News and Commentary

Title IX

ACLU sells its soul and abandons civil liberties to sue Betsy DeVos The ACLU sells its soul and abandons civil liberties to sue Betsy DeVos >by Brad Polumbo | May 15, 2020 10:43 AM 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

Sharing is caring!


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.