ACLU bashes Betsy DeVos’ Title IX proposal

The American Civil Liberties Union (ACLU) denounced as “unfair” to survivors of sexual assault newly proposed Title IX policy changes that supporters of those changes say would advance due process for alleged perpetrators.

The ACLU took issue with a Title IX sexual harassment policy proposal, issued by Education Secretary Betsy DeVos on Nov. 16, claiming in an article and a series of tweets that the proposal would “roll back civil rights protections for students.”

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"We advocate for fair school disciplinary processes that uphold the rights of both parties in campus sexual assault and harassment cases. Today, Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it," the ACLU said in a Nov. 16 tweet. 

"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," the ACLU added.

The Fifth Amendment of the U.S. Constitution states that no one shall be "deprived of life, liberty or property without due process of law" by the government, which promises fair procedures in the legal process.

The ACLU, whose stated goal is to defend rights and liberties expressed in the Constitution, claimed in the article that this new proposal “would not further the stated goal of fair process.”  

However, DeVos argued that the new policy promotes due process, stating that “every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”

“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function," she continued.

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The ACLU alleged that, if enacted, the policy changes would favor the accused over accusers in sexual assault cases by giving schools the choice of using the preponderance of evidence standard or the “clear and convincing evidence” standard.

In a court using the preponderance of evidence standard, if over 50 percent of the evidence in a sexual assault case supports the account of the accuser or the accused, the court rules in favor of the accuser or the accused, respectively.

“The preponderance of the evidence standard applies in all other sexual harassment proceedings and should apply here as well,” the ACLU said. “Previous Department of Education guidance adopted that standard of proof. But the new regulation would allow schools to use a ‘clear and convincing evidence’ standard, which favors the respondent by finding against complainants even where it is more likely than not that their account is accurate.”

The ACLU criticized the policy proposal for requiring schools to operate within a stricter definition of “sexual harassment.”

“Schools would need to investigate only reports of ‘unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access’ to education,” the ACLU said. “Departing from earlier Department guidance, under the proposed rule, schools would not have to investigate complaints about 'unwelcome conduct of a sexual nature' that 'limit[s]' but does not 'deny,' a students’ ability to learn.”

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Universities would also be required to act only on reports made to high-level officials at the school and not reports made to resident assistants or teaching assistants.

Campus Reform reached out to the ACLU for further comment but did not receive a response in time for publication.

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