The Atlantic: ACLU Declines to Defend Civil Rights

The ACLU came out against a new education department policy that bolsters due process rights for those accused of sexual assault on campus, a moved condemned by the Atlantic.

A column by Connor Friedersdorf of the Atlantic published this week condemns the ACLU for its surprising stance on a new policy that strengthens due process rights for those accused of sexual assault on college campuses.

The policy requires that schools ensure that a fair investigation to students accused of misconduct. Additionally, accused students will now be permitted to cross-examine their alleged victim, as would be their right in a courtroom under the Confrontation Clause of the Sixth Amendment.

“Accusers and students accused of sexual assault must be allowed to cross-examine each other through an adviser or lawyer. The rules require that the live hearings be conducted by a neutral decision maker and conducted with a presumption of innocence,” a New York Times report on the new policy read. “Both parties would have equal access to all the evidence that school investigators use to determine facts of the case, and a chance to appeal decisions.”

In a tweet, the ACLU completely abandoned their dedication to protecting civil liberties. They argued that the new policy makes universities less safe for survivors of sexual misconduct.

“Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it,” the ACLU tweeted. “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. We will continue to support survivors.”

Friedersdorf condemned the ACLU for abandoning the standards of evidence that are required by the Constitution. In a blog post, the storied civil liberties group argued that schools revert back to the lowest standard of proof that is used in the justice system. The “preponderance of the evidence” standard means that it is more than 50 percent likely that the alleged incident took place.

Notice that the ACLU does not merely argue that “a preponderance of the evidence” standard is superior to a “clear and convincing evidence” standard in campus proceedings in which a state school is punishing a student. In the ACLU’s telling, the more onerous standard is so wrongheaded that rules meant to protect against discrimination on the basis of sex ought to forbid even private colleges that take federal money to adopt such a standard. It even asserts that “there is no reason” for the more onerous standard, as if its adherents aren’t motivated by the same concern that presumably causes the ACLU to favor a still more onerous burden of proof in criminal cases: a desire to prevent the wrongful punishment of innocents.

Criminal defense attorney Scott Greenfield had a sharp criticism for the ACLU. “The ACLU cannot love constitutional rights only when it serves to further a cause on behalf of their favored marginalized group, then hate it when it doesn’t, and still be given credit as a voice for civil liberties … Remember, due process ‘inappropriately favors the accused.'”