MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

American Civil Liberties Union, RIP

The ACLU no longer even pretends to believe in civil liberties.

In the late 1960s, the ACLU was a small but powerful liberal organization devoted to a civil libertarian agenda composed primarily of devotion to freedom of speech, free exercise of religion, and the rights of accused criminals. In the early 1970s, the ACLU's membership rose from around 70,000 to almost 300,000. Many new members were attracted by the organization's opposition to the Vietnam War and its high-profile battles with President Nixon, but such members were not committed to the ACLU's broader civil libertarian agenda. However, the organization's defense of the KKK's right to march in Skokie, Illinois, in the late 1970s weeded out some of these fair-weather supporters and attracted some new free speech devotees. But George H. W. Bush's criticisms of the ACLU during the 1988 presidential campaign again attracted many liberal members not especially devoted to civil liberties.

To maintain its large membership base, the ACLU recruited new members by directing mass mailings to mailing lists rented from a broad range of liberal groups. The result of the shift of the ACLU to a mass membership organization was that it gradually transformed itself from a civil libertarian organization into a liberal organization with an interest in civil liberties. This problem was exacerbated by the growth within the ACLU of autonomous, liberal, special interest cliques known as "projects." These projects have included an AIDS Project, a Capital Punishment Project, a Children's Rights Project, an Immigrants' Rights Project, a Lesbian and Gay Project, a National Prison Project, a Women's Rights Project, a Civil Liberties in the Workplace Project, a Privacy and Technology Project, and an Arts Censorship Project. This loss of focus led Harvard Law School Professor Alan Dershowitz to waggishly suggest that "perhaps the Civil Liberties Union needs a civil liberties project."

Since the George W. Bush administration, the ACLU's dedication to its traditional civil libertarian mission has waned ever further. With the election of Donald Trump, its membership rolls have grown to almost two million, almost all of them liberal politically, few of whom are devoted to civil liberties as such. Meanwhile, the left in general has become less interested in, and in some cases opposed to, freedom of speech, freedom of religion, and the rights of the accused.

Future historians will have to reconstruct exactly how and why the tipping point has been reached, but the ACLU's actions over the last couple of months show that the ACLU is no longer a civil libertarian organization in any meaningful sense, but just another left-wing pressure group, albeit one with a civil libertarian history.

First, the ACLU ran an anti-Brett Kavanaugh video ad that relied entirely on something that no committed civil libertarian would countenance, guilt by association. And not just guilt by association, but guilt by association with individuals that Kavanaugh wasn't actually associated with in any way, except that they were all men who like Kavanaugh had been accused of serious sexual misconduct. The literal point of the ad is that Bill Clinton, Harvey Weinstein, and Bill Cosby were accused of sexual misconduct, they denied it but were actually guilty; therefore, Brett Kavanaugh, also having been accused of sexual misconduct, and also having denied it, is likely guilty too.

Can you imagine back in the 1950s the ACLU running an ad with the theme, "Earl Warren has been accused of being a Communist. He denies it. But Alger Hiss and and Julius Rosenberg were also accused of being Communists, they denied it, but they were lying. So Earl Warren is likely lying, too?"

Meanwhile, yesterday, the Department of Education released a proposed new Title IX regulation that provides for due process rights for accused students that had been prohibited by Obama-era guidance. Shockingly, even to those of us who have followed the ACLU's long, slow decline, the ACLU tweeted in reponse that the proposed regulation "promotes an unfair process, inappropriately favoring the accused." Even longtime ACLU critics are choking on the ACLU, of all organizations, claiming that due proess protections "inappropriately favor the accuse."

The ACLU had a clear choice between the identitarian politics of the feminist hard left, and retaining some semblance of its traditional commitment to fair process. It chose the former. And that along with the Kavanaugh ad signals the final end of the ACLU as we knew it. RIP.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Sarcastr0||

    Sounds to me like you're begging the question. I don't know much about the issue, but the ACLU is saying the specific process set forth is an unfair process, inappropriately favoring the accused.

    You then accuse them of being against "due process" generally, which doesn't seem to be what they said.

    the identitarian politics of the feminist hard left,
    This extremely partisan language undercuts your argument.

  • Remember to keep it all polit||

    He is quite clearly pointing out that while they claim to favor civil liberties, they went out of their way to slander the accused (the nominee, remember? Kavanaugh was the accused, you do know that much?) with the most inane guilt by association. If any conservative had put out a political ad like that (which is what it was), the left would have been all over that in outrage.

  • Sarcastr0||

    Kavanaugh wasn't on trial.

    Is there something wrong about the ACLU putting out political ads?

