ACLU Sells Out

[lomiller]

OK, the ACLU was not talking about due process. Which raises the question... why weren't they? Since due process protects civil liberties, and the ACLU is nominally in the business of protecting same, isn't that what they should be talking about?

The ACLU does talk about due process in cases where due process is threatened. There is no due process issue here.

 

[lomiller]

Are there any statements from the ACLU addressing the due process improvements of the new rules? I don't think there are. That is indeed strange.

Since the new rules don’t improve due process such a statement would be more than a little odd.

 

[The Big Dog]

Actual legal experts and Civil rights organization repeatedly declare that ACLU has abandoned protecting civil rights by their opposition to basic and legally required due process protections.

On the other hand, we have a person on the internet declaring, ahem "There is no due process issue here."

Well i for one am convinced.

Off to tell the Cali Supreme Court, the cali Appellate court, the Sixth Circuit and FIRE that there:

"There is no due process issue here."

 

[The Big Dog]

But its not a criminal trial!

Is something we have heard in this thread. Allow me to present an rebuttal:

Even though this should be obvious to any modestly competent lawyer, the desperately insipid have still latched onto this mantra to justify their opposition to basic due process, such as cross-examination of the accuser. And non-lawyers, who could figure this out if they so desired, have seized upon it riding the coattails of woke lawyers. It’s wrong, stupid and must come to a painful, brutal end.

It’s correct that Title IX tribunals aren’t a criminal trial, although that is a reflection of the fact that criminal conduct is being adjudicated on campus by people incompetent to handle such issues and with consequences that are hugely punitive, even if they don’t involve prison. Individual lives are ruined. Families are ruined. Hundreds of thousands of dollars in tuition, or student debt, are forfeited. Futures are crushed. A lifetime of effort and sacrifice lost.

No, it’s not a criminal trial, but it should be. No one should suffer the harsh punishment of Title IX adjudication at the hands of “trauma-informed” humanities profs and admins. That they’ve manufactured at the behest of a bureaucrat a subconstitutional system to harshly punish males without a real criminal trial for real criminal accusations is wrong. Yet, that part doesn’t seem to bother anyone else too much.

But it’s the social justice lawyers, who provide cover for this mantra, that allows this absurd mantra to be perpetuated. “But it’s not a criminal trial” is the cry of the liar or idiot, or perhaps both, but it is a false and nonsensical claim. The minimal rights proposed by the new regulations come nowhere near the rights afforded criminal defendants.

As the article points out, these minor changes that the ACLU opposes are the bare minimum due process protections.

 

[epeeist]

If you want to discuss the ACLU’s position, you need to look at the ACLU’s actual position not what some wack-a-doodle right wing web site “says” that ACLU’s position is.

Since the ACLU’s isn’t addressing victims rights this isn’t relevant.

You are confused. The current rules, the ones the ACLU supports, don’t call for Professors, coaches, etc to “launch an investigation” they require university staff to listen and forward the information to appropriate school officials.

(emphasis added)

I told you, I did read the ACLU statement. As well as criticisms of it from The Atlantic, a criminal defence lawyer's blog, etc. Most criticism I've read has been from the centre or left. Maybe you're referring to a different ACLU statement?

If under the new rules, the professor, coach, etc., tells the complainant that the complainant needs to speak to the appropriate school official, how in the world is that ignoring the complaint?

If you dislike or disagree with it fine, but the ACLU saying that it's ignoring the complaint is ridiculous.

In the child abuse context it is much more important to report allegations even if the victim doesn't want to. But if a competent adult doesn't want to make a formal complaint and start an investigation, shouldn't that be their right? Or contrariwise, if one believes that it is too important to allow victims to decide, well then, doesn't that mean that even if someone doesn't want the police involved they should be even if they don't want it? You can't have it both ways, either it's too important to allow people whether or not to proceed, or you have to give them the choice.

One of the examples I referred to (that Emily Yoffe at The Atlantic and others have discussed) is that of a third party who complained and caused an investigation to be launched, and a student expelled, despite the woman he had sex with insisting it had been consensual (and credibly, not diminished capacity or threats or violence or anything like that).

 

[Brainster]

At this point you have to wonder if the ACLU would support the right of neo-Nazis to march in Skokie.

 

[lomiller]

I told you, I did read the ACLU statement.

