ACLU Joins Suit against Trump Administration’s Title IX Changes
[guest post by JVW]
A few days back we cheered the new Title IX guidelines announced by Secretary of Education Betsy DeVos, undoing the great mischief that the Obama Administration had encouraged. I suppose this shouldn’t come as a surprise to me, but the American Civil Liberties Union is joining with a group of plaintiffs in filing a suit to have the new guidelines halted:
The suit, filed on behalf of four advocacy groups for people who have been sexually assaulted, including Know Your IX and Girls for Gender Equity, is the first that seeks to block the Education Department’s new provisions before they go into effect on Aug. 14.
The rules championed by DeVos effectively bolster the rights of due process for those accused of sexual assault and harassment, allowing for live hearings and cross-examinations. It’s what agency officials say was lacking during the Obama administration to protect all students under Title IX, a 1972 law that prohibits gender discrimination, including sexual assault, at schools.
“This new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic,” according to the suit, which was filed in U.S. District Court in Maryland by the American Civil Liberties Union and the New York-based law firm Stroock & Stroock & Lavan LLP.
[. . .]
Advocates are concerned that students are “required to jump through hoops” to persuade their schools to even open investigations, Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said Thursday.
The suit, she said, challenges Title IX regulations that will redefine sexual misconduct in narrower terms — as misconduct “so severe, pervasive and objectively offensive” that it “denies a person equal access to the school’s education program or activity.” (The definition comports with how the Supreme Court regards sexual harassment.)
But Tabacco Mar argued that it creates a “double standard” for how schools must treat sexual discrimination complaints compared to how they handle allegations of racial, national origin and disability discrimination.
In addition, the suit takes issue with how the rule will allow colleges to investigate complaints that are made only through a formal process and to certain officials, as opposed to any school employee. (The rule, however, does permit complaints in K-12 schools to be shared with any employee, which then must trigger an investigation.)
Maybe the ACLU is actually on to something there and the Department of Education needs to encourage schools to tighten up the standards on what constitutes a valid racial, national origin, or disability discrimination claim. But to the degree that the ACLU appears to be advocating for a roll-back of due process protections for the accused, I can’t help but be disappointed.
Now in the centennial of their founding, the ACLU has always been a left-wing organization, with the progressive’s pronounced predilection for fighting on behalf of the underdog. At times they have been willing to stand on principle and take unpopular stances in the name of advancing important civil rights, for example their opposition to the internment of Japanese-Americans during the Second World War or their advocacy for allowing Nazis to hold a public march in Skokie, IL during the 1970s. Over the last third of their existence, however, they have generally chosen to stick with trendy social justice crusades and ignore those instances where it’s their traditional allies on the left who seek to curtail our freedoms. The ACLU has mostly deserted the battlefield where campus speech codes are concerned, forcing groups like the Foundation for Individual Rights in Education to step into the void. They chose to support the alleged right to full contraception coverage promised by Obamacare over the religious freedom of the Little Sisters of the Poor. And now they’ve determined that kangaroo courts under no obligation to follow due process traditions are hunky-dory in their book if it provides feminists with a more secure sense of just retribution for alleged sexual assaults. At a time when the leadership of both major parties has appeared to be lukewarm at best to the Constitution, it’s a shame that the ACLU is so happily frittering away their reputation for protecting everyone’s civil rights, not just the groups in favor with the wokerati.
As for me, I will continue to return all of the mailings they send me in their postage-paid envelopes along with a note informing them that I will never donate to their rotten syndicate, and I will happily tell the canvassers seeking donations in the parking lot of Trader Joe’s to buzz off.
– JVW
“This new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic,” according to the suit, which was filed in U.S. District Court in Maryland by the American Civil Liberties Union and the New York-based law firm Stroock & Stroock & Lavan LLP.
First, how does due process make it harder for victims to continue their educations?
Second, what in the wide, wide wonderful world of sports does a pandemic have to do with federal rule-making vis Title IX?
Ragspierre (d9bec9) — 5/15/2020 @ 6:49 amAdvocates are concerned that students are “required to jump through hoops” to persuade their schools to even open investigations, Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said Thursday.
What does this even mean? Due process has nothing to do with whether authorities can investigate something. If I call the police, or even the mayor, and report a crime, they do not need any particular evidence to “investigate,” which might consist of nothing more than asking some questions.
If a college student complains to someone that she was harrassed or rape, what in the new regulations prevents the college officials from looking into it?
Bored Lawyer (56c962) — 5/15/2020 @ 7:14 amNumber of times the terms “Joe Biden” or “Tara Reade” show up in a search of the ACLU’s website over the past month: zero.
Contrast that with how they treated Brett Kavanaugh.
So yeah, the ACLU really totally supports victim of harassment irrespective of political considerations.
JVW (54fd0b) — 5/15/2020 @ 8:05 amThe Karens had already taken over the ACLU back when I was in law school and that was so long ago that telephones were still attached to wires that went into the wall. My 1L Constitutional Law professor was an ACLU district director. She did not compare well with my Civil Procedure professor who had dog-bite marks on his legs, from the parents of Trump supporters, from when he was working with Thurgood Marshall for civil rights in the South.
nk (1d9030) — 5/15/2020 @ 8:31 amOrganization purporting to defend civil liberties actually working to weaken them…..