  • Armchair Lawyer||

    You don't need to be on trial to be accused and to have rights.

    When the ACLU starts putting out political ads designed to suppress the rights of the accused, it died. It might as well put out ads demanding that freedom of speech be limited for select groups, or that appeals processes for death row inmates be eliminated.

  • Sarcastr0||

    What rights are there in a confirmation hearing? This very blog shows from that era how much that is up for debate.

    It's clear what you want the ACLU's action to look like based on your other two examples, but to get there you are assuming rights not in evidence.

  • wareagle||

    In this hearing, the idea of a presumption of innocence was cast aside as were little things like fairness and justice. In a hearing for a SCOTUS Justice, for the irony-impaired.

    The ACLU wasn't complaining about Kavanaugh's judicial record. He threw in with the 'believe her' wing because he's on the 'wrong' side of the divide. If the ACLU were to weigh in on a judicial appointment, I would expect it to have something to do with the nominee's documented professional conduct, not some story from when he was in high school.

  • Sarcastr0||

    fairness and justice
    Very much in the eye of the beholder. Maximizing those is the entire debate.

    The ACLU was advocating against Kavanaugh because of his legal positions. Everyone knows that. Their method was to point out supported accusations against him. You think their method did violence to due process, but your only support so far is sophistry.

  • wareagle||

    No, it did not; the organization likened Kavanaugh to Cosby, Weinstein, not Bill Clinton, but along that lines. With zero evidence that makes such a claim even remotely possible.

    Fairness is fairly concrete as is due process. Accusations are not facts and hearsay is not evidence.

  • Sarcastr0||

    Wienstein hasn't been on trial. It's a travesty!

    Fairness isn't concrete. One could argue 90% of our current political debates are about fairness.

  • Careless||

    "The ACLU was advocating against Kavanaugh because of his legal positions."

    Sarcastro: your claim here, should you choose to defend it, is that the ACLU was advocating against him because he shared legal positions with Cosby, Weinstein, and Clinton

    But we all know they were just trying to slime him, and you're embarrassing yourself here

  • Sarcastr0||

    Not what I said. Motives arguments are different.

  • Brett Bellmore||

    You yourself are demonstrating the problem. Freedom of speech and religion, property rights, the right to keep and bear arms, the presumption of innocence, they aren't JUST formal legal protections limited to your interactions with government during a trial. They're a mindset, a view of how people should interact, what rights ought to be extended to people. Not just what rights grudgingly must be extended them in a few circumstances.

    You lack that mindset, and the ACLU has lost it. Caring enough to defend the formal legal protections follows in due course, for lack of desire.

  • Sarcastr0||

    I'll just bring up you and Hillary, as well as you and Twitter/Facebook again Brett. Your breezy mindset is just a partisan square peg you bang into the round hole of freedom.

    We both want and believe in freedom, we differ on what that means. And on quite a few facts as well, but that's neither here nor there.

  • Brett Bellmore||

    I have never advocated that Hillary's rights be violated. I have advocated that she be prosecuted for her crimes, instead of getting a pass on them. A trial, with all due process, would in my opinion result in her being convicted. But if she was acquitted, so be it. What I object to is her being given a pass on crimes ordinary people would be tried for.

  • Sarcastr0||

    I've never advocated that Kavanaugh's rights be violated. I have advocated that he be given a full investigation and hearing before he is placed in a lifetime tenure position.

    A full investigation, with all comprehensiveness, would in my opinion result in evidence he has lied to Congress.

    But if he was acquitted, so be it...etc. etc.

    You use Hillary's assumed crimes as a rhetorical cudgel and then sqwak when the ACLU does the exact same thing.

  • ravenshrike||

    What investigation could he legally have been given? Because every not completely batshit crazy and self contradictory accusation was well, well beyond the statute of limitations, which means any investigation would not only be illegal, but given the lack of any evidence apart from the accusation and possibly the medical notes which purportedly exist but no one but her lawyers and Ford herself has seen(or she committed perjury, which given how few events of the last several months regarding her conduct with the accusations in question is in itself highly probable) hearsay, making it a complete and utter farce.

  • bernard11||

    What investigation could he legally have been given?

    The full records of his time in the Bush White House could have been examined.

    Accusers and possible witnesses in the Yale incident could have been questioned.

    His high school buddy what's-his-name could have been put under oath.

    Someone could have investigated how much he really knew about Kozinski.

    For starters. Look, they knew he was a dubious choice, nominated because he was considered most likely to kiss Trump's ass, a judgment he confirmed almost immediately upon being named.