And apparently decided they were lying based on what someone said in an op-ed.

If you have some actual evidence the ACLU is lying when it says the new rule only requires the school to take action if the complaint is addressed to specific high ranking staff then by all means present it, but don’t just wave your hands around and insist it must be so because that’s what someone said it on the internet.

 

[Chris_Halkides]

career capital punishment

From the ACLU blog: "The customary standard of proof for civil proceedings, where both sides have something to lose and there is no reason to favor one side over the other, requires proof by a preponderance of the evidence, which is more than 50 percent." link

Many, including the ACLU, have argued in favor of the preponderance standard, and the 2011 Dear Colleague letter mandated it. Although this is the standard that is used in most civil proceedings, civil proceedings have subpoenas, discovery, and cross-examination. There are many examples of lack of discovery in the post-2011 Title IX proceedings, and the 2011 Dear Colleague letter strongly discouraged cross-examination. IMO one should not design a new system as if one were a customer in a cafeteria, where one picks one attribute of the civil or criminal justice system (the standard of proof) and exports it to colleges and universities while ignoring everything else.

This brings me to another problem with the position taken by ACLU. They discuss the question of the right standard of proof, but this is not the only, or even IMO the worst problem in the present system. The ACLU does not address these deficiencies, such as the lack of the right to cross-examine witnesses. Yet observers (including some right-leaning centrists and some left-leaning centrists) have been pointing these problems out for years. There are now over one hundred successful lawsuits brought by those found "responsible" in Title IX proceedings. Perhaps the ACLU has some lawyers who could study these decisions...

Do both sides really have "something to lose?" The accuser is not penalized if the accused is found non responsible. However as one anonymous college president was quoted (in The Economist) these proceedings have the power to impose "career capital punishment."

 

[tyr_13]

From the ACLU blog: "The customary standard of proof for civil proceedings, where both sides have something to lose and there is no reason to favor one side over the other, requires proof by a preponderance of the evidence, which is more than 50 percent." link

Many, including the ACLU, have argued in favor of the preponderance standard, and the 2011 Dear Colleague letter mandated it. Although this is the standard that is used in most civil proceedings, civil proceedings have subpoenas, discovery, and cross-examination. There are many examples of lack of discovery in the post-2011 Title IX proceedings, and the 2011 Dear Colleague letter strongly discouraged cross-examination. IMO one should not design a new system as if one were a customer in a cafeteria, where one picks one attribute of the civil or criminal justice system (the standard of proof) and exports it to colleges and universities while ignoring everything else.

This brings me to another problem with the position taken by ACLU. They discuss the question of the right standard of proof, but this is not the only, or even IMO the worst problem in the present system. The ACLU does not address these deficiencies, such as the lack of the right to cross-examine witnesses. Yet observers (including some right-leaning centrists and some left-leaning centrists) have been pointing these problems out for years. There are now over one hundred successful lawsuits brought by those found "responsible" in Title IX proceedings. Perhaps the ACLU has some lawyers who could study these decisions...

Do both sides really have "something to lose?" The accuser is not penalized if the accused is found non responsible. However as one anonymous college president was quoted (in The Economist) these proceedings have the power to impose "career capital punishment."

Thank you for a thoughtful analysis that doesn't rest on straw men of the ACLU's statements.

It's easy to miss, but there are parts of the changes that the ACLU lumps in with the good parts of the old guidelines, indicating that they at the very least don't object to them (and I'd argue it indicates they agree with them based on placement).

I don't think the ACLU statement means the only thing they are concerned with here is which standard of evidence to use.

I've had many criticisms in the past of the old guidelines, but more often with the implementation. In many of the cases where I had at first attributed poor process with the guidelines, it turned out it was a problem of implementation. Now granted at one level that's still an issue with the guidelines not being optimized in ways that remove those points of failure, but it's impossible to dictate all of it to schools.

Thus it's useful to separate out what are problems with the guidelines, which are from implementation, and which are societal. I've never thought much of the argument that because the accusation is looked at harshly by society (both to the person making the accusation and person being accused) that the process needs to be different from every other accusation. Colleges and Universities, and some organizations or other programs, have the problem of acting in some limited ways 'in loco parentis' (or in more extreme ways with some organizations). However, the level of harm that should be considered when determining the standards of evidence to use should be those actually within the power of the organization to administer, not what other people might conclude and do because of the organization's findings.