Vote Dem in Nov if you wish people like these to have more power over our lives.
harkin (8f4a6f) — 5/15/2020 @ 9:25 amLike the NAACP, the ACLU was once an outfit that had a lot of support from conservatives. The NRA used be tight with the NAACP not all that long ago.
But the slow rot that seems inevitable according to Conquest’s Second Law has certainly taken its toll on both organizations (and many, many more) so that the good they once did is now just a bitter memory.
Ragspierre (d9bec9) — 5/15/2020 @ 9:37 amThe ACLU has officially declared to be what conservatives have accused it of for years. No interest in civil liberties; only pushing the leftist agenda.
NJRob (4d595c) — 5/15/2020 @ 9:41 amThat the ACLU would stand against the rights of the accused and in favor of hanging judges marks the effective end of the organization. It is now JUST a political tool.
Kevin M (ab1c11) — 5/15/2020 @ 9:57 amWhat is stopping these students from going to the police and file a complaint? They could then let the professionals do the investigating, rather than an ad hoc committee of college officials who are not experts in any sort of criminal investigation or law.
Hoi Polloi (dc4124) — 5/15/2020 @ 9:58 am9. Yup.
nk (1d9030) — 5/15/2020 @ 10:02 amIt actually died when they returned the Koch brother’s $20 million contribution. Not because they thought the Koch’s were insincere, but because their Democrat Party masters told them to.
Kevin M (ab1c11) — 5/15/2020 @ 10:03 am@9
A college legitimately can try to control wrongful behavior of its student body that is less than criminal. There is a level of harassment of another student (be it sexual, or you just are picking on the other guy) that a college is entitled to stop. And you don’t need a criminal trial or proof beyond a reasonable doubt to do that.
Same thing happens in, for example, police departments. Police misbehavior can be criminal, but a copy can be disciplined for less than criminal behavior, and less due process is required. A cop that, say, is careless with his firearm (he left a loaded gun unsupervised) is probably not subject to criminal prosecution, but he sure should be disciplined, and warned that repeating it will result in firing.
That said, these sexual harassment cases have taken on an air of persecution, and often are handled by a kangaroo court that has made up its mind before hearing any evidence. Any being expelled for raping a girl is a lot worse for someone than being expelled for, say, cheating on a test.
The answer might be to use outside agencies to review and decide on the most serious allegations, and provide some real due process, similar to a disciplinary hearing, albeit less than a criminal trial
Bored Lawyer (56c962) — 5/15/2020 @ 10:05 amThey could then let the professionals do the investigating, rather than an ad hoc committee of college officials who are not experts in any sort of criminal investigation or law.
Because the real complaint is not about the difficulty of getting an investigation, but about the difficulty of that investigation finding evidence. Police are notorious for wanting evidence. Kangaroo courts and hanging judges not so much.
Kevin M (ab1c11) — 5/15/2020 @ 10:05 amVote Dem in Nov if you wish people like these to have more power over our lives.
Bossy women will always be with us, Mr. harkin, and there’s not much we can do about it. If they don’t get us to eat the apple one way, they’ll find another.
nk (1d9030) — 5/15/2020 @ 10:11 amIt is not against Catholicism to take the pill. It is against Catholicism to take it for birth control but there are other reasons to take it that the Church finds to be legitimate. Little Sisters of the Poor had a bad argument predicated on other people not knowing Church law and their own fear that their employees might lie to them about using NFP when they were using some other form of birth control. It was about an organization trying to control individual behavior and freedom.
Nic (896fdf) — 5/15/2020 @ 12:07 pm‘Manipulative, deceitful, user’: Tara Reade left a trail of aggrieved acquaintances
I told you so! Nyah, nyah, nyah! I told you so!
nk (1d9030) — 5/15/2020 @ 4:14 pmWell, I’ll disagree. It was about an organization being compelled to provide something they had a clear moral objection to providing, based on religion. You might not like the interpretation, but that doesn’t gut their position.
Ragspierre (d9bec9) — 5/15/2020 @ 4:15 pmMaybe the roundheels would like for the Little Sisters of the Poor to pay for the room, too? They should get the money to pay for their contraceptives from their lovers. In advance, like every smart erohw. The most offensive thing for me in that case was the need to raise a religious objection. Everybody should have a right to tell a Samaritan woman at the well to just raise her prices.
nk (1d9030) — 5/15/2020 @ 4:32 pm@17 But they don’t actually have a moral objection to providing it based on Catholic teachings. It’s perfectly permissible to use the pill for PCOS or fibroids or breakthrough bleeding or any other medically indicated non-birthcontrol usage.
@18 See above. the pill is used for other things than slutting around. And the Church approved of those other things usage.
Nic (896fdf) — 5/15/2020 @ 4:51 pmThen it’s the ladies’ fault, not the Sisters’, the feminazis I mean, for framing the question as contraceptives.