  • ravenshrike||

    So no legal investigation by the FBI then. I suppose if you wanted to extend the Senate shitshow it would have been an option. Course, the first thing that the Senate would have done is subpoena her "therapist notes" and subpoena FaceBook et al for her deleted* social media profiles going back 3 years.

    *When you delete your profile, the companies don't actually delete the information as they can still datamine it. They remove it from external access.

  • iowantwo||

    The full records of his time in the Bush White House could have been examined.

    Examined for exactly what? Why look at those records? What probable cause exists? The constitution requires no hearing, or investigations. Kavanaugh had already has been confirmed by the Senate, and undergone a handful of FBI investigations.

    Of course you can ignore all of the law and constitution, and find the crime, since you already have the man. Like the very best of totalitarian shithole countries.

  • James Pollock||

    "Examined for exactly what? Why look at those records? What probable cause exists?"

    What probable cause needs to exist?

    The guy wasn't charged with a crime. He was accused of being unfit for a seat on the United States Supreme Court.
    You people are arguing that he's entitled to a presumption of being considered qualified. I contend that he has no such presumption.

    The Senate's role is "advise and consent", with no specified process for determining either. Because of this, he "won" because members of one party dominates the senior legislative chamber, and that's about all you can say conclusively.

  • David Nieporent||

    Accusers and possible witnesses in the Yale incident could have been questioned.

    They were. But there were no witnesses (including the accuser herself, who only decided it was Kavanaugh after discussing it with her lawyer after Ford's accusations).

    His high school buddy what's-his-name could have been put under oath.

    He was. Judge stated under penalty of perjury that Kavanaugh didn't do what Ford said.

    Someone could have investigated how much he really knew about Kozinski.

    Setting aside for the moment what that has to do with the price of tea in China, people did.

  • Dick King||

    Actually, DC law forbids an adverse hiring decision based in any part on an arrest or accusation of a crime, not accompanied by a conviction or a guilty plea, for any job with an employer of ten or more people, unless proceedings are still in progress.

    If there were rumors that he never graduated from law school, fair game. The opponents were fond of pointing out that the alleged behavior was criminal, so due process should be taken that seriously.

    What would the ACLU have said if Avis had refused to hire a candidate who was accused — but never charged or convicted — of Grand Theft Auto decades ago?

    -dk

  • James Pollock||

    "You don't need to be on trial to be accused and to have rights."

    Where, exactly, does this alleged right to not have people say mean things about you come from?

    "When the ACLU starts putting out political ads designed to suppress the rights of the accused"

    Kavanaugh had a right to be confirmed? Or is this still the right not to have people say mean things about you?

    "It might as well put out ads demanding that freedom of speech be limited for select groups"

    So... by exercising their freedom of speech, they revealed themselves to be anti-free-speech?

  • damikesc||

    Where, exactly, does this alleged right to not have people say mean things about you come from?

    Slander is still not legal. Him not suing for slander does not mean that he was not the victim of patently false and slanderous comments.

  • James Pollock||

    Nice dodge, but you didn't answer the question.

  • damikesc||

    I actually did. You didn't like the answer.

  • James Pollock||

    "I actually did. You didn't like the answer."

    The question was "where does this alleged right to not have anyone say something mean about you come from?"

    You wandered off and talked about slander, instead. You label this as me not liking the answer. I counter that it's you who didn't like the question. So, you answered a different question, and pretended you were responding to the question asked. That's what politicians do. Are you a politician?

  • GeoffB1972||

    Does the ACLU have the right to be respected as a principled organization with a serious commitment to civil liberties? Because we're not talking about what they have the right to do. We're talking about whether the right still owes them grudging respect if they cease to do the things from which they earned it in the past.

  • James Pollock||

    "Does the ACLU have the right to be respected as a principled organization with a serious commitment to civil liberties?"

    As a matter of intellectual honesty, or as a matter of law? Because you get different answers each way.

    "We're talking about whether the right still owes them grudging respect"

    Or we're talking about whether it's honest to withhold respect, because of disagreeing with one or more of the issues they've identified as in accord with their mission. If the only reason you'd respect the ACLU is because they once supported the Nazis, say so.

  • iowantwo||

    Lacking some other objective standard, the legal standard used about innocent until proven guilty is the standard to use.

  • James Pollock||

    "Lacking some other objective standard, the legal standard used about innocent until proven guilty is the standard to use."

    You're aware that presumptions come in multiple flavors, right?

  • caseym54||

    Yes. It is, in fact, illegal for a 501c3 to advocate a vote.

  • Sarcastr0||

    Not my area, but I would presume that is not the same as a political ad. Else the NRA is sure as hell in trouble.

