“I’d need something more than 50.1 percent confidence to impose that consequence on someone.”
The American Civil Liberties Union reversed course on Title IX, admitting that the controversial Obama-era ordinance on sexual assault cases in universities had a devastating effect on civil liberties and due process.
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Title IX, originally a federal civil right law against discrimination, was expanded under President Barack Obama to require colleges enjoying federal funding to aggressively police certain behaviors associated with social inequality. One immediate impact was that universities by and large lowered the burden of proof in cases of alleged sexual misconduct between students, prejudicing the system in favor of the accuser, at the expense of the accused’s presumption of innocence.
For years critics have argued that the statute deprives male students accused of sexual assault reasonable recourse to defend themselves. They lost the right to a hearing, to requesting an impartial investigation, and to cross-examining their accusers.
(The ensuing crisis was described in detail by KC Johnson and Stuart Taylor Jr.’s harrowing “The Campus Rape Frenzy.”)
We advocate for fair school disciplinary processes that uphold the rights of both parties in campus sexual assault and harassment cases.
Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices.
We strongly oppose it.
— ACLU (@ACLU) November 16, 2018
“There is no reason to weight the scales against complainants in civil disciplinary proceedings, and doing so will predictably result in findings for respondents even where it is more likely than not that the assault took place,” the advocacy group expounded in a blog post, veritably dismissing concerns that the lowered standard of proof has itself tipped the scale.
That stance disappointed many commentators who expected the group to defend due process.
“Should [the ACLU] continue arguing that the presumption of innocence constitutes discrimination against ‘survivors,’ while making college campuses unacceptably dangerous, and should it convince anyone of those arguments, it will steadily weaken its own hard-fought positions in the criminal-justice system,” predicted The Atlantic staff writer Conor Friedersdorf.
But the ACLU has now changed its tune. In a Jan. 30 public comment to DeVos’ proposed revisions to the statute, the group reasserted a commitment to civil rights, even those of the criminally accused.
*Striking* difference in tone b/w @ACLU (single) tweet announcing org's comment on proposed TIX regs & thread responding to the regs. ACLU comment endorses core procedural protections proposed TIX regs seek to establish, abandons earlier implication that due process favors acc'd. pic.twitter.com/sw0HvUHFDt
— KC Johnson (@kcjohnson9) February 2, 2019
“The ACLU supports many of the increased procedural protections required by the Proposed Rule for Title IX grievance proceedings,” the ACLU said.
In one aspirational paragraph, the ACLU tackled head-on the tension heightened by the controversy: Between the desire, especially in the age of #MeToo, to empower victims of sexual assault to come out without fear of stigma on the one hand, and the need to preserve the fundamentals of due process on the other.
Conventional wisdom all too often pits the interests in due process and equal rights against each other, as though all steps to remedy campus sexual violence will lead to deprivations of fair process for the respondent, and robust fair process protections will necessarily disadvantage or deter complainants. There are, however, important ways in which the goals of due process and equality are shared. Both principles seek to ensure that no student — complainant or respondent — is unjustifiably deprived of access to an education. Moreover, both parties (as well as the schools themselves) benefit from disciplinary procedures that are fair, prompt, equitable, and reliable.
But the ACLU still criticized one crucial aspect of DeVos’ changes. While she wanted to establish a “clear and convincing” standard of evidence, which puts the burden of proof on the complainants, the ACLU said it prefers a “preponderance of evidence” approach, which judge both parties on equal footing.
Friedersdorf, who agrees with DeVos, argued that a “preponderance” still leaves it too easy to accuse and condemn male students of sexual assault.
What probability of truth, he asked, should we require in order “to expel a student from college while permanently branding that person a rapist? I’d need something more than 50.1 percent confidence to impose that consequence on someone.”
In the eyes of many critics, the Title IX debate captures the pernicious height of progressivism on elite college campuses. It is the nexus of the left’s eagerness to penalize masculinity and the capitulation of big universities to increasingly-radical interpretations of social justice.
Who can forget Columbia University’s “Mattress Girl” controversy?
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