I am at a loss at how to ensure that colleges and universities take these issues more seriously, but there are so many factors driving the minimum be done to investigate and such that I don't know exactly where to start.

I've held back from talking about my view of these changes to focus on some of the truly silly accusations directed at the ACLU, but I do think that in a couple of ways the new guidelines are improvements, but I also share many of the ACLU criticisms. Specifically not requiring investigation if reported to the 'wrong' employee. I would expect US college and university employees to be held to at least the standard of Wal-Mart employees.

 

[lomiller]

This brings me to another problem with the position taken by ACLU. They discuss the question of the right standard of proof, but this is not the only, or even IMO the worst problem in the present system. The ACLU does not address these deficiencies, such as the lack of the right to cross-examine witnesses.

While this isn’t a criminal proceeding it isn’t a civil proceeding either, it’s an administrative proceeding. It’s not held before a judge that can enforce contempt of court charges against someone who misbehaves, it’s typically not argued out by lawyers and often involves people that are considered too emotionally immature to drink.

While direct cross examination is the norm in criminal and civil cases presented to a judges, there can be many reasons why it’s unsuitable for administrative processes and many examples of administrative procedures that don’t include it. There are other things the school has interest in as well, but one of their primary concerns is conflict resolution. Allowing emotional 18-year-old kids to attack each other in the form of cross examination is likely to escalate the conflict rather than resolve it.

The due process requirement under US law is not “cross examination” it’s that the proceeding be fair, and fairness is context sensitive. In this context it should mean that the school has a duty to be fair to both sides. This would need to include a mechanism to get to the bottom of both stories, but that doesn’t need to include direct cross examination, which as I outlined above undermines one of the main things the school is trying to achieve.

There are now over one hundred successful lawsuits brought by those found "responsible" in Title IX proceedings.

As already noted above, this the ACLU does acknowledge room for improvement, and even acknowledges that some of the new rules are improvements. It’s arguing that overall these rules make things less fair because the negatives far outweigh the positives, and mostly the rules appear to be aimed at absolving universities of responsibility rather than getting better, more fair handling of these cases.

Do both sides really have "something to lose?" The accuser is not penalized if the accused is found non responsible. However as one anonymous college president was quoted (in The Economist) these proceedings have the power to impose "career capital punishment."

This is false on both counts. If the school decides against them the accuser could be subject to further harassment and may be forced to continue attending classes with people who sexually assaulted them. This is arguably more than the accused stands to lose.

The contention that this is “career capital punishment” is also false. Other than forwarding the case to the police for a criminal investigation the most serious thing the school can do is expel. Going to a specific university is not a right, nor does expulsion necessarily prevent going to another school or continuing on to that career though other means.

The victim may also face this very situation themselves, because finding against someone who was actually sexually assaulted or is being sexually harassed may now have no other recourse but to change schools or give up on their preferred path to their desired career.

 

[lomiller]

I've had many criticisms in the past of the old guidelines, but more often with the implementation. In many of the cases where I had at first attributed poor process with the guidelines, it turned out it was a problem of implementation. Now granted at one level that's still an issue with the guidelines not being optimized in ways that remove those points of failure, but it's impossible to dictate all of it to schools.

Perhaps not the only issue, but some schools seem to have taken a zero tolerance approach or an approach that says the accused must prove their innocence. Nothing in in the ACLU statement suggests they support this, and in fact it runs directly counter to the preponderance of the evidence standard the ACLU is supporting.

The overall picture is that the ACUL supports a process that doesn’t give either side preference over the other, so presumably new rules that required schools to give preference to the accuser would similarly be criticized.

 

[The Big Dog]

Is something we have heard in this thread. Allow me to present an rebuttal:



But it’s the social justice lawyers, who provide cover for this mantra, that allows this absurd mantra to be perpetuated. “But it’s not a criminal trial” is the cry of the liar or idiot, or perhaps both, but it is a false and nonsensical claim. The minimal rights proposed by the new regulations come nowhere near the rights afforded criminal defendants.

As the article points out, these minor changes that the ACLU opposes are the bare minimum due process protections.

While this isn’t a criminal proceeding it isn’t a civil proceeding either, it’s an administrative proceeding.

