who harmed them, but they can be questioned by that person’s best friend, coach, or parent. (Page 996, Paragraph 1)

Q: How does this affect students studying abroad? Are schools considered responsible for addressing these cases? If not responsible, are schools allowed to choose to address reports from study abroad?

A: The new rules specify that Title IX ONLY requires a school to respond to an assault that happens “in the United States”. This does not include study abroad programs, even if it is through an official school program, such as an international campus of a U.S. based school.

According to the Department of Education, sexual assault that occurs during a study abroad program doesn’t apply to Title IX specifically because it happened outside of the United States and they do not want to create a conflict with another country’s laws. However, according to the Department, “there is no prohibition of a school deciding to include more robust policies against sexual harassment for study abroad programs.” If schools decide to do this, it will be legally outside the realm of Title IX, and have no oversight by the Department of Education. (Page 1575, Paragraph 2)

Q: With the narrowed definition of sexual harassment in the new rules, are schools obligated to investigate instances of sexual harassment that occur online?

A: The new rules do not specifically mention online harassment. The circumstances of online harassment must be analyzed to determine if the event where the respondent exercised “substantial control” over the victim/survivor occurred “in a school program or activity.” For example, online harassment would qualify if a student was harassing another student during a class, but not if they did it on their personal device in their off campus apartment. (Page 644, Paragraph 1)

Q: How will schools determine if harassment is “so severe, pervasive and objectively offensive”?

A: All crimes in the Violence Against Women Act (VAWA) are included in the Title IX rules as they are defined in the VAWA statute (sexual assault, dating violence, domestic violence, stalking). The new Title IX rules define “severe, pervasive, and objectively offensive” as any crimes on the basis of sex that a “reasonable person” would find to “effectively deny a person equal access to an educational program or activity.” The rules do not define who a “reasonable person” is. (Page 488, Paragraph 2)

Q: Lots of questions about reporting / mandating reporter/ing / top official / responsible employee / responsibility of title ix coordinator

A: All schools are responsible for hiring at least one Title IX coordinator. A Title IX Coordinator is defined as at least one employee that is designated to coordinate the efforts to comply with a school’s responsibilities under Title IX. All Title IX Coordinators have the authority to institute corrective measures on behalf of a school (Page 2009, Paragraph 7). All schools must display the Title IX coordinator’s information on their website and in employee/student handbooks. This must include an option for both verbal and written reports. The Title IX Coordinator is responsible for responding to a report once the school has “actual knowledge” of the assault. Actual knowledge is defined in the rule as any information given to or attained by a Title IX Coordinator. Once there is actual knowledge, the school is responsible for a “prompt” response. This includes reaching out to the person alleging sexual harassment and confidentially discussing available resources and options for support. Options include receiving supportive measures from school or choosing to file a formal complaint. (Page 1605, Paragraph 1)

Q: Does the new rule change how campus public safety responds to incidents?

A: Based on our review, there are no specific changes to how campus safety responds; however, the narrowed definition of sexual harassment and the increased responsibility of the Title IX coordinator, may affect the way campus safety handles reports.

Q: Do schools have the right to define consent?

A: Yes they do. According to the new rules, each school can define consent so that it is in line with their state laws; however, it must also follow definitions listed in the Jean Clery Act, which defines sexual assault as, “Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.” (Page 363, Paragraph 1)

Q: Do the new rules change prevention education requirements?

A: They do not provide any specifications on prevention requirements or instruction on sexual consent. They do however, require ALL persons who are involved in responding to these crimes to receive training. See Violence Against Women Act Amendments to Clery Act for more specific prevention language.

Q: What can states do and how can state policies mitigate loopholes to the new Title IX changes?

A: We can encourage our state legislators to write and sign into law, policies that provide robust and comprehensive definitions of consent and requirements for prevention education or response to these crimes. For example, on June 28, 2019, Governor Tom Wolf signed into law Act 16 of 2019 (Act 16) which added Article XX-J to the Pennsylvania Public School Code of 1949. Building on the It’s On Us PA initiative, this law includes statutory requirements for addressing sexual assault at postsecondary institutions in Pennsylvania that award an associate degree or higher. Learn more about the sexual violence policy, PDE’s model policy, and the anonymous online reporting system here.

Q: Can colleges and universities choose to take stricter action?

A: Yes, as long as their policies do not interfere with the language of the new Title IX rules, they can institute more detailed policies.

1 | United States, Department of Education, Office of Civil Rights. “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiveing Federal Financial Assistance,” 34 C.F.R. Part 106, 2020.



Epidemics on Campus, Real and Imagined

The stark differences between universities’ reactions to COVID-19 and sexual misconduct.