  • Adam Harden||

    The ACLU is a 501(c)(3) organization, so the contributions made to the organization are tax deductible. In exchange for the favorable tax treatment that comes with being recognized under Code section 501(c)(3), there exist more strict rules on lobbying for such organizations. The NRA is a 501(c)(4) organization, and the contributions made to the organization are not tax deductible. Organizations recognized under Code sections 501(c)(4) and (6) do not have similarly strict rules governing lobbying efforts.

  • Brett Bellmore||

    In fact, the NRA has a PAC to for the political donations.

  • Sarcastr0||

    Thanks for your patience in making me smart on this - I legit did not know.

    So it's the usual complete lack of enforcement of any distinction between education and advocacy when it comes to political speech.

    I'm down to start enforcing that distinction if you are!

  • Brett Bellmore||

    "So it's the usual complete lack of enforcement of any distinction between education and advocacy when it comes to political speech."

    Yeah, otherwise known as "freedom of speech".

  • James Pollock||

    "Yeah, otherwise known as "freedom of speech"."

    You're confusing "freedom of speech" and "freedom to be a tax-free organization". One is Constitutionally guaranteed, but the other one is not, and it has rules for obtaining and retaining tax-free status. Oops... tipped my hand, there.

  • Brett Bellmore||

    "You're confusing "freedom of speech" and "freedom to be a tax-free organization". One is Constitutionally guaranteed, but the other one is not, and it has rules for obtaining and retaining tax-free status. Oops... tipped my hand, there."

    If something is a right, the government can't legitimately sanction you for doing it. Taxing everybody and then offering to not tax you if you refrain from exercising a right is functionally indistinguishable from taxing you for exercising the right.

  • James Pollock||

    "If something is a right, the government can't legitimately sanction you for doing it."

    Sure they can. And do.

    "functionally indistinguishable from taxing you for exercising the right."

    And... they can do that.

    So, your argument is based on your misunderstanding of reality. As was pointed out to you previously.

  • Seamus||

    Actually, the ACLU is a 501(c)(4) organization. The have a 501(c)(3) affiliate, the ACLU Foundation, but they're not a 501(c)(3) organization themselves.

  • Careless||

    You'll notice two types of political ads: "vote for/against bob smith because he sucks" and
    "Bob Smith hates puppies. Call Bob Smith and ask him why he hates puppies"

    503c3s can do the latter

  • James Pollock||

    "It is, in fact, illegal for a 501c3 to advocate a vote."

    501c3's can't petition Congress for a redress of their grievances?
    When was the 1st amendment repealed? Why didn't the ACLU object?

  • Careless||

    your ignorance isn't our problem, but I will educate you for free!

    They can't advocate for or against someone. They can, however, talk about an issue and mention how a politician falls on one or the other side of the issue, strongly suggesting to anyone who sees it how they should vote

  • Krayt||

    "In exchange for favorable tax treatment, thou shan't comment on us" -- people in power.

    Since this thread is about the cataloging of abandoned fundamental principles...

  • James Pollock||

    "your ignorance isn't our problem"

    It only exists in your imagination, so whose problem should it be?

    "They can't advocate for or against someone."

    They sure can. If you're going to call me "ignorant", you might want to avoid following up by saying something stupid.
    501(c)(3) entities are not prohibited from lobbying, genius.

  • BadLib||

    Of course the ACLU has the First Amendment _right_ to put out political ads trying to torpedo the nomination of a Supreme Court Associate Justice by using innuendoes and smear tactics inconsistent with the usual notions of "fairness".

    Just as they have the First Amendment right to put out political ads urging people to join the KKK and burn crosses and wear stupid white robes and hoods or even to call for the elimination of child rape laws.

    The question is not if it's "right or wrong". The question is are they really standing for Civil Rights at this point or are they devolving into just another progressive political organization. Given their historical refusal to defend the Second Amendment as strongly as they (used to) support (most) clauses of the First, Fourth, and Fifth amendments, I concluded the latter long ago and actions such as those mentioned in this blog entry only reinforce that view.

    (The question of if they have a "right" to maintain their 501(c)(3) status should they devolve too much more is, of course, an entirely separate question).

  • James Pollock||

    "Given their historical refusal to defend the Second Amendment as strongly as they (used to) support (most) clauses of the First, Fourth, and Fifth amendments"

    They chose to defer to a different organization who leads that particular charge. Not quite the same thing as letting it wither on the vine.

  • Brett Bellmore||

    That was just an excuse they'd deploy sometimes. At the same time they maintained an official position on the 2nd amendment's meaning that was indistinguishable from the gun control movement's: That it was a "collective" right, that no individual would ever have standing to assert. Essentially a right to keep and bear arms as part of a military force, if the government wanted you to.

