ACLU, The New American Prosecutor

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.

7 thoughts on “ACLU, The New American Prosecutor

  1. Dan

    The ACLU has never been a principled defender of civil rights. At its best, it’s supported the rights it favored, even when they inured to the benefit of awful people–and it’s been a long time indeed since it was at its best.

  2. Miles

    Interesting that the ACLU doesn’t complain of the live hearing or cross-examination provisions, given that their “clients” are vehemently opposed to those and argue that they, more than anything else, will “silence survivors.” Yet, the ACLU does oppose the voluntary “clear and convincing” burden. The ACLU has chosen its tribe, but it’s only willing to be half-pregnant?

    Are they trying to thread the needle? Have their clients forsaken their antagonism to cross?

    1. SHG Post author

      Good questions. I suspect that going directly at live hearings and cross was too great a risk, as there would be instances in the future where they’ll need to take those positions because the accused will be on their fav list, and their arguments here would prove disastrous. And they can accomplish much of the same by their pervasive attack on the regs in the complaint, sufficient to at least delay its implementation until after the next election.

      As for not representing the activists’ other interests, that’s the difference between being represented by lawyers and represented by conflicted activist organizations. Or perhaps they already know there will be others who will commence suit to take on those issues, so they can let them do the lifting.

  3. John Thacker

    For now, their website still has a well-written article from two years ago entitled “‘Victims’ Rights’ Proposals Like Marsy’s Law Undermine Due Process” that is completely at odds with their stance here. Lots of (justified) sweeping rhetoric about the dangers of doing exactly what the ACLU is doing on the subject of these regulations.

    1. SHG Post author

      I was aware of that, although there are some distinctions between Marsy’s law and Title IX that make the analogy a bit too much of a stretch. It’s neither necessary nor sufficiently analogous to make the point. What they are doing here speaks for itself. It needs no bolstering.

  4. Rengit

    “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 suspect classification whereas sex is only quasi-suspect, the Supreme Court applying a different test, these complaints are directed at colleges’ actions rather than the sexual policing of peer students.”

    Not only is your point correct, that all the time in law we use different tests for different situations and classifications, but this was the same argument Catherine Llhamon and OCR made in the original Dear Colleague Letter: the fact that universities (which, it should be noted, had already been pushed to handle sexual assault on campus as a Title IX matter during the late Clinton and Bush administrations) were using a “clear and convincing standard” re: sexual assault on campus reflected a double standard in regard to women’s rights, because in the usual discrimination context of civil rights laws (Title VII, EEOC rules concerning workplace sexual harassment and so forth), a simple preponderance standard applied. OCR made it appear that they were simply bringing this specific area of Title IX into compliance with the rest of civil rights laws, even going so far as to suggest that it was irrational and rooted in discriminatory animus to use any other standard. It is not surprising the ACLU is using this same argument, given that members of the Obama OCR were active within the ACLU during the 2000s.

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