It’s not that he isn’t a brilliant lawyer, but that only makes his WaPo op-ed harder to swallow. David Cole, legal director of the ACLU, knows better. It seems impossible that he could make such a rookie mistake as to conflate racial discrimination with sex discrimination on campus.

After all, race is a suspect classification. Sex is not. Sex discrimination is prohibited by Title IX. Racial discrimination is not. There are similarities from 35,000 feet up, but no knowledgeable person would ever, ever, conflate the two in argument. If it happened in a courtroom, the lawyer would get laughed out of the well, on a good day.

On a bad, the judge would rip him a new one for trying to pull the wool over him. And yet, in an op-ed, intended to be read by the general public, David Cole deliberately conflates the two. What other purpose could there be to such a ridiculous comparison than to mislead and deceive? Yet, he does.

The Education Department is charged with enforcing Title IX of the Civil Rights Act, which bans sex discrimination in schools receiving federal funding, but DeVos’s proposed rules would create a systemic double standard: They treat claims of discrimination based on sex fundamentally differently from claims of discrimination based on race — also forbidden under federal law. The Education Department offers no justification whatsoever for the disparities, and while women are, of course, accustomed to such differential treatment, that’s exactly what Title IX was designed to eliminate.

Both prohibitions, which are “forbidden under federal law,” which I put in quotes to note Cole’s cute way of getting around the fact that they are different federal laws,* are directed to the educational institutions. Colleges can’t discriminate. But without mention of this fact, he shifts seamlessly into the entirely distinct issue of punishing students for peer-to-peer accusations, which by a few steps down the slippery slope, have become the bane of a college’s liability.

What Cole is seeking to do is conflate the duty of a college not to discriminate on the basis of race with the second-tier duty of a college not to discriminate on the basis of sex by failure to protect its female students from rapey male students. You would never know this from his op-ed. And yet?

What are these double standards? Let us count the ways.

If he had any intention of being honest, the answer would have been everything, because there is nothing similar about the relevant standard. Granted, calling them “double standards” is, in itself, absurd, since it’s comparing Chevys to oranges, but this was his chance to come clean.

First, under the proposed rules for sexual harassment, schools must investigate only if the harassment is so “severe, pervasive, and objectively offensive” that it effectively “denies” a student equal access to education. Racial harassment, by contrast, need not meet the “severe, pervasive, and objectively offensive” standard and must be responded to if it merely “limits” access to education. Racial harassment need only be “sufficiently serious to deny or limit a student’s ability to participate in or benefit from the recipient’s education programs and activities” to trigger the obligation to respond.

What he neglects to mention, even though it’s been spelled out regularly here, is that the Supreme Court has created the standard, not the Department of Education. That the ACLU, in its comments to the proposed rules, has already made its argument that the Supreme Court is wrong and the DoE should water down its definition for the sake of “survivors,” makes it unsurprising that the ACLU persists.

What is surprising is that Cole would present this so dishonestly, as a double standard and as if the DoE invented the standard rather than accepted the Supreme Court’s express language rather than the bastardization imposed by the prior administration’s bureaucrats.

Plus, there’s one additional sleight of hand in there that warrants mention, that schools “must only” investigate if it meets the legal definition. That’s the floor of the requirement, not the ceiling. It’s the least colleges can do, not the most, which is left to the school’s discretion. Or is it?

Second, DeVos’s proposed rules would affirmatively forbid schools even from investigating complaints of sexual harassment unless they immediately met the “severe, pervasive, and objectively offensive” threshold. If they don’t, the schools would have to dismiss the complaint without investigating — even though investigation would often be necessary to assess whether harassment was “severe, pervasive, and objectively offensive.” No such bar on investigating complaints of racial harassment exists. Schools are free to investigate as they wish.

Well, that certainly sounds like a terrible Catch-22, although a wag might ask, “Wait, where does it say that?” No quoted language. No cite. Not even a link. The reason is that it doesn’t exist. What does exist is that schools cannot issue a formal complaint against an accused, and only then conduct a compulsory investigation, where the complaint made by the accuser fails to satisfy the standard.

In other words, if the unchallenged accusation that would commence a prosecution fails to meet the standard, say a woman complains “he looked at me funny,” the college cannot commence formal disciplinary proceedings against him, which initiate the requisite “investigation.” They can’t put a male student through the wringer of an inquisitorial investigation in the absence of a viable accusation.

If one has to draw an analogy, it’s like a criminal prosecution that lacks even probable cause. You can’t prosecute a person for a non-crime or a crime for which no evidence exists that he committed it. Can you imagine?

Third, while schools are required to investigate all claims of racial harassment of which they know or reasonably should have known, under DeVos’s proposed rules, universities need only respond to sexual harassment if a student files a formal complaint with a handful of specified school officials. If the student tells another faculty member of sexual harassment, or if the university learns of it through another student, it need not respond.

The question here is whether colleges are liable to lose federal funding for failure to investigate a claim of sexual harassment, not whether they can expand the reach in any direction they choose. Unlike peer-to-peer claims of sexual harassment, claims of racial discrimination relate to what the college did to a student.

Here, it’s what a male student did to a female student. Colleges can accept complaints in any way, and through any route, they choose. They just can’t be held liable for loss of federal funding unless the accuser uses the proper official channels, which the same rules require be made clearly known and available to students.

This op-ed would fall into the banal category of disinformation by “survivor” advocates that have become pervasive over the past few years, and particularly during the comment period for the proposed DoE rules. Had that been all there was, it would be shrugged off as more deceptive propoganda, of which there is no shortage.

But this op-ed bears the name of David Cole, legal director of the ACLU, and he’s not merely a brilliant lawyer, but a lawyer who, I had hoped, still maintained a meaningful grasp of the Constitution and law, even as his organization forfeited its integrity by limiting its functions to only those whose marginalized identities had the social justice seal of approval. With this op-ed, he has crushed my hope that he would be the one ACLU lawyer who, at least deep within, still cared about principle. By putting his name to this delliberately deceptive drivel, he sold out.

*Racial discrimination is prohibited by Title VI.