  • James Pollock||

    So... you're mad that they didn't advocate a position you don't agree with?

  • FlameCCT||

    Yes James,
    We understand that the ACLU opposed MLK and his 2A Rights just like they continue to do today!

  • David Nieporent||

    Is there something wrong about the ACLU putting out political ads?

    I mean, yes? But that question misses the point anyway; it was the specific content of the ad that Prof. Bernstein was questioning.

    "Oppose Kavanaugh's nomination because he holds positions X, Y, and Z that are antithetical to civil liberties" is a reasonable position for the ACLU to take. But that's not what they said.

  • Sarcastr0||

    It's a hardball ad. But it's not based on made-up stuff, but a legit controversy. The NRA or Judicial Watch does vastly worse.
    I don't see their lack of decorum as something that means the ACLU is dead, I see it as part of their mandate as advocates, in fact. They are not objective and honest brokers, but that's not their job.

  • VinniUSMC||

    "Legit" controversy.

    It's like you don't even recognize how ridiculously partisan you have become. There's nothing legit about the controversy, that 3(?) of the 4 accusers have admitted to making up completely.

    C'mon man, are you really serious here?

  • Sarcastr0||

    You don't think it's legit, and judge me for thinking otherwise. As expected in this partisan arena.
    But Prof. Bernstein is trying to make his arguments nonpartisan, so you need more than that.

    I heard one of the accusers recanted - the Avenanti one, natch. I also heard Prof. Smith is continuing to get death threats. So some thuggish types certainly do think it's serious.

  • FlameCCT||

    Neither are students accused of sexual assault on campus. I would note that employees, students, etc. still have rights (both criminal and civil) which the ACLU has decided to oppose.

  • Sarcastr0||

    And some rights on the opposite side which the ACLU has decided to support. (see my 11.17.18 @ 10:36AM post)

    No one has given a good reason why the ACLU's choice of rights is illegitimate, preferring to just ignore that there is a balance of equities and pretend all the rights are on their preferred side of the argument.

    It's more fun to skip straight to the excoriation, but no one, OP included, is really showing their work very well.

  • FlameCCT||

    Seriously Sarcastro?
    The ACLU has decided to support having universities "investigate and make determinations" about a criminal act without any abilities nor authority required to accomplish said investigation and determinations. I'm sorry but sexual assault is not some petty theft but a serious criminal act and should be treated as such. Or do you prefer universities also investigating assault & battery, grand theft, attempted murder, etc. instead of referring criminal acts to the proper authorities?

  • FlameCCT||

    I should have added that if a sexual assault occurred in the workplace then the employers would be required to inform the proper authorities instead of running their own kangaroo court to cover up the incident.

  • Sarcastr0||

    So your position is not only that schools should be passing off all accusations to the police for a criminal investigation, but that anyone in favor of civil rights as a concept should not discuss what process is due when a school is having a hearing about such allegations?

    It's one thing to think you're correct, it's another to say that disagreeing with you means you forfeit your moral high ground forever.

  • David Bernstein||

    Because the feminist hard left doesn't engage in identitarian politics, and wasn't responsible for requiring Title IX institutions to deny due process to accused students? By partisan you apparently mean "bluntly truthful."

    Meanwhile, you might have a point if the ACLU actually identified anything in its tweet storm that in fact "inappropriately favors the accused." It did not, and I will state cannot.

  • Sarcastr0||

    By partisan you apparently mean "bluntly truthful."

    Which is what partisans think when they say something like that. What looks like the truth to you looks to me like you're not arguing against the position of the other side, you're just calling them names.

    Regardless, my point was about optics - if you want to make an argument about a liberal institution being wrong and bad, ending with a stream of angry conservative epithets underscores your biases. Doesn't mean your arguments aren't worthy of engagement, just that it's a lot less rhetorically convincing when someone finishes a long discussion of how the Cowboys are badly managed with 'Go Redskins!'

  • David Bernstein||

    So you maintain that pointing out that the feminist hard left is identitarian is both "conservative" and an "epithet," as opposed to an obviously factually correct statement? In other words, you maintain that it's not objectively true that the feminist hard left is identitarian? I'm pretty sure you will not go on the record with that (as much as someone who hides behind anonymity can go on the record).

  • HMI||

    My questions exactly.

  • Sarcastr0||

    I'm not sure it's really obvious to any who isn't on the right. Feminists would argue otherwise, certainly.

    And Identitarian is not a term I hear much in general use, as that to me has pretty strong white supremacist connotations.