Oy vey.... Please read something, anything for once??

 

[lomiller]

Oy vey.... Please read something, anything for once??

I read your entire post and responded to it.

 

[Chris_Halkides]

Some problems with the present system

{1}While this isn’t a criminal proceeding it isn’t a civil proceeding either, it’s an administrative proceeding. It’s not held before a judge that can enforce contempt of court charges against someone who misbehaves, it’s typically not argued out by lawyers and often involves people that are considered too emotionally immature to drink.

{2} While direct cross examination is the norm in criminal and civil cases presented to a judges, there can be many reasons why it’s unsuitable for administrative processes and many examples of administrative procedures that don’t include it. There are other things the school has interest in as well, but one of their primary concerns is conflict resolution. Allowing emotional 18-year-old kids to attack each other in the form of cross examination is likely to escalate the conflict rather than resolve it.

{3}The due process requirement under US law is not “cross examination” it’s that the proceeding be fair, and fairness is context sensitive. In this context it should mean that the school has a duty to be fair to both sides. This would need to include a mechanism to get to the bottom of both stories, but that doesn’t need to include direct cross examination, which as I outlined above undermines one of the main things the school is trying to achieve.




As already noted above, this the ACLU does acknowledge room for improvement, and even acknowledges that some of the new rules are improvements. It’s arguing that overall these rules make things less fair because the negatives far outweigh the positives, and mostly the rules appear to be aimed at absolving universities of responsibility rather than getting better, more fair handling of these cases.


This is false on both counts. {4}If the school decides against them the accuser could be subject to further harassment and may be forced to continue attending classes with people who sexually assaulted them. This is arguably more than the accused stands to lose.

{5}The contention that this is “career capital punishment” is also false. Other than forwarding the case to the police for a criminal investigation the most serious thing the school can do is expel. Going to a specific university is not a right, nor does expulsion necessarily prevent going to another school or continuing on to that career though other means.

The victim may also face this very situation themselves, because finding against someone who was actually sexually assaulted or is being sexually harassed may now have no other recourse but to change schools or give up on their preferred path to their desired career.

{numbering mine}
1. If I understand the recent court decisions concerning Title IX proceedings correctly, there is still some sort of due process needed. Or putting it another way, the nature of the proceeding does not obliterate the need for any kind of due process.

2. There is a very simple solution to this, namely to let the cross-examination be done by a lawyer. Yet some schools have expressly forbidden the active participation of lawyers in these proceedings. One might think that the ACLU could find the time to mention this. One might also ponder how fair it is to the accused (who as you pointed out may not be of legal age to drink) to defend himself or herself when the accusations are being presented by adults holding professional positions.

3. Cross examination is universally regarded as being among the best inventions to obtain the truth in adversarial proceedings. Moreover, some schools have shown themselves to be indifferent (even hostile) to exculpatory information that they did not turn up but should have. I would cite the Amherst case as being especially egregious in this regard. There was also a case at Brown involving text messages not sought by the investigator (Johnson and Taylor, p. 256). Given these examples, there is no reason to believe that all such investigations are fairly and competently investigated. The ACLU paid lip service to a 2001 DOE guidance, but failed to address in a direct way the shortcomings of the post-2011 system.

Under the present system, there are instances in which third parties initiated the investigation, against the statements of the two parties who were sexually involved. IIRC this problem has been mentioned upthread.

4. Even prior to the hearing, some schools separate the accused and accuser, sometimes in ways that harm the accused (See Johnson and Taylor's book). If after the hearing the accused is found not responsible, then it means that the preponderance of evidence is that they did not commit the offense. I see no harm in offering counseling to the accuser, nor do I see harm in rearranging class schedules in ways that are not unreasonable.

5. There are several reasons why an expulsion might become career capital punishment. One is that a student's educational needs might not be met as well or at all at a different school. This is easier to seen with respect to students in graduate or professional school. Two is that a student's career opportunities have been known to be derailed by these proceedings. The circumstances of the Mumphery case are unusual, but other students have lost internships (IIRC this happened with respect to a case at Brandeis University). One student faced deportation to Syria (Johnson and Taylor, p. 94). Three is that if other schools find out about why the student was expelled, then they are unlikely to admit that student. In some instances how a school found out is unclear. There have been moves to mandate marking student transcripts with a finding of "responsibility," which is highly likely to prevent these students from attending any college. Thomas Klocke committed suicide after he was found responsible by proceedings that may have been beset by some of the problems I have touched upon (the fairness of the proceedings is disputed). Johnson and Taylor document some of the emotional and other harms done to individuals found responsible.

