Just when it seemed like American college students facing sexual assault claims might finally enjoy due process protections, the American Civil Liberties
Underminers — oh, sorry, I mean “Union” — (ACLU) filed suit to make sure students didn’t get too many civil liberties or something. Earlier this month, Education Secretary Betsy DeVos issued new rules under Title IX, fighting sexual assault while at the same time extending important due process protections to the accused. Since due process is central to civil liberties, Americans might expect the ACLU to cheer these new rules.
Instead, ACLU Deputy Legal Director Louise Melling responded this way, “See you in court.”
Indeed, the lawsuit filed Thursday claims that “DeVos has discarded decades of [the Department of Education]’s experience addressing sexual harassment and assault by promulgating regulatory provisions that sharply limit educational institutions’ obligations to respond to reports of sexual harassment and assault. If allowed to be implemented at educational institutions nationwide, these provisions will make the promise of equal educational opportunities irrespective of sex even more elusive. This is true for all students, including students of color, LGBTQ students, and students with and without disabilities, in grade school, high school, and higher education.”
This claim is curious since the expansive Title IX efforts launched by the Obama administration’s infamous 2011 “Dear Colleague” letter often resulted in black male students unfairly demonized as “rapists” because they were considered guilty of abusing white women — sometimes even in the teeth of evidence. Due process shouldn’t be a partisan issue, and if anyone should understand that, it’s the ACLU.
Angela Morabito, a spokeswoman for the DOE, told NBC News that the new Title IX rules ensure that “no survivor is brushed aside and no accused student’s guilt is predetermined.”
“The ACLU, which used to defend civil liberties, should be supporting such an approach,” Morabito insisted. “Instead, they’re helping schools trample on basic due process and gut protections for survivors to serve an ideological agenda where the ends justify the means.”
The ACLU is far from alone in this effort. Know Your IX, an advocacy group which sprouted up to help students use the Obama administration’s rules, joined the ACLU in the lawsuit, as did the Council of Parent Attorneys and Advocates, Girls for Gender Equality, and Stop Sexual Assault in Schools, another Title IX advocacy group inspired by the Obama rules.
In other words, the ACLU is carrying water for the very organizations that benefitted from the Obama administration’s unfair sexual assault standard. The Obama administration urged schools to handle sexual assault claims based on the premise that there is a pervasive “rape culture” on college campuses. One in four women would be sexually assaulted in higher education, and colleges could not trust the police to handle these crimes, or so the thinking went. Therefore, the Dear Colleague letter encouraged schools to create a perverse system of campus tribunals that denied due process to the accused on the presumption that anyone accused of sexual assault must be guilty.
Sound familiar? When Christine Blasey Ford (a Democrat) came forward to accuse Kavanaugh of sexually assaulting her decades before his Supreme Court nomination battle, many left-leaning media outlets, activists, and Democrats insisted that Americans should “Believe All Women.” They dismissed the testimony of 200 women who said Kavanaugh always treated them with respect, going back to his high school years. They dismissed the fact that Ford had not reported the incident to anyone — much less the police — and that her story had no corroboration. Instead, they launched a witch hunt against Kavanaugh, and four more accusations — two of them anonymous and each more ridiculous than the last — tarnished the nominee’s reputation.
Yet these politicians and campaigners appeared to turn on a dime when Tara Reade, a former staff assistant to then-Sen. Joe Biden (D-Del.) accused Biden — now the presumptive Democratic nominee for president — of sexual assault. The very politicians who had chanted “Believe All Women” insisted that they believed Joe Biden, even before he publicly denied the allegations! Gov. Gretchen Whitmer (D-Mich.), who had loudly condemned Kavanaugh, even said, “I really resent” having to discuss the claims against Biden.
Mika Brzezinski, co-host of the MSNBC show Morning Joe, insisted that “the media should not apply what seemed to be a Kavanaugh standaard to Joe Biden. The media should not apply the same standard most applied to Judge Kavanaugh to Donald Trump. The media should not apply a Kavanaugh standard to any public figure.” She explicitly rejected “the blanket and absolute standard of simply believing all women.”
“The standard for the media in covering sexual assault allegations needs to be to report the facts, listen to the accuser, and give the accused full due process,” Brzezinski said.
.@morningmika: "The media should not apply what seemed to be a Kavanaugh standard to Joe Biden. The media should not apply the same standard most applied to Judge Kavanaugh to Donald Trump." pic.twitter.com/4Csq5Hms8q
— Townhall.com (@townhallcom) May 1, 2020
If that’s true for the media, it is even more important for colleges and universities. Under the 2011 guidance, schools essentially applied the Kavanaugh standard to students accused of sexual assault. Campus rape tribunals believed accusers and often punished the accused — even when the best evidence contradicted the accusations. Students were routinely denied the right to cross-examine their accusers, the right to present evidence in their defense, and the right to be represented by a lawyer. While schools could not place the accused in prison, their determinations of guilt — even when blatantly false — destroyed students’ lives and reputations.
The ACLU built its reputation by protecting civil liberties for everyone — even defending the free-speech rights of the Ku Klux Klan! But now it seems due process rights for the accused are a bridge too far. God forbid the Trump administration grant civil liberties that the Obama administration denied! No, the ACLU must prop up the cottage industry of Title IX advocacy groups instead.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.