    And as we've discussed before, 'far left' is self-defining to the point of meaning 'liberal I think is crazy'' which has some No True Scottsman problems baked in.

    In sum, it may be objectively true, but it's not obviously objectively true to a general audience (including myself) - if you're going to throw that out there, you need to support it.

  • caseym54||

    Now he's a racist. Did you just find that card?

  • Sarcastr0||

    Hehe, maybe re-read what I said.

  • David Bernstein||

    Well, I mean identitarian politics in its sociological sense, "a belief that politics should be based primarily on social identity." Note that a feminist does not have to take that position, and most don't, but the hard left feminists do.

  • Sarcastr0||

    So we're back to hard left as No True Scottsman. Sure, there are crazy feminists out there. But I'm not sure it's at all clear that they're the ones in the drivers' seat of sexual consent on campus.
    =================
    Identitarian has unavoidable connotations of fascism at this point. I can't stop you from using it, but it kinda feels propagandish to me.

  • damikesc||

    I don't see connotations of fascism in it. Perhaps you are not strong at reading?

  • Rock Lobster||

    It's not that he is weak at reading, it's that he is strong on creativity. And that anything (and anyone) questioning identity politics, intersectionality, ad nauseum is inherently fascist, at the very least by connotation, while those who actively oppose it are literally nazis. Oh, and that certain words--"identarian," for instance--should therefore be forbidden.

  • mad_kalak||

    Sarcastro fancies himself a Socratic gadfly who thinks he's getting to first principals, but in actuality he's like an autistic kid who endlessly asks the same questions and/or harps on the smallest inconsistencies thinking they undermine the whole arguement.

  • Sarcastr0||

    Yeah, making an association with the ACLU as a kinda white supremecist might draw attention away from your broader thesis. Though the fact that three people think I was calling Prof. Bernstein a white suprememcist is kinda hilarious. Suspiciously oversensitive much?

    I don't get at first principles - I learn them sometimes, but I am aware my knowledge is broad not deep.

    It is enough to recognize when an argument is fallacious or sophisitic. That's why I rarely post a reaction to the OP but much more commonly I reply to commenters.

    he's like an autistic kid
    Get that crap outta this blog; I know it's common parlance on 4chan, but we don't need it.

  • mad_kalak||

    Don't pretend you have a right to tell me what to do, ever.

    That said, you fell right into typecast.

  • Sarcastr0||

    You've diagnosed me as autistic, and with masculity issues. I'm pretty secure in both my social abilities and my masculinity, but I think those are infantile antics are bad and you should stop.

    I have just as much right to say that as you do to get impotently angry at my saying you should stop.

  • Kazinski||

    I think its important that we start labeling individual words as fascist, communist etc.

    But I am a little confused, is labeling someone else identitarian fascist, or is self labeling as idenitarian fascist?

    Because white nationalists are definitely identitarian, same as any other group that revolves their ideology around their identity.

  • Sarcastr0||

    What is the first thing you think of when you think of Identitarian? My first though was that he was comparing feminists to white supremacists. Certainly they've been called worse on this very thread.

    Maybe he was innocently using the second definition of a word whose first definition has unfortunate fascistic connocations. If so, he should be aware now and stop. If not, he's using some pretty dodgy rhetoric.

    Not fascist, just propaganda that's below him.

  • SimonP||

    David, it depends on what you mean by "identitarian."

    If the term is taken at its most innocuous - as referring to a political movement that is in some sense based on social "identity" - then the "feminist hard left" is necessarily identitarian - but trivially so. Because all we are describing, when we are describing the "feminist hard left," is a leftist political movement based around women's rights and women's equality. So if that's the meaning you intend in this comment, then it's inescapably the case.

    But you might mean something else by referring to the "feminist hard left" as identitarian. Sarcastr0 has suggested that you could be drawing a comparison to the hard-right white nationalists that tend to come up when you google "identitarian." Alternatively, you could be keying into common grousing about so-called "identity politics," which is ostensibly a politics based less on policy or the common good but on some kind of in-group/out-group competition.

    The problem with either of those definitions is that it is hard to describe the ACLU's opposition to the Title IX reforms as "identitarian" in either of those senses. At least, you haven't demonstrated that it fits either of those senses.

  • damikesc||

    Because all we are describing, when we are describing the "feminist hard left," is a leftist political movement based around women's rights and women's equality.

    Demanding drunk women be absolved for ALL of their behavior (cannot blame the "victim", after all) while drunk men are responsible for theirs AND their drunk partner's behavior (because, well, he should've known --- although he was ALSO drunk --- that she was too drunk to consent) sexually is not seeking equality by any rational standard.

