Home / Blog / Article


November 30 2018

ACLU Reveals Itself No Longer Champion of Due Process in Response to New Campus Sexual Assault Guidelines

by Charlotte Hays

Quote of the Day:

In short, after spending seven years ignoring myriad and severe due-process deprivations on campus, the ACLU resorted to unlikely hypotheticals to criticize the proposed remedy.

--KC Johnson and Stuart Taylor in the Weekly Standard

The American Civil Liberties Union, once a champion of due process, remained mum when Obama-era guidance for handling sexual misconduct accusations on campus eroded the right of due process for the accused.

Twenty-eight members of the Harvard Law faculty, many prominent liberals and feminists, criticized the erosion of due process for the accused as embodied in Obama-era procedures for adjudicating such accusations on campus. The ACLU said nary aword.

In lawsuits, 117 court decisions have held that the rights of the accused who were convicted in campus tribunals under 2011 Obama Ed Department guidelines were violated. No response from the ACLU.

What made the former stalwart of due process at last speak up?

The old liberal warhorse finally regained its voice when Education Secretary Betsy DeVos issued new directives on campus sexual accusations aimed at restoring due process to the accused.

The guidelines are hardly radical (as an editorial in the Wall Street Journal made clear):

The centerpiece of the proposed regulations is—hold your fire—restoring the right of cross-examination, one of the oldest and most hallowed elements of due process.

The Obama Department of Education, responding to legitimate concerns about sexual abuse on campus, issued guidelines that went overboard, casting away many basic protections for the accused. The result has subjected victims and the accused to a system of campus justice often controlled by amateurs and political activists.

This was too much for the ACLU.  

Yep, the old, liberal warhorse came out against the restoration of due process, declaring in a twitter thread that the new guidance are  “inappropriately favoring the accused.” Folks, this is the ACLU!

KC Johnson and Stuart Taylor observe in the Weekly Standard ("The ACLU's J'Acuse"):

The organization finally broke its silence on November 16, after Education Secretary Betsy DeVos proposed new regulations on campus sexual misconduct designed to make campus procedures fairer to both parties. In an inflammatory Twitter thread, the ACLU described the new regulations as “inappropriately favoring the accused.”

It was a broad attack, and the ACLU did not exempt the fundamental protections that DeVos’s effort is designed to restore—the right of accused students to be presumed innocent; the right of accusers and accused alike to cross-examine witnesses through a lawyer or an advocate; and the right of the accused to examine all the evidence uncovered in the campus investigation and all the materials used to train campus adjudicators. The thread closed with a promise: “We will continue to support survivors.”
 

We all should support survivors.

But it is important to determine whether the accusations are true and the accuser is in fact a victim.

Unpleasant as it is to acknowledge, there are sometimes false accusations.

We all know how hard it is for a woman to lodge an accusation that she has been sexually abused, but that doesn't mean that we can deny due process, a cornerstone of western jurisprudence, to the accused.

Due process is the last hope of the falsely accused.

The ACLU used to know this.

A mere two hours after the new guidance came out, the ACCLU issued an analysis by Emma J. Roth, a fellow at the ACLU’s Women’s Rights Project, and Shayna Medley, a fellow at its LGBT & HIV Project. Among other things, they were critical that the new guidelines adopt the Supreme Court's definition of sexual harassment, as opposed to more ambiguous standards now commonly used.

The Obama-era guidelines led to a court stating that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature,’ ” including “verbal.” Even a prude like me can see perils in such a broad definition.

Johnson and Taylor conclude:

As the Washington Post’s Radley Balko observed after the group’s Twitter attack, “The ACLU still does some great work. But damn is it ever disappointing to see this organization, with all its history, use the phrase ‘inappropriately favoring the accused.’ ” Whatever the merits or flaws of the rest of the ACLU’s activities, it has become an adversary of due process and free speech on campus.

Read the entire article.



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
Follow us