Emily Yoffe: Reigning in the excesses of Title IX

The ACLU doesn’t object to any of those due-process protections when a person faces criminal charges. Indeed, it favors an even higher burden of proof, “beyond a reasonable doubt,” to find an individual guilty.

But the ACLU opposes the new rules for campuses. “Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it,” the organization stated on Twitter. “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. 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. We will continue to support survivors.”

One line in particular was shocking to civil libertarians: It promotes an unfair process, inappropriately favoring the accused. Since when does the ACLU believe a process that favors the accused is inappropriate or unfair?

Not when a prosecutor believes she has identified a serial rapist, or a mass murderer, or a terrorist. In those instances, it is the ACLU’s enemies who declare that crime is alarmingly high and reason that strong due-process rights therefore make the world unacceptably unsafe. It is the ACLU’s enemies who conflate supporting survivors of violent crime with weakening protections that guard against punishing innocents. Those enemies now have the ACLU’s own words to use against it.

Read: The uncomfortable truth about campus rape policy

Alas, this is not an instance of a rogue tweet. On the ACLU’s website, Emma J. Roth and Shayna Medley articulate their objections to the new rules at length. Compared with the old rules, they “would not further the stated goal of fair process,” they argue. Think what their position means. A college student reports a sexual assault, perhaps saying that she was too drunk to consent to sex, or that she consented to kissing but not to having her breast touched, or that she consented to sex but then withdrew her consent and felt the other party did not stop fast enough.

Under the old rules, a single campus administrator could investigate the claims, bring charges against the accused, and decide at the end of the process whether or not he is guilty. The accused could be denied the ability to review evidence against him; exculpatory evidence could be withheld from him; he would not be able to cross-examine his accuser; and if the investigator decided there was at least a 51 percent chance of his guilt, he could be expelled.

Under the new rules, an investigator must present what she finds to a neutral party. The accused can view the evidence against him, is told about exculpatory evidence, and gets to cross-examine the accuser through a representative. He may be declared guilty if there is “clear and convincing evidence,” not based on a slightly more likely than not standard.