The American Civil Liberties Union (ACLU) is showing no interest in defending due process on college campuses. After the U.S. Department of Education announced new guidelines for how universities should handle Title IX investigations into allegations of sexual assault, the organization that was once the United States’s premier defender of civil liberties did an about-face on due process. They claim the proposed rules to restore due process would make schools less safe for sexual assault survivors.
“[The proposal] 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,” the ACLU tweeted.
By rejecting the new rules for Title IX investigations, the ACLU has come out as an opponent of due process rights on college campuses. This position is blatantly contradictory to their core mission of protecting civil liberties.
The new Title IX rules aren’t inventing rights for the accused, but restoring the fairness that had been denied to those accused of sexual assault or harassment under the old rules. For the ACLU to say the new rules “inappropriately favor the accused” is to ignore how previous rules often stripped accused students and faculty of the ability to defend themselves against accusations.
In 2011, the Obama administration sent out an advisory notice known as the “Dear Colleague” letter, which laid out rules for how sexual assault and harassment should be investigated. The letter mandated that colleges conduct investigations using a preponderance of evidence standard, the lowest evidentiary standard used in legal proceedings. With this standard, Title IX investigators only need to be 51 percent certain of the accused’s guilt to carry out disciplinary action, from suspension to expulsion. The administration also advised university administrators to not allow cross-examination of the accuser — a common principle of criminal justice — as they say it could further traumatize a victim.
The proposed rules make several changes to Title IX investigations. For one, the proposed rules mandate cross-examinations. Too often students under investigation for serious charges were prohibited from challenging their accuser’s claims with their own lawyer or adviser. Complainants still won’t have to face questioning from the actual individual they accused, but a lawyer or adviser for the accused will be able to ask the alleged victim questions. This is necessary for investigators to gauge how credible an accuser’s story is and to test the truthfulness of witnesses’ accounts.
The new rules also allow universities to choose whether to use a preponderance of evidence standard or a clear-and-convincing standard, which requires a higher degree of certainty, often estimated as 75 percent certainty. Neither standard requires the level of proof required in criminal cases, but the clear-and-convincing standard requires a greater burden of proof. Whichever rule a university chooses to use must be used for all investigations, even those not dealing with sexual assault or harassment.
“The new regulation would allow schools to use a ‘clear and convincing evidence’ standard, which favors the respondent by finding against complainants even where it is more likely than not that their account is accurate,” the ACLU claimed.
Yes, the clear and convincing evidence standard is more rigorous, but serious accusations should require serious proof. There’s no doubt that finding the truth in sexual assault cases can be difficult, but this is no reason to lower the bar. A higher standard of proof is used to prevent innocent people from being punished, but the ACLU seems to think this would give the accused the upper hand. This is dismaying from an organization that used to fight for fairness in criminal justice.
It’s troubling that the ACLU has come out against the new guidelines, especially considering the numerous stories where college administrators and Title IX investigators blatantly violated the rights of young men accused of serious offenses. Consider the case of Grant Neal, who was expelled from Colorado State University-Pueblo for supposedly sexually assaulting his girlfriend — even though she denies any assault took place.
Then there was the case of an Amherst College student who was expelled for rape, despite evidence showing his accuser assaulted him while he was blackout drunk. There are countless more stories like this out there, but the ACLU has been largely silent while these students have had their lives destroyed in botched Title IX investigations. Now, they’ve come out against protections for these very students.
The ACLU’s concern for sexual assault victims is laudable, but there is no reason taking allegations of sexual violence seriously means due process rights for the accused must be disregarded. An organization that has defended the free speech rights of neo-Nazis shouldn’t balk at the idea of ensuring due process on college campuses, even for serious accusations. The ACLU’s denouncement of the new Title IX rules is a disappointing chapter in the history of a once-great defender of civil liberties for all.