Each academic year, activists and politicians sound the alarm that the nation’s college campuses are overrun by an epidemic of sexual violence. Presidential candidate and former Vice President Joe Biden, for example, has warned the nation that “one in five of every one of those young women who is dropped off for that first day of school, before they finish school, will be assaulted in her college years.” The numbers are swelling even larger in other surveys, to one in four or even one in three.

Interestingly, despite this so-called epidemic of sexual violence, colleges never made the decision to close. Instead they staffed up student conduct offices and dismantled due process protections for students accused of sexual misconduct in an effort to persuade alleged victims to come forward.

Now that COVID-19 has hit, we’ve seen how schools respond to a true epidemic. As more people got sick and even died from the coronavirus, colleges across the country closed, mostly voluntarily, in advance of state-ordered shutdowns—even though college-age adults are at much lower risk of death than older adults. Numerous colleges, including the entire California State University system, have already announced that they will not reopen for in-person instruction this fall.

This dramatic, rapid response suggests colleges would react very differently if they actually believed that 20 to 33 percent of their female students would fall victim to violent crime during their time in college.

Those one-in-five numbers come from surveys that define sexual assault differently from both the law and common understandings of what sexual assault entails. One survey asked participants if they’d ever had sex while drunk, or if someone had ever “pressured” them into sex by “threatening to end your relationship” or “showing they were unhappy.” In another survey, participants who answered yes to questions about unwanted conduct were recorded as victims, despite the fact that half of those alleged victims, when asked, did not consider the incidents “serious enough” to report.

Activists who are worried about the prevalence of assault have led opposition to the Department of Education’s new regulations governing the disciplinary process for students accused of sexual misconduct. These new regulations include such staples of Anglo-American justice as the presumption of innocence, the right to know the charges and see the evidence, and the right to cross-examine witnesses, including one’s accuser.

The statistical exaggeration of the activists is in full view in the first complaint filed by the ACLU to stop the new regulations. Either because the lawyers cannot do basic math or because they all truly believe their own numbers, they put the rate of sexual assault on campus at 240 percent, arguing both that 12 percent of college students report being sexually assaulted but that this represents only a mere 5 percent of the actual assaults, because 95 percent are never reported.

Epidemics obviously call for extreme measures, the logic goes, and canceling due process rights is a sacrosanct cure. If colleges allowed alleged perpetrators to confront their accuser, opponents warn, few victims would ever come forward because they might be retraumatized.

But the sexual assault epidemic shouldn’t really be called an epidemic. Rather, it’s the result of changing norms around sexual behavior—norms colleges push students to adopt by redefining a great deal of wholly lawful behavior as sexual violence. Within constitutional limits, colleges have the right to adopt new campus rules. For the sake of everyone involved, though, they must drop the pretense that the majority of the cases they deal with involve criminal sexual behavior.

This pretense they’ve adopted trivializes actual sexual violence. No one is naive enough to believe true sexual violence never takes place on campus. Those crimes must be dealt with. But if those crimes affected one in five women on campus, no doubt colleges would respond by taking aggressive, drastic measures to crack down on the scourge, in the same way they’ve responded to the threat posed by the coronavirus. The absence of such a response illustrates that, despite the terrifying numbers routinely thrown around by opponents of due process on campus, colleges do not actually believe—and have never actually believed—that one-quarter to one-third of their female student body will be the victim of a violent crime.

Meanwhile, punishing infractions against the changing norms permanently stigmatizes students who, while they may have transgressed campus codes, never committed anything close to crimes of sexual violence. Under many of the new college consent rules, even the whiny entreaties of a would-be lover are considered so coercive as to negate the other person’s ability to say no. Northwestern University, for example, expelled a student for “sexual assault” because he used “’emotional and verbal coercion,’ apparently because [he] requested sex more than once that evening.” On a similar note, a Title IX training slide at Boston University cites merely “poor communication” between college students as an example of something that can render sex nonconsensual.

College consent rules that operate like this do not jibe with what the average American understands when he or she hears that someone committed—or was victimized by—”sexual violence.” As a result, branding students as campus sex offenders, as if this were truly “sexual violence,” amounts to a death knell for future educational and career prospects, even when the underlying conduct is not remotely criminal.

Occidental College, for example, expelled a student for having sex with a woman who was supposedly too drunk to consent, despite the fact that she texted him before the encounter to ask, “do you have a condom,” and texted another friend, “I’m going to have sex now.”

Brandeis University threw a student off campus and permanently branded him as a sexual offender after his ex-boyfriend complained, among other things, that he occasionally woke him up “by kissing him” and “looked at his private areas when they were showering together.” Brandeis’ special examiner determined that the complaining student “was not strong-willed or forceful enough” to stand up to these supposed onslaughts and condemned the ex-boyfriend for “serious sexual transgressions.”