I would like to return to the preponderance of the evidence standard one more time. John Villasenor wrote a paper, the principle of which is pertinent to this discussion. "The quantitative results presented herein show that an innocent defendant faces a dramatically increased risk of conviction when tried under the preponderance of the evidence standard as opposed to under the beyond a reasonable doubt standard." The ACLU did not address the problem that more innocent people will be found guilty when the standard is preponderance of the evidence, as opposed to clear and convincing evidence.

 

[epeeist]

And apparently decided they were lying based on what someone said in an op-ed.

If you have some actual evidence the ACLU is lying when it says the new rule only requires the school to take action if the complaint is addressed to specific high ranking staff then by all means present it, but don’t just wave your hands around and insist it must be so because that’s what someone said it on the internet.

No, I decided they were wrong and misleading (I don't say lying because that connotes intent etc.):

"...Require investigation only of complaints brought to specified officials, allowing schools to ignore complaints made to lower-level school employees whom those who experience sexual harassment or assault may know and trust."

I don't see that as ignoring. Hence my multiple examples and questions to which you haven't responded, instead repeatedly spouting off about how I and anyone else who disagrees with you is echoing right-wing op-eds. As if someone isn't allowed to disagree with you or the ACLU from a civil liberties position having nothing to do with left-right per se.

Again, if someone goes to the guy repairing a water fountain with a complaint, how is that choosing to "ignore complaints" if the response is that they tell the person, you need to speak to someone in that office over there instead of me?

And, even if you do think such a person should themselves start the process, every employee must act, well, how does that work with the idea that someone might discuss harassment with someone they know, and not want it to become a formal complaint? You deny the victim that right, you force them to keep silent if they don't want things escalated. Whereas saying, if you want a formal complaint or might want one, go to that office there, is preserving the choice of the person to become a complainant or not.

 

[lomiller]

{numbering mine}
1. If I understand the recent court decisions concerning Title IX proceedings correctly, there is still some sort of due process needed. Or putting it another way, the nature of the proceeding does not obliterate the need for any kind of due process.

The ACLU isn’t opposing due process they are endorsing a specific process where both sides receive equal consideration and treatment. Again the legal requirement for due process is that the proceeding be fair, the ACLU isn’t opposing a fair process they are saying that some of the new rules are unfair because they favor the accused and/or allow the school to ignore complaints.

{numbering mine}
There is a very simple solution to this, namely to let the cross-examination be done by a lawyer.

So you are saying that when someone is sexually assaulted it’s appropriate that they be required to hire a lawyer in order to even have their complaint looked at?

Cross examination is universally regarded as being among the best inventions to obtain the truth in adversarial proceedings.

Like any tool it’s useful in some cases not so useful in others.

{
Moreover, some schools have shown themselves to be indifferent (even hostile) to exculpatory information that they did not turn up but should have

This already runs counter to how the ACLU is suggesting things work

There are several reasons why an expulsion might become career capital punishment.

None of these are fundamental rights, and the victim potentially faces all the same issues and more.

I would like to return to the preponderance of the evidence standard one more time. John Villasenor wrote a paper, the principle of which is pertinent to this discussion. "The quantitative results presented herein show that an innocent defendant faces a dramatically increased risk of conviction when tried under the preponderance of the evidence standard as opposed to under the beyond a reasonable doubt standard." The ACLU did not address the problem that more innocent people will be found guilty when the standard is preponderance of the evidence, as opposed to clear and convincing evidence.

This isn’t a state vs individual situation where protecting the accused from a false conviction is paramount. It’s attempting to resolve harm to one individual vs harm to another and potential harm to many more. A wrong decision either way is a problem. In such cases what’s most important is getting the best decision possible, and that occurs under the preponderance of evidence standard.

 

[Chris_Halkides]

lack of discovery under the present system

{a}So you are saying that when someone is sexually assaulted it’s appropriate that they be required to hire a lawyer in order to even have their complaint looked at?


{b}Like any tool it’s useful in some cases not so useful in others.


