On the road from civil rights organization to, well, what it is today, the ACLU took smallish steps to show its spirit animals and financial backers that it was part of their tribe. First, it shifted from defending free speech in Skokie to defending free speech, but only when the targets were of the proper race, gender or ideological persuasion. It was still good at defending speech, just not for those who made its younger staff, its executive director and its supporters feel icky or outrage.
Then it used its legacy platform as staunch defenders of constitutional rights to make adjustments, modifications and a tweak here and there when the rights at issue served the wrong kind of people. Oh sure, historically, it proudly recognized that rights are defended when the worst among us was challenged, but that was when the ACLU had the stomach for the worst. Now they want to punch them, and to represent them would make their staff and supporters demand puppy rooms.
Still, reporters would turn to the ACLU as the legitimate voice of opposition to government efforts to undermine constitutional rights, even as the ACLU’s response went from defending civil rights to “What about the marginalized victims?” They still supported rights, but not to the point that their beloved identities weren’t guaranteed to win. And since the ACLU didn’t mind the erosion of civil rights, it can be too bad. After all, it’s the ACLU, the defender of civil rights, and they weren’t complaining. Indeed, they were rather gung ho about denying civil rights to bad people because, well, they were bad, obviously.
I’ve chronicled the ACLU’s shift from civil rights defender to social justice advocates, and its abdication of any principled support of civil rights, except when it affected the “right” sort of victim. But now, their journey down the path of prosecutorial progressivism has gone on the attack. No longer is it merely the organization that only defends rights for the right people. No longer does it merely shrug when the right for the wrong crowed are challenged. It has now chosen to take up arms for four organizations dedicated to the deprivation of due process, the presumption of innocence and fundamental fairness for the accused.
Betsy DeVos: “We can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.”
ACLU: See you in court.
The ACLU has instituted suit to enjoin the implementation of the new Title IX regulations.
The suit, filed on behalf of four advocacy groups for people who have been sexually assaulted, including Know Your IX and Girls for Gender Equity, is the first that seeks to block the Education Department’s new provisions before they go into effect on Aug. 14.
“This new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic,” according to the suit, which was filed in U.S. District Court in Maryland by the American Civil Liberties Union and the New York-based law firm Stroock & Stroock & Lavan LLP.
The complaint is replete with the usual hype, that there is a rape epidemic on campus provided rape is defined to be anything the “survivor” decides it is, and sexual assault runs the gamut from “sexual touching” like attempting to hold hands without consent to a tap on the shoulder. The claims are supported with the critical mass of faux studies and, absurdly, the submissions of their clients and allies to the comments on the new regs, as if telling the same stories twice somehow makes them real.
Advocates are concerned that students are “required to jump through hoops” to persuade their schools to even open investigations, Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said Thursday.
By “jump through hoops,” the ACLU complains that college students, putative adults, would be expected to make their complaint to the Title IX coordinator, or any other reporter designated by a college. Of course, nothing prevents a college from designating everyone a mandatory reporter, but even the fact that they don’t have to is jumping through hoops.
On the other hand, as was determined during the comment period, making everyone a mandatory reporter means that a woman who doesn’t want to initiate a complaint will be forced to do so when the person they talk to is constrained to report it upon pain of discharge. In other words, this change was done to protect women’s agency, choice, so they would treated as grown ups rather than infants. Some hoops.
The suit, she said, challenges Title IX regulations that will redefine sexual misconduct in narrower terms — as misconduct “so severe, pervasive and objectively offensive” that it “denies a person equal access to the school’s education program or activity.” (The definition comports with how the Supreme Court regards sexual harassment.)
As anyone familiar with the actual law in Davis v. Monroe County Board of Ed. already realizes, the definition before was invented by DoE bureaucrats in defiance of Supreme Court law, which holds that “”so severe, pervasive and objectively offensive” is the test under the law. The earlier definition, in the disjunctive, was more expansive than the law allowed, an unlawfully broad “redefinition” of what the Supreme Court held. To the extent it applies, it now conforms with the caselaw. And then comes the very ACLU red herring effort to pretend they’re on the side of civil rights here.
But Tabacco Mar argued that it creates a “double standard” for how schools must treat sexual discrimination complaints compared to how they handle allegations of racial, national origin and disability discrimination.
If this bizarre argument leaves you shaking your head, you’re not alone. Aside from Title IX being only about sex discrimination, race being a suspect classification whereas sex is only quasi-suspect, and the Supreme Court applying a different test, these complaints are directed at colleges’ actions rather than the sexual policing of peer students, with male students suffering the punishment.
By this attempt to tie campus sex policing to other forms of discrimination, the ACLU hopes to distract and confuse the unduly passionate from what it’s doing here: trying to eliminate due process for the accused by enjoining the implementation of the new regulations.
The complaint goes on to make other challenges to the regs of similar or worse merit, but the purpose of the action is clear. The ACLU, once the staunch defender of the accused, is now the staunch prosecutor for “victims.” No longer is it satisfied with limiting its efforts to only the “right” sort of person. No longer will it merely offer public opinion in favor of the denial of rights to those it disfavors. It has now affirmatively taken on the cause, in court, of representing those who demand that the accused be denied due process.
On the bright side, the activist organizations represented appear to have no claim to standing.
126. Know Your IX expects the number of calls and training requests to increase further now that the Rule has been released. This requires Advocates for Youth’s Know Your IX project manager to divert core resources to conduct additional trainings, particularly online trainings for national audiences, explaining the Rule and its implications for students wanting to report sexual harassment and assault. Because the challenged provisions reduce schools’ obligations to respond to sexual harassment and assault, Know Your IX must devote increased resources to training, to minimize the risk that some students’ bona fide complaints will be dismissed for failure to meet the challenged provisions’ standards. Moreover, advising each student about their rights to have an education free from sex discrimination, and specifically their rights to accommodations, will be more onerous and time-intensive given that some schools will offer parallel grievance proceedings to handle sexual misconduct complaints that fall outside the Rule’s scope. In addition to planning post-Rule trainings for students, Know Your IX has been working with partners to develop a training for state legislators to discuss proactive measures states can take to protect student survivors’ legal rights as is necessitated by the Rule’s rescission of protections at the federal level.
The argument is that they will be “forced” to take phone calls and give presentations on the new regs, and that will take away time from doing the things they prefer to do, like taking phone calls and giving presentations on the old Dear Colleague letter.