Meanwhile, the new campus sex rules give college students the message that they cannot be expected to rebuff cajoling or pressure, or to take proper responsibility for choices made under the influence of alcohol. The inflated statistics also make many of them fearful that sexual violence is much more common than it is.

Cui bono?

If colleges want to redefine consent and prohibit large swaths of lawful sexual interactions under their conduct codes, they largely have the right to do so. But now that colleges have responded to a real infectious disease epidemic by fully closing campuses for months on end—though it means losing out on money and instruction time—the scare tactics about the sexual violence epidemic have been exposed for the exaggerations they are. This presents an opportunity to reemphasize the case for due process protections for students who are accused of sexual assault, starting with the Department of Education’s helpful new rules.

It could also present an opportunity for colleges to start being honest about what they are really doing: attempting to redefine sexual norms, not combating an epidemic of violent crime.

Domestic Violence

Anatomy of a Hoax: The Great Coronavirus Abuse Myth of 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335


Anatomy of a Hoax: The Great Coronavirus Abuse Myth of 2020

WASHINGTON / May 29, 2020 – Domestic violence is in retreat in many cities during a time of coronavirus stay-at-home policies, according to reports received from police departments across the nation.

A recent ABC News report documented declines in police calls for domestic violence in Los Angeles and San Francisco on the order of 18%. (1) A similar fall has been reported in New York City (2). The Marshall Project found declines in domestic violence cases in Chicago, IL, Austin, TX, and Chandler, AZ, ranging from 13% to 23%. (3) A fourth analysis found that domestic violence police calls were steady or had decreased in 30 out of 33 localities around the country (4).

But good news may not make for an optimal fund-raising strategy. So domestic violence activists around the country have worked with national and local reporters to publish dozens of headline-grabbing articles that rely on eight strategies that serve to bias, camouflage, and even obfuscate the truth:

  1. Anecdote and conjecture: Articles on this topic follow a predictable script — Open with a shocking abuse tale (which cannot be verified); briefly mention police reports showing a steady or decreasing number of incidents; and then frame these reports as “proof” that the domestic violence problem is spiraling out of control.
  1. Victims as helpless and weak: One New York Times article quotes unnamed “authorities” as saying, “victims were in such close quarters with their abusers that they were unable to call the police.” (5) Considering that a victim can go into the bathroom, turn on the water, and dial 911 — all within a few seconds — this claim lacks plausibility and disempowers victims.
  1. Fabricated numbers: On April 5, the New Mexico Political Report made this claim: “Last week, domestic violence incidents in Bernalillo County reportedly jumped 78 percent.” (6) But when contacted for confirmation, County Undersheriff Larry Koren was unable to confirm anything resembling these numbers.
  1. Fear-engendering language: Articles often utilize fear-provoking terms such as “locked-down,” “trapped,” “horrifying,” and the like. But coronavirus orders allow persons to leave their homes for reasons of health and safety. The Illinois policy, for example, says persons can go outside their residences, “To engage in activities or perform tasks essential to their health and safety, or to the health and safety of their family or household members.” (7)
  1. Front-loading: Police reports of domestic violence typically increase during the Spring months (8). A valid conclusion rests on a comparison of call volume from 2-3 weeks before the imposition of stay-at-home policies in late March or early April, with the numbers immediately afterwards. But many media accounts, such as an NBC News article by Tyler Kingkade (9), include numbers from February, which depress the averages and bias the result.
  1. Vagueness: The Marshall Project article is exemplary because it indicates the time periods being reviewed and provides the actual numbers. This essay is the exception to the rule. Reporters often accept at face value vague claims about a “small decline” or a “tiny uptick.” One article quoted a spokesman for the Des Moines Police Department as saying recent domestic violence calls had been, “garden-variety.” (10)
  1. Sexism: Articles consistently rely on male-as-perpetrator, female-as-victim stereotypes. An article in The Nation opens with this startling claim: “In many households when men are at home, the women are in danger.” (11) None of the articles hint at the reality that according to the Centers for Disease Control, each year there are 4.2 million male victims and 3.5 million female victims of domestic violence (12).
  2. Conclusion by headline: The headlines of many media accounts directly contradict the police reports featured in the article, in many cases. For example, the New York Times reported, “The New York City Police Department said that reports of domestic violence have ‘progressively declined’ since the onset of the pandemic. The crimes fell nearly 15% last month compared to March 2019.” But the headline somehow concluded these declines “might not be a good sign.” (13

Reasons for the steady or reduced number of domestic violence cases vary. Responding to a query from a CEDV staffer, an officer in the Boston Domestic Violence Unit offered this explanation: “Both verbal and aggravated assault are down because people are more focused on good hygiene, their own survival skills and frankly have nowhere to go if they get kicked out of the house (or kick someone out), so they are learning coping skills and learning how to get along with each other by taking walks, etc.”

