In 2020, the ACLU is fighting to end due process in America

May 15, 2020

How did we get here?

It's all about Title IX, that 1972 law has come under fire since the beginning. A law that was meant to make sure girls could play sports without difficulty and with institutional support has been debated, remade, rewritten and reinterpreted to meet the shifting pressures of universities, the National Collegiate Athletic Association, advocacy groups, and legislators.

The law now comes with a lengthy bibliography of court precedents, updated guidelines, and revisions that were shot down. A letter backed by then Vice President Joe Biden and Secretary of Education Arne Duncan in 2011 established sexual harassment and assault guidelines under Title IX that showed universities, for example, how to handle harassment that may rise to the level of criminality though evidence of crime is not present.

It changed the guidance of how to establish wrongdoing on behalf of the alleged perpetrator from reliance on "clear and convincing" evidence to a "preponderance of the evidence." This meant that instead of an assault being proven, it would only have to be considered likely to have occurred.

In fact, this Dear Colleague Letter, as it is known had only one mention of due process on behalf of the accused. It stated that, "schools should ensure that steps taken to accord due process rights to he alleged perpetrator do not restrict or unnecessarily delay Title IX protections for the complainant."

This letter, in response to the rash of reporting in the years leading up to it about an increase of sexual assaults and acquaintance rapes on campuses, such as the report released by the Center for Public Integrity in 2009, sought redress for the women who were wronged without a clear way to gain justice or safety on campus. While the letter was later withdrawn by the Department of Education under Secretary of Education Betsey DeVos in 2017, the damage was done.

Betsy DeVos and the Department of Education, under the Trump administration, are making an effort to reverse some of these problems and make it possible for those students who are accused, primarily young men, to defend themselves.

DeVos is now seeking to formally revise the damaging terms elucidated in the "Dear Colleague" letter of 2011. While Biden and Duncan had only one mention of due process in their report, DeVos' new revision has over 300.

The purpose of the new rules: "... the Department has determined that current regulations do not provide clear direction for how recipients must respond to allegations of sexual harassment because current regulations do not reference sexual harassment at all.

"Similarly, the Department has determined that Department guidance is insufficient to provide clear direction on this subject because it is not legally enforceable, has created confusion and uncertainty among recipients, and has not adequately advised recipients as to how to uphold Title IX’s non-discrimination mandate while at the same time meeting requirements of constitutional due process and fundamental fairness."

Under the previous guidelines of Title IX, ramifications to the alleged perpetrator were authorized prior to the completion of an investigation, for the purposes of providing safety to the complainant. Biden said that this was meant to "...end the cycle of sexual violence on campus."

This sexual violence, per reporting at the time, included falsified reports and unverified data. Schools and universities were able to take a complaint at face value, and to institute punishments for those who were accused of sexual assault or harassment without doing a full investigation. This was in part to protect the victims, but it did nothing to protect the falsely accused.

Attempts to redefine sexual harassment and assault ended up conflating the two. As the socially acceptable definition of rape expanded to include incidents of next-day regrets and harassment opened up to include microaggressions on social media, the room for false accusations grew.

For many advocacy groups, this was a success. It heralded victims rights, and merged perfectly with the movements to Me Too and Believe All Women. The appearance of justice for those heralded as survivors was more important than justice for the accused. The Title IX interpretations of the last 20 years heavily and intentionally favoured an accuser over the accused, as a way to make up for the previous era's favouring of the accused over the accuser. But neither, of course, is justice.

Presumably, an organization that is interested in defending liberty would be on board with this. But the American Civil Liberties Union finds themselves squarely on the opposite side from justice.

Ria Tabacco Mar, director of the ACLU's Women's Rights Project, said that her concern was that students will be "required to jump through hoops" to get an investigation into their allegations.

The issue is with the revised definition of sexual harassment, which is "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." Title IX violations will be noted if schools are "deliberately indifferent" to this kind of behaviour.

However, the chairman of the Senate education committee, Senator Lamar Alexander (R-Tenn), the chairman of the Senate education committee, had a different take on the new rules

"This final rule respects and supports victims and preserves due process rights for both the victim and the accused," he noted in a statement. "For example, the rule ensures victims get the support they need to change classes or dorms if they allege they have been sexually assaulted or sexually harassed and the rule ensures the victim and the accused get a fair hearing to resolve such allegations."

Ideally, however, it will not be that students have to "jump through hoops," but that allegations are investigated and accusations sorted prior to punishments and consequences being meted out.

It should be pointed out, too, that a college campus is not a court of law; even the universities with the largest infrastructures and bureaucracies are ill-equipped to replace courtrooms where serious allegations of these kinds should be adjudicated.