Olivier Douliery/UPI/Newscom
It's no surprise that victims' rights activists and their allies are furious about the Education Department's proposed changes to Title IX, the federal statute that deals with sex and gender discrimination on campus.
It is surprising, however, to see the American Civil Liberties Union joining in this chorus. The ACLU has long defended the rights of accused terrorists, criminals, neo-Nazis, and the Westboro Baptist Church. The group works tirelessly to protect due process, even for the least sympathetic among us.
And yet the ACLU has condemned the new Title IX rules, declaring on Twitter: "The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence."
I am astonished to see the ACLU take the position that a government policy gives an accused person too many rights, especially when these rights are things the ACLU has generally supported. (In other words, they are not weird new rights invented out of thin air. These are standard protections that regrettably were not applied to campus sexual misconduct adjudication during the Obama years.)
The Title IX reforms were announced Friday morning; they greatly strengthen due process protections for students accused of sexual misconduct, and they relieve colleges of the burden of investigating suggestive speech that should be permissible on free speech grounds.
"The proposed regulation rightly rejects the incredibly overbroad, unconstitutional definition of sexual harassment mandated by [the Office for Civil Rights] in its 2013 'blueprint' for colleges," said Hans Bader, a former Office for Civil Rights lawyer, in an email to Reason.
The Foundation for Individual Rights in Education is also pleased with the proposal. Samantha Harris, a vice president at the group, says "the proposed regulations are a marked improvement over the previous guidance in a number of important ways."
Some feminist groups see matters differently. The activist organization End Rape on Campus has accused DeVos of making campuses "more dangerous" for women. Another activist group, Know Your IX, describes the new rules as "worse than we could have imagined."
Keep in mind that the new rules—while a significant improvement—are not radical. In fact, they adhere to the principles set forth by federal "rape shield" laws, which protect victims from having to discuss their past sexual relationships during adjudication hearings. And while the new rules will indeed mandate cross-examination, they do not mandate direct cross-examination: Attorneys or support persons will do the questioning. This is a detail that many activists have overlooked in their criticism: NARAL made the false claim that DeVos would allow victims to be questioned and "re-traumatized" by their attackers, and Rep. Joe Kennedy (D–Mass.) retweeted it.
I didn't expect an honest appraisal of the new rules from the likes of NARAL. But I did figure the ACLU might appreciate some of the nuances involved here: Protecting women from sexual misconduct is important, but so are liberal principles of justice, fairness, and the presumption of innocence.
The ACLU recently broke with longstanding tradition to oppose the nomination of Brett Kavanaugh to the Supreme Court—and ran ads saying that Kavanaugh's denials of sexual impropriety should be dismissed, since other accused rapists like Bill Cosby and Harvey Weinstein also denied the charges against them. Between that and this, principles of due process and the presumption of innocence seem to be falling off the organization's radar as things that should be defended, at least when the person who needs these protections lacks sympathy from intersectional progressives.
Even on this front, though, the critics of Title IX reform seem to forget that the students who face sexual misconduct adjudication on campus are—as best we can tell—disproportionately men of color and immigrants. Who will speak for them, if not civil liberties organizations?
I've been cautious, and hesitant, and suspicious, when people have argued that the @ACLU is no longer recognizably the ACLU. Starting to thing I was wrong.https://t.co/ozrRk0eBPU — WhatCouldGoWrongHat (@Popehat) November 16, 2018
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