Methotrexate, a popular anti-cancer/anti-autoimmune drug, used to be the after-rape drug in emergency rooms, too. Why would a cancer patient or arthritis sufferer wanna go calling it a morning-after pill? (Just for example.)
nk (1d9030) — 5/15/2020 @ 5:05 pmBut they don’t actually have a moral objection to providing it based on Catholic teachings.
Yeah. They did. I don’t understand your argument. I do understand theirs.
Ragspierre (d9bec9) — 5/15/2020 @ 5:19 pmI understand Nic’s argument. The nuns were probably taking the same chemical formulation for menopause, osteoporosis, or chin hairs. It was its potential use as a contraceptive they objected to. But I don’t see how it’s their fault. It was being touted as a contraceptive, it was being used as a contraceptive, it was all about “women’s rights to free contraceptives”. Its other uses were a fig-leaf.
nk (1d9030) — 5/15/2020 @ 5:32 pm@21 The Little Sisters presented an incorrect, though commonly held, idea of what the Church teaches regarding the pill. The Church doesn’t teach that a woman can’t take the pill. The pill is used for a variety of women’s health medical concerns which includes but is not exclusive to birth control. The Church teaches that a woman can take it for PCOS or fibroids or breakthrough bleeding or Endometriosis or for regulation of a severely irregular menstrual cycle or any number of other common issues with a woman’s reproductive system. The Church teaches that a woman cannot take it for birthcontrol, but all other uses are legitimate and permitted by the Church, in which case the fact that it does act as birthcontrol is a Church permitted secondary effect.
It is not the act of taking the pill that is against Church teachings, it is a specific motivation which is and the Little Sisters wanted to control the act because they had a severely non-charitable view of the possible motives of their own work force. So they have argued to harm people with legitimate and Church permissible medical need because they have suspicious minds.
Nic (896fdf) — 5/15/2020 @ 5:48 pmThe Church doesn’t teach that a woman can’t take the pill.
I got that.
It is not the act of taking the pill that is against Church teachings, it is a specific motivation which is and the Little Sisters wanted to control the act because they had a severely non-charitable view of the possible motives of their own work force. So they have argued to harm people with legitimate and Church permissible medical need because they have suspicious minds.
Which is your view. Whatever their level of charity, they had a religiously-based position relative to being compelled to provide a drug.
Ragspierre (d9bec9) — 5/15/2020 @ 6:18 pm@24. Since the Church doesn’t teach that a woman can’t take the pill, the Little Sisters did not have a religiously based position relative to being compelled to provide the drug because they based it on a Church teaching that doesn’t exist.
Nic (896fdf) — 5/15/2020 @ 6:26 pmAccording to you.
Ragspierre (d9bec9) — 5/15/2020 @ 6:30 pmWhatever their level of charity, they had a religiously-based position relative to being compelled to provide a drug.
Kishnevi (3cd3a0) — 5/15/2020 @ 6:55 pmThey were claiming the right to impose their morality on people who were of a different faith.
It’s actually the same as the “wedding cake” cases, with the cake shop owners being the ones who were getting the morality of others imposed on them.
No, Obama was trying to compel them to do what they considered a sin, like Pontius Pilate displaying Roman idols (the emblems of the Legion) in the Temple in Jerusalem as though it were the temple of Saturn in Rome.
nk (1d9030) — 5/15/2020 @ 7:03 pmAnyone trying to parse the Little Sisters of the Poor’s argument to say they didn’t know Catholic doctrine or that they were trying to force their beliefs on others are just trying to make the Sister’s engage in behavior they believe sinful because you don’t support their belief.
Make any excuse you want. That is what it comes down to.
NJRob (139883) — 5/15/2020 @ 7:10 pmRob, you are right. I don’t share their belief that they have the right to force nonCatholics to abide by Catholic dogmas. A belief the Church has been acting on since 325 CE.
Kishnevi (e931a3) — 5/15/2020 @ 7:22 pmIt’s actually the same as the “wedding cake” cases
No. It is SO not anything like those cases.
Ragspierre (d9bec9) — 5/15/2020 @ 7:22 pmGay marriage advocates trying to force their morality on bakers who didn’t accept that morality.
Catholic nuns trying to force their morality on employees who didn’t accept that morality.
Same exact thing.
Kishnevi (e931a3) — 5/15/2020 @ 7:26 pm@26 I mean, it’s the Church’s theology.
@29 I just laid out the Catholic Church’s position in which it is not sinful for a Catholic to take the pill, in and of itself.
Nic (896fdf) — 5/15/2020 @ 7:32 pmKishnevi, you would be closer to being right if the Sisters’ workplace drug policy included testing for the pill. But I don’t think those are the facts of the case. They didn’t fire anyone for taking it — they just did not want to pay for it.
nk (1d9030) — 5/15/2020 @ 7:36 pmGay marriage advocates trying to force their morality on bakers who didn’t accept that morality.
Catholic nuns trying to force their morality on employees who didn’t accept that morality.
Same exact thing.
No. It is NOT. In fact, it’s pretty close to the opposite. First, there is no “force” behind the Little Sisters. All the force was from the government. Start there.
I’m surprised this has you so assbackwards.
Ragspierre (d9bec9) — 5/15/2020 @ 7:40 pm