  • Rock Lobster||

    The left doesn't seek equality by any rational standard, it seeks equity by irrational standards (any means necessary).

  • James Pollock||

    "Demanding drunk women be absolved for ALL of their behavior (cannot blame the "victim", after all) while drunk men are responsible for theirs AND their drunk partner's behavior (because, well, he should've known --- although he was ALSO drunk --- that she was too drunk to consent) sexually is not seeking equality by any rational standard."

    Maybe we could have it so that the person who didn't want to have sex is the victim, and the person who did even though the other person didn't consent is the wrongdoer, and leave out "The woman" and "the man" as definitional in describing sexual assault.

  • James Pollock||

    "So you maintain that pointing out that the feminist hard left..."

    Whining about the "feminist hard left"... of any sort... is both "conservative" and an "epithet".

    Plus, it's identitarian. Was your goal to demonstrate irony?

  • TwelveInchPianist||

    Nice job showing solidarity with the feminists, Sarcastro! Their struggle is our struggle, amirite?

  • Sarcastr0||

    I don't know what you're getting at, but I calls them as I sees them. I think women continue to get a raw deal in a lot of areas.

  • damikesc||

    How dare they not be able to ruin a man's life because they had casual sex and the man moved on. He should be punished because she has regrets!

  • Red Rocks White Privilege||

    I think women continue to get a raw deal in a lot of areas.

    Not really. They're really good at whining that they do, though.

  • damikesc||

    So, Sarcastro, you're arguing the feminists are MAINSTREAM progressive thought?

    Man, I'd be raked over the coals for making such a comment.

  • Sarcastr0||

    I suspect your definition of feminist and mine differ in some material aspects.

  • mad_kalak||

    Feminists have perfected the use of the motte and bailey. Dictionary definition of feminism is that it is about social-political equality between the sexes, but in practice, it's about misandry and special privileges for women to the detriment of me; when confronted with the inconsistency of feminism on the books and feminism in action, they retreat to the bailey of "it's just equality that we want, how can you be against that."

  • James Pollock||

    "Dictionary definition of feminism is that it is about social-political equality between the sexes, but in practice, it's about misandry and special privileges for women to the detriment of me"

    You're doing it wrong.

  • mad_kalak||

    Do you have anything of substance, or just useless snark? That being said, I meant to type "men" instead of "me" but it still works.

  • James Pollock||

    "Dictionary definition of feminism is that it is about social-political equality between the sexes, but in practice, it's about misandry and special privileges for women to the detriment of me(n)"

    You're still doing it wrong.

  • bernard11||

    David,

    The new rules make it harder to bring a successful accusation. Hence they favor the accused more than the previous ones. Whether that change is "inappropriate" or not is hardly something to which there is a clear, objective answer.

    My own opinion, from what little I have read on the subject, is that there are some improvements, and some things that maybe aren't so great.

  • David Nieporent||

    The new rules make it harder to bring a successful accusation.

    They make it harder to successfully bring a false accusation. Which one would think a civil liberties organization would be in favor of.

    It's obviously the case that 99.9999999999% (I had to stop somewhere) of the people criticizing the proposed regulations haven't read them. But one would hope the ACLU would not be amongst that group. But they, like other critics, haven't actually pointed to a single one that "isn't so great."

  • bernard11||

    They make it harder to successfully bring a false accusation. Which one would think a civil liberties organization would be in favor of.

    And also necessarily harder to successfully bring a true accusation. As I said, I think it's a mixed bag and, by the way, I think the Kavanaugh ad was a terrible idea.

    I also think Bernstein's reaction is over the top, but that's not atypical when an organization does something he doesn't like.

  • Seamus||

    And also necessarily harder to successfully bring a true accusation.

    IOW, they're like the exclusionary rule, Miranda warnings, warrant requirements, the right of confrontation, and a lot of other things that the ACLU used to support.

  • Sarcastr0||

    Police are pretty different in their incentives, their duties, and their institutional history, than sexual assault accusers.

  • James Pollock||

    "IOW, they're like the exclusionary rule, Miranda warnings, warrant requirements, the right of confrontation, and a lot of other things that the ACLU used to support."

    I don't think this is a direct parallel. Some of the people who are served by exclusionary rule, Miranda warnings, warrant requirements, etc. are themselves accused of violating someone's civil rights, but most are not.
    In the Title IX context, however, all of the accused are accused of violating someone's civil rights.

    Secondly, it's possible to argue that existing due process procedures are inadequate, but a specific set of proffered reforms is not better than the existing system.

