Law & the Courts

The ACLU’s Absurd Title IX Lawsuit

Education Secretary Betsy DeVos on Capitol Hill, March 2018 (Joshua Roberts/Reuters)

That the ACLU is suing the federal government in the hope of altering its due-process standards is not headline news. That the ACLU is suing the federal government in the hope of weakening its due-process standards is headline news for the ages. Once more, the line between parody and reality has been blurred.

The targets of the ACLU’s suit are the Department of Education; its secretary, Betsy DeVos; and its assistant secretary for civil rights, Kenneth Marcus. Their offense? To have made it easier for the accused to defend themselves. As NBC News explains, the changes that Secretary DeVos has spearheaded “effectively bolster the rights of due process for those accused of sexual assault and harassment, allowing for live hearings and cross-examinations” — two elementary provisions that, as NBC notes, were “lacking during the Obama administration to protect all students under Title IX.”

Which, per the ACLU, is a problem. DeVos’s changes, the group claims, will make “it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic.”

Remind us again what the C and the L stand for?

Taken as a whole, the ACLU’s lawsuit provides a veritable master class in precisely the sort of non sequitur–laced thinking that the organization once existed to oppose. It conflates “accuser” with “victim” and thereby assumes guilt as the default position. It presents an emotionally charged list of the negative effects that crime has upon the victimized (“depression, anxiety, and suicidality”), as if this has any bearing on the question of guilt, and as if such consequences do not also attach to the falsely accused. It proposes that the mere existence of rigorous due-process standards represents a boon to criminals and a “gutting” of the attempt to fight depravity. It casts statements in favor of due process as intrinsically callous or as suspiciously pro-wrongdoing. And, inexplicably, it attempts to impress an exogenous and unrelated crisis — the “global pandemic” — into the service of authoritarian thinking. Were the ACLU attempting an impression of a thoughtless law-and-order type, it could not have done a better job.

Indeed, to read the back-and-forth on this topic is to conclude that the ACLU and the federal government have — for the moment, at least — agreed to switch places. Championing her alterations, Betsy DeVos described the current system as tantamount to a “kangaroo court” and insisted that “we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.” Opposing those alterations, the ACLU said that the observation of such elementary American tenets “will have a devastating effect on survivors of sexual harassment and assault and their educations.” Students of American history might be forgiven for looking for the hidden camera.

Its peculiar motivations to one side, the legal argument that the ACLU is advancing is a preposterous one. The ACLU alleges that the regulations DeVos has outlined are “arbitrary and capricious” and violate the Administrative Procedures Act as a result. But, somewhat unusually for this administration, this change was carefully considered and painstakingly constructed. Not only did DeVos wait three years before rolling out her reforms, but she made sure to base them upon well-established precedents, the legal standing of which predates the formation of the United States. The only “arbitrary and capricious” provisions in play here are the ones that are being swept away.

The ACLU also alleges that, by protecting the due-process rights of those who have been accused of sexual assault, the administration is violating Title IX of the Civil Rights Act, which, among other things, guarantees women equal educational opportunities. Or, put another way, the ACLU alleges that unless men who are accused of rape are discriminated against to the point at which their guilt is preordained, women will be unable to enjoy their own legal rights. Once upon a time, this line of argument was repugnant to the ACLU — and to the point at which it was happy to defend the speech rights of neo-Nazis who were explicitly trying to upset minorities. Now, it is not only happy to pick sides, but to pretend that it is doing so in the name of equality.

We’ve never been fans of the ACLU, but at least it once had a purpose. Now, it has become just another progressive interest group, beholden to nothing but the weathervane.


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