© Mike Theiler / ReutersEducation Secretary Betsy DeVos
By way of background, Title IX is a law that states, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Under President Barack Obama, the Department of Education published a letter setting forth a new interpretation of what colleges had to do to meet their obligations under the statute. Any failure to comply would risk their ability to receive federal funding.
"Universities reacted with panicked over-compliance," argues the Harvard Law professor Jeannie Suk Gersen. "In renewing their attention to the rights of alleged victims of sexual assault, many began to disregard the rights of accused students ... It has become commonplace to deny accused students access to the complaint, evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses."
Emily Yoffe reported on related injustices for The Atlantic. Later, when DeVos was drafting a new rule to supersede the Obama-era approach, Yoffe commented that the Donald Trump administration's proposed guidelines "aren't without their flaws-but they move the policy in a more just direction."
At the time, the ACLU seemed to disagree, vehemently.
The civil-liberties organization published a tweet complaining that DeVos's proposal would "tip the scales" against accusers. "The proposed rule would make schools less safe for survivors of sexual assault and harassment," it said. "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."
At the time I published a critique, "The ACLU Declines to Defend Civil Rights," that asked, "Since when does the ACLU believe a process that favors the accused is inappropriate or unfair?" Many other civil libertarians objected, too.
So I was pleasantly surprised last week to read the more formal, official comment that the ACLU submitted to the Department of Education. As the Brooklyn College professor K. C. Johnson observed, the ACLU's lengthier, more considered statement is strikingly different from its earlier social-media reaction. It encompasses significant criticisms of the new rule, many of which warrant attention.
But on matters of due process, it aligns more closely with the Trump approach than the Obama approach, bolstering rather than weakening vital procedural protections.
"The ACLU supports many of the increased procedural protections required by the Proposed Rule for Title IX grievance proceedings, including the right to a live hearing and an opportunity for cross-examination in the university setting, the opportunity to stay Title IX proceedings in the face of an imminent or ongoing criminal investigation or trial, the right of access to evidence from the investigation, and the right to written decisions carefully addressing the evidence," it states.
It urges a requirement that universities "provide counsel for both parties for the hearing if either party requests counsel." And it questions the ascendant notion that protections for accused students and justice for victims are at odds:
Conventional wisdom all too often pits the interests in due process and equal rights against each other, as though all steps to remedy campus sexual violence will lead to deprivations of fair process for the respondent, and robust fair process protections will necessarily disadvantage or deter complainants. There are, however, important ways in which the goals of due process and equality are shared. Both principles seek to ensure that no student-complainant or respondent-is unjustifiably deprived of access to an education. Moreover, both parties (as well as the schools themselves) benefit from disciplinary procedures that are fair, prompt, equitable, and reliable.
At the same time, the ACLU still objects to the way that the proposed rule grants colleges the discretion to decide whether the burden of proof in sexual-misconduct disciplinary hearings should follow the "preponderance of the evidence" standard, requiring a 50.1 percent chance that the charges are accurate, or a "clear and convincing evidence" standard, a higher burden of proof.
I previously argued against the lower burden of proof.
Read the remaining article here.
CONOR FRIEDERSDORF is a California-based staff writer at The Atlantic,where he focuses on politics and national affairs. He is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.
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