  • SimonP||

    David's a hack. Always has been, apparently always will be. He relies heavily on smears, obfuscation, and equivocation to make his points, to such an extent that one cannot simply trust that he is engaged in good-faith argument. Every reference must be checked, every factual characterization independently examined, every argument closely examined.

    Anyone who relies on his scholarship at face value does so at their own risk. He is not to be trusted. Honestly, it's more work than it's probably worth to get anything of value from anything that he writes.

  • David Bernstein||

    You know, if I were that sort of person, I'd subpoena Reason's IP records, find out your identity, and sue you for defamation. Someone else might.

  • SimonP||

    I'll make sure to refrain from making false factual assertions about people, then, and make sure my lawyer is up to speed on anti-SLAPP legislation.

  • David Bernstein||

    Look, I'm not going to sue you, because I don't care what some anonymous internet troll writes, but I find it remarkable that people think because they use a pseudonym they can feel free to defame anyone they want, assuming that no one will be angry/petty/vengeful enough to respond legally.

  • SimonP||

    Well, I haven't defamed anyone, so...

  • HMI||

    What shall we call someone who relies heavily on smears, obfuscation, and equivocation to make his points, to such an extent that one cannot simply trust that he is engaged in good-faith argument? Besides SimonP., I mean.

  • SimonP||

    HMI:

    Careful, HMI - a lesser man than myself could take a comment like this as an opportunity to sue you for defamation.

  • James Pollock||

    "Look, I'm not going to sue you, because I don't care what some anonymous internet troll writes,"

    Not going to sue because there's no cause of action, is the answer one would IDEALLY be looking for from a logal commentator.

    "I find it remarkable that people think because they use a pseudonym they can feel free to defame anyone they want, assuming that no one will be angry/petty/vengeful enough to respond legally."

    Tell me more about it.

  • Rev. Arthur L. Kirkland||

    Perhaps Prof. Volokh -- right-wingers' go-to guy on the First Amendment -- will offer his analysis of the strength of a legal opinion that SimonP's comment could support a recovery for defamation.

    Or perhaps purveyors of result-driven movement conservative polemics with an academic veneer believe they must stick together to a degree that would preclude such effort.

    Carry on, clingers. In particular, keep wondering why strong law schools decline the invitation to emulate crappy schools by hiring more loudly right-wing faculty members.

  • M.L.||

    So you're a flaming liberal angry about his comments but unable to respond substantively. Got it.

  • SimonP||

    Sarcastr0 was taking David to task for his choice of language. I was explaining how it fits within a larger pattern.

    I am not myself particularly enthused about the ACLU's taking up this cause, but having examined the issue somewhat more closely, I don't see anything actually amiss here apart from a poorly-worded tweet.

    To understand the ACLU's explanation for how the reforms "inappropriately favor[] the accused," you have to understand that the ACLU views the Title IX process for hearing claims of sexual assault/harassment in the university context as a fundamentally civil matter, not criminal. Thus, in the ACLU's view, the appropriate standards should be taken from the civil litigation context, where the burden of proof remains on the accuser but is not as high as the "clear and convincing" standard employed by the new rules.

    The reforms also burden accusers by raising the bar of severity that harassment must cross before it is properly a school's responsibility to address and implicitly requires that issues be "elevated" to a pretty high level - features that also tend to protect the accused, to the detriment of accusers.

  • Armchair Lawyer||

    You don't see anything wrong with a civil liberties union, a union designed to fight for the rights of the accused, actively fighting AGAINST the rights of the accused?

    Really? Nothing at all?

  • SimonP||

    I have explained why I understand the ACLU's approach to this issue. You do not seem to have read my comment. If you think the ACLU's rationale is faulty, feel free to specify how.

  • Armchair Lawyer||

    The ACLU mission statement is not to fairly consider both sides of the debate. It's not to say in a death row inmate case "Well, you know, we could defend the inmate, but the victims have rights too, and we're favoring the victim's rights in this case, so we need to work to suppress the inmate's rights"

    The ACLU's mission statement it is to defend civil rights. It's to defend the inmate. It's to defend the accused. Civil or criminal.

  • SimonP||

    Armchair Lawyer:

    The ACLU's mission statement it is to defend civil rights. It's to defend the inmate. It's to defend the accused. Civil or criminal.

    And the ACLU has explained that a systematic failure to address the problem of sexual harassment and assault on college campuses deprives the rights students have, under Title IX, to learn in an environment free of such harassment and assault. Also a civil right.

  • wareagle||

    what 'systemic failure'? Campuses are not rape factories; they're among the safest places on the planet for young women. The one in four stat is an insult to the term 'stat' and the number of accusations that have been kicked out in court - after the male was expelled or suspended or otherwise harmed, of course - is lengthy.

