This week, the American Civil Liberties Union (ACLU) filed a lawsuit against Betsy DeVos and the U.S. Department of Education alleging that the new guidelines for Title IX enforcement would undermine students’ civil rights and “inflict significant harm” on students who file complaints of harassment or assault.
Specifically, the lawsuit argues that DeVos’ new rules violate the Administrative Procedure Act, which outlines the way federal agencies may create and issue regulations (such as requirements for notices of proposed new rules and public comments).
For those who have been following the Title IX rule-making process, it is ironic to see the ACLU appeal to procedure. DeVos’ rules, which followed traditional rule-making guidelines, were a response to the Obama administration’s significant overreach in a 2011 “Dear Colleague” letter—a letter that deliberately subverted the rule-making procedures the ACLU is now accusing the Department of Education under DeVos of violating.
The ACLU, along with the accuser’s rights activist organization KnowYourIX, is arguing that students are being adversely affected by the new rules because “DeVos’ Title IX rule holds survivors of sexual violence to a higher standard than other forms of harassment and discrimination,” such as racial discrimination. The lawsuit challenges the new rules’ allowance for institutions to use the “clear and convincing evidence” standard (established by the U.S. Supreme Court) in cases of harassment or assault, as opposed to the less demanding “preponderance of evidence” standard.
As Robby Soave of Reason notes, the lawsuit uses race “as a cudgel to break apart DeVos’s carefully considered revisions to some Obama-era rule changes.
“The lawsuit frequently notes—as if this is some trump card that should override the new protections—that there is now a different standard for allegations of sex-based discrimination than there is for race-based discrimination on campuses: It would be one thing if the ACLU’s complaint was that due process protections for students accused of racial harassment are insufficient, given the stronger protections for those accused of gender-based harassment. But no: The organization wants the protections to be equally thin.”
This is in spite of the fact that it is precisely male students of color who have been disproportionately denied due process under the old Obama-era Title IX rules.
A spokeswoman for the Department of Education noted the irony, telling NBC News that the ACLU, which has as its mission the protection of civil liberties, was instead “helping schools trample on basic due process and gut protections for survivors to serve an ideological agenda where the ends justify the means.”
It wouldn’t be the first time the ACLU has done this, nor, given the organization’s trajectory in the past few years, will it likely be the last.
Back in 1985, former ACLU member Aaron Wildavsky wrote an essay for The Public Interest, which described his concerns about the organization’s turn toward identity politics and lamented the way this shift in focus undermined civil liberties principles.
More recently, in 2018, former ACLU board member Wendy Kaminer wrote in the Wall Street Journal about the backlash the organization suffered for defending the rights of white supremacists to assemble for a rally in Charlottesville, Virginia after that rally led to the tragic death of a young woman who was run over by one of the white supremacists.
The ACLU altered its policies going forward, arguing that in selecting free speech cases to pursue, it would balance the “impact of the proposed speech and the impact of its suppression.” As Kaminer noted, “Factors like the potential effect of the speech on ‘marginalized communities’ and even on ‘the ACLU’s credibility’ could militate against taking a case.” (It’s worth noting that, perhaps fearing further damage to the brand, the ACLU did not do this publicly but rather behind the scenes via internal memos circulated among its leadership).
They are less reticent now.
Consider the ACLU’s public opposition to the nomination of Brett Kavanaugh to the Supreme Court. In a clearly partisan statement that nevertheless frequently cited its nonpartisan bona fides, the ACLU said it was departing from its usual position of never opposing nominees because of the “extraordinary circumstances” of Kavanaugh’s nomination.
As for Kavanaugh’s right to due process and the fact that the ACLU issued its denunciation before the FBI had even completed its investigation into Ford’s allegations, the ACLU had this to say: “On the basis of Dr. Ford’s credible and powerful testimony, and Judge Kavanaugh’s unpersuasive response, we believe that there was sufficient evidence to oppose as of the completion of the hearing.”
One year after Kavanaugh’s confirmation, the ACLU of Southern California bestowed its Roger Baldwin Courage award on Christine Blasey Ford. Its tweet about the event included the hashtag #webelievesurvivors, a curious choice for an organization that purports not to take sides when it comes to protecting civil liberties (the term “survivor” often used often by victims’ rights groups, presumes the guilt of the accused).
The ACLU apparently takes for granted that Americans view it as an important legacy institution with a reputation for defending civil liberties regardless of one’s partisan preferences or the controversial nature of one’s views. But they shouldn’t. The ACLU’s devotion to wokeness has taken its toll on the brand, and its most recent lawsuit against Betsy DeVos merely confirms this. The ACLU’s slogan is “Because freedom can’t protect itself.” Maybe it, too, should be changed to better reflect the current values of the organization: Civil liberties for me, but not for thee.