{c}This already runs counter to how the ACLU is suggesting things work

{a} I am not sure what you mean. I was referring specifically to cross-examination at the proceedings, not in the investigatory phase. See (vii) at this link.
{b} Do you think that it is useful in Title IX sexual misconduct proceedings?
{c} What the ACLU said was, "It also ensures both parties equal rights to appeal and access to evidence." Their words would carry more weight if they admitted that the present system has been an abject failure by this standard.

 

[tyr_13]

{a} I am not sure what you mean. I was referring specifically to cross-examination at the proceedings, not in the investigatory phase. See (vii) at this link.
{b} Do you think that it is useful in Title IX sexual misconduct proceedings?
{c} What the ACLU said was, "It also ensures both parties equal rights to appeal and access to evidence." Their words would carry more weight if they admitted that the present system has been an abject failure by this standard.

The suggestion that any given statement by the ACLU that is not exhaustive on the topic discredits them somehow seems like a silly standard.

Does your posts here not mentioning the improvements of the current system over the old (as in, the 'current' system requires actually addressing accusations and not just, you know, ignoring them or expelling the accuser and sweeping it under the rug) mean your words should carry less weight? Do they have to use the words 'abject failure'? What if they considered those failures a flaw, even a massive one, but one of implementation?

I'm trying to be generous here, because your words appear to be arguing, 'yes the ACLU technically made a completely valid point but I don't still want to criticize them for it.'

 

[Chris_Halkides]

things said and unsaid

tyr_13,

"The new rule preserves some important protections for respondents from the Department of Education’s 2001 guidance, such as a guarantee of an impartial investigator and the opportunity to present rebuttal evidence. It also ensures both parties equal rights to appeal and access to evidence."

The ACLU should know much more than the average person about procedural rights, and they have plenty of lawyers who are capable of understanding the issues surrounding Title IX proceedings, including a number of successful lawsuits. Given these circumstances, whether or not it is fair to hold them accountable for what they did not say is something about which reasonable people may differ.

There is also what they did say. Let me deal with the issue of access to evidence first. I searched the 2001 document to which the ACLU linked, and I found nothing that indicated a right to the access of evidence turned up in the investigation, only to the right to present evidence and call witnesses (one of the bulleted points on page 20). Under these circumstances one is prompted to ask whether the ACLU is only interested in a relative standard (in which access to the evidence is equal between the accuser and the respondent). In other words perhaps a school that gave neither one any access to the evidence would be sufficient in the ACLU's eyes, because it was equal. What the ACLU should have done is to state how much access each party should have (I favor the principle of open access). Upon rereading the statement from the ACLU, I am now uncertain as to the meaning of "it" in the final sentence above. Perhaps the antecedent was the new rules, not (as I first thought) the 2001 letter.

With respect to the best standard of proof (preponderance vs. clear and convincing), the ACLU ignored the problem of lack of subpoena power among other problems in these proceedings. It ignored the greater number of false findings of responsibility. And it ignored that some civil proceedings do use the clear and convincing standard. In short, they made an assertion but did not address counterarguments.

The ACLU also wrote, "Require investigation only of complaints brought to specified officials, allowing schools to ignore complaints made to lower-level school employees whom those who experience sexual harassment or assault may know and trust." What that means in practice is that if I have a student who comes to me to discuss an incident involving sexual harassment or sexual misconduct, I cannot offer them an opportunity to discuss it in confidence; I must report it.

As an aside, the 2001 guidance document makes me question whether or not the pre-2011 system was as bad as you imply.

 

[The Big Dog]

Fairness was not a characteristic of campus sexual-assault cases under the Obama administration rules, which promoted biases and procedures that favoured accusers and led to hundreds of lawsuits by students who were found guilty after being afforded no reasonable opportunities to defend themselves. As the Foundation for Individual Rights in Education (FIRE) notes, since the Obama rules were promulgated in 2011, ‘approximately 117 federal courts, as well as a number of state courts, have raised concerns about the lack of meaningful procedural protections in campus adjudications’. Opinions criticising the absence of fair procedures ‘were authored by respected judges nominated by Democratic and Republican presidents alike and confirmed by Republican and Democratic Senate majorities’.

https://www.spiked-online.com/2018/11/26/progressives-against-due-process/

Progressives sell out.