Commentator Wendy McElroy recently concluded, “The assumption that stay-at-home orders are increasing DV must be questioned because it is deeply flawed.” (14)  Corrine Barraclough reaches a more pointed conclusion: “The myth that domestic violence is surging in lockdown will become one of the biggest lies the gendered narrative leans on for additional funding.” (15)


  12.  Tables 9 and 11.

Press release posted here:

Title IX

The ACLU Sues To Stop Rules That Strengthen Due Process

Plus: The House of Representatives goes virtual, Americans start moving around again, and more…

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.

Title IX

ACLU sells its soul and abandons civil liberties to sue Betsy DeVos


The American Civil Liberties Union has abandoned its mission of defending liberty to become the legal advocacy arm of the Democratic Party.

That might sound like a harsh judgment of the once-venerable civil libertarian organization. It once fought for free speech, for everyone, even neo-Nazis, on the principle that if one person’s civil liberties are in danger, then everyone’s are. The organization used to stand up for the rights of the accused, including the right to the presumption of innocence, even when others used emotion to argue that the guilty have no rights.

Now, the ACLU has descended into political hackery. The organization just sued Education Secretary Betsy DeVos in an attempt to block her department’s efforts to restore due process for those accused of sexual assault on college campuses.

On May 6, DeVos introduced the new rules regarding Title IX and how federally funded colleges and universities must adjudicate sexual assault accusations. Under the Obama administration, these disciplinary proceedings had become kangaroo courts, under heavy pressure from the federal government to expel almost anyone accused and to do it without any semblance of a fair process. Many young men were branded rapists and cast out of their universities, despite having no opportunity to cross-examine their accusers, no access to counsel or the evidence against them, and at times against the wishes of the supposed victim. And of course, they were to be found guilty using the lowest standard of evidence available to conclude a case under our legal system.

DeVos’s reforms changed that. “We can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process,” she said in releasing the new, much fairer guidelines.

DeVos’s new Title IX regulations, which take effect in August, represent an important step toward restoring both fairness for victims and due process for the accused in campus proceedings. She would ensure that all accused students have the right to cross-examine their accusers through an intermediary. After all, the right of the accused to scrutinize and disprove allegations against himself is a central pillar of any fair justice system and plays an important role in the Bill of Rights that the ACLU used to defend.

DeVos’s new rules would also require that universities move away from a single-adjudicator model, where one university staff member both investigates and decides the case.

Also worth noting is the change in policy regarding what sort of incidents the colleges are responsible for. Now, the government will only require schools to adjudicate sexual harassment and assault claims that happen between students on campus or in recognized off-campus affiliated locations, such as fraternities. Incidents that take place off-campus will now be dealt with by the police, such as all other such incidents. This is a salutary example of the department taking victims’ criticism into account and adjusting rules that may have originally excluded locations such as fraternity houses.

The new rule also narrowed the scope of “sexual harassment,” and with good reason. As Reason’s Robby Soave put it, “Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex.”

Importantly, the department’s new regulations would also permit schools to use a “clear and convincing” evidentiary standard instead of the Obama administration’s mere “preponderance of the evidence.”

Under the latter, administrators can rule an accused student guilty with only 51% certainty. Now schools will be able to require something more substantial than “OK, that might have happened” when imposing campus discipline. It is still a much lower standard than the criminal one (beyond a reasonable doubt), but it is much fairer than before.

No student should be expelled and branded a rapist if there’s a 49% chance they’re innocent.

The ACLU is suing the education secretary to block these changes, which safeguard both victims’ rights and due process. It cites the department’s narrower redefinition of sexual harassment, the change to location policy, and the higher burden of proof as its reasons.

This whole backlash is baseless. The ACLU should be singing DeVos’s praises for upholding due process and the rights of the accused — a mainstay of historical ACLU principles.

The organization once fought for the rights of accused criminals to a fair process. It was not anti-victim when the ACLU fought for accused criminals to have the right to an attorney, a fair trial, and the right to cross-examine their accuser. In like manner, DeVos and her colleagues are right to demand exactly the same rights for men accused of rape on college campuses.

Sadly, the ACLU no longer espouses its former belief in civil liberties, and that’s a sad thing. This is only one data point in a series of evidence showing the organization’s slide from being a principled defender of civil liberties to a partisan advocacy group.