Links - 23rd August 2019 (3) (ACLU)

The ACLU Condemns DeVos’s Title IX Reforms, Says These Due Process Safeguards ‘Inappropriately Favor the Accused’ - "It's no surprise that victims' rights activists and their allies are furious about the Education Department's proposed changes to Title IX, the federal statute that deals with sex and gender discrimination on campus.It is surprising, however, to see the American Civil Liberties Union joining in this chorus. The ACLU has long defended the rights of accused terrorists, criminals, neo-Nazis, and the Westboro Baptist Church. The group works tirelessly to protect due process, even for the least sympathetic among us... I am astonished to see the ACLU take the position that a government policy gives an accused person too many rights, especially when these rights are things the ACLU has generally supported. (In other words, they are not weird new rights invented out of thin air. These are standard protections that regrettably were not applied to campus sexual misconduct adjudication during the Obama years.)... The ACLU recently broke with longstanding tradition to oppose the nomination of Brett Kavanaugh to the Supreme Court—and ran ads saying that Kavanaugh's denials of sexual impropriety should be dismissed, since other accused rapists like Bill Cosby and Harvey Weinstein also denied the charges against them. Between that and this, principles of due process and the presumption of innocence seem to be falling off the organization's radar as things that should be defended, at least when the person who needs these protections lacks sympathy from intersectional progressives. Even on this front, though, the critics of Title IX reform seem to forget that the students who face sexual misconduct adjudication on campus are—as best we can tell—disproportionately men of color and immigrants. Who will speak for them, if not civil liberties organizations?"
The ACLU got taken over by liberals, so due process is something Nazis support

Title IX: The Civil Rights the ACLU Won't Defend - "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... 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."

Betsy DeVos’s Title IX Rules Highlight How Bad Campus Kangaroo Courts Have Become - "the rules will not only require colleges to permit cross-examination of witnesses (including the accuser), but will also prohibit universities from relying on the statements of any witness who refuses to submit to cross-examination.Cross-examination is so fundamental to adversary proceedings that it’s is simply incredible that some universities have been prosecuting and expelling students without permitting the accused’s representative to question his accuser. Prohibiting cross-examination irrevocably stacks the deck against the accused. The Supreme Court has rightly called cross-examination “the greatest legal engine ever invented for discovery of the truth.”... "Not only did some schools deny cross-examination, but they also denied the accused access to the relevant evidence in his case, including exculpatory evidence?” Yes, they did deny access to evidence. It wasn’t uncommon for accused students to walk into hearings with only a cursory understanding of the charges against them and partial access to evidence, and then have to respond — on the fly — without access to any legal help. Yes, the kangaroo courts could be that bad... The rules also dispense with the single investigator/adjudicator model that allowed universities to place a single person in the position of investigator, prosecutor, and adjudicator. There were no safeguards against bias. Again, this requirement is so basic that it’s simply stunning that it has to be articulated. In a crucial change, the proposed rules protect the First Amendment by significantly tightening the definition of some forms of sexual misconduct. As Reason’s Robby Soave explains, “Under the previous system, administrators were obliged to investigate any unwanted conduct of a sexual nature, which is a fairly wide swath of behavior. Some officials even interpreted this to include mundane speech that happened to involve gender or sex.”The new proposed rules, by contrast, apply controlling language from the Supreme Court to define sexual harassment as sexual assault, quid pro quo harassment, and “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Through this change, the DOE finally conforms its harassment definition to the language of Davis v. Monroe County Board of Education, a case that defined the standard for peer-on-peer hostile-environment sexual harassment... The old-school ACLU knew there was no contradiction between defending due process and “supporting survivors.” Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a “survivor” of a profound injustice. I hate to use arguments that sound remotely like “arc of history” determinism, but the college procedures DeVos is abolishing were so manifestly unfair and prone to grotesque abuse that they were not sustainable. Courts by the dozens — and judges from across the ideological spectrum — were ruling against universities, sometimes with the strongest of words. If the Department of Education didn’t make systematic changes, courts were going to force its hand — case by agonizing case."

The ACLU And The Zombie Apologists - ""If your support of due process is contingent on your sympathies for accuser or accused, then you do not support due process or the Constitution."... Remember, due process “inappropriately favors the accused.” Those four words are the ACLU’s epitaph."

Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech - "The American Civil Liberties Union will weigh its interest in protecting the First Amendment against its other commitments to social justice, racial equality, and women's rights, given the possibility that offensive speech might undermine ACLU goals."Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed," wrote ACLU staffers in a confidential memo obtained by former board member Wendy Kaminer.It's hard to see this as anything other than a cowardly retreat from a full-throated defense of the First Amendment... The memo also makes clear that the ACLU has zero interest in defending First Amendment rights in conjunction with Second Amendment rights. If controversial speakers intend to carry weapons, the ACLU "will generally not represent them."... Kaminer, though, sees the memo as yet more evidence that the ACLU "has already lost its zeal for vigorously defending the speech it hates."... Kaminer notes that the ACLU is of course free to change its position on free speech—but it should own up to this evolution... It seems fairly clear to me what's happening here. Leadership would probably like the ACLU to remain a pro-First Amendment organization, but they would also like to remain in good standing with their progressive allies. Unfortunately, young progressives are increasingly hostile to free speech, which they view as synonymous with racist hate speech. Speech that impugns marginalized persons is not speech at all, in their view, but violence. This is why a student Black Lives Matter group shut down an ACLU event at the College of William & Mary last year, chanting "liberalism is white supremacy" and "the revolution will not uphold the Constitution." Campus activism is illiberal, and liberal free speech norms conflict with the broad protection of emotional comfort that the young, modern left demands."

How the resurgence of white supremacy in the US sparked a war over free speech - "Since its founding in 1920, the ACLU has helped make the US home to arguably the most freewheeling, unregulated public discourse in the world. And it has done this partly by defending, in the courts of law and public opinion, the speech rights of racists and fascists. The ACLU asserts that laws guaranteeing freedom of speech must embrace everybody (think the Ku Klux Klan and neo-Nazis) if they’re going to protect anybody (think organised labour, anti-war protesters and Black Lives Matter). “The same laws or regulations used to silence bigots can be used to silence you,” its website explains.Over the course of the 20th century, the ACLU largely won the country over to its vision, making freedom of speech one of the most widely accepted principles in US political life... nine senior members of the organisation wrote to the board condemning the possibility that the ACLU might “reverse its historic role” in defending freedom of speech. Every major news outlet in the US reported on the conflict. Journalists from the left and right who cover the free-speech beat, including Glenn Greenwald at the Intercept and Conor Friedersdorf at the Atlantic, argued that curtailing white-supremacist speech would ultimately harm liberal causes... A long-time consensus has been breaking down,” the legal historian Laura Weinrib, who has written an important new history of free speech in 20th-century America, told me. One study suggests that many liberals have become increasingly intolerant of racist speech. Several other studies show that support for free speech is weakening, especially among millennials. “I think this generation perhaps doesn’t fully apprehend just how hard fought-for the right to freedom of speech was,” Romero told me recently. Partly as a result of these trends, free-speech defenders of all political stripes believe that the principle is under greater threat than it has been for generations. “We confront a real crisis now about the future of free speech in this country,” Wendy Kaminer, a former member of the ACLU’s national board, told me... large swathes of the left and the right have switched positions on freedom of speech... In one troubling recent case in France, highlighted by Glenn Greenwald, 12 activists were convicted of violating hate-speech laws for wearing T-shirts that read “Long live Palestine, boycott Israel”... “That’s absurd,” Romero said, when I asked him about the impression among some staff that the ACLU puts more into representing white supremacists than defending people of colour. “And it’s just not borne out by the facts.” A spokesperson for the ACLU said that, nationwide, the organisation dedicates more time and resources to fighting mass incarceration than any other issue. Other priorities include immigration, LGBT rights, national security issues and voting rights. It has filed at least 150 legal actions against the Trump administration."

ACLU sues Jeff Sessions over restricting asylum for victims of domestic, gang violence - "The Department of Justice said in a statement Wednesday morning that most victims of such crimes do not fit the definition for asylum claims."Our nation’s immigration laws provide for asylum to be granted to individuals who have been persecuted, or who have a well-founded fear of persecution, on account of their membership in a ‘particular social group,’ but most victims of personal crimes do not fit this definition — no matter how vile and reprehensible the crime perpetrated against them," the department said in a statement... Under U.S. and international law, a person may seek asylum based on persecution or a well-founded fear of future persecution because of race, religion, nationality, political opinion or membership in a particular social group... Sessions' June memo overruled a 2014 decision by the Board of Immigration Appeals that gave asylum status to a Guatemalan woman who fled her husband after what the board called "repugnant abuse." The board found that the woman qualified for asylum because she was a member of a particular social group — in this case, married women in Guatemala who could not leave their relationship... Many asylum seekers "are leaving difficult and dangerous situations," Sessions said in a June speech. "But we cannot abandon legal discipline and sound legal concepts.""
International law is only good when it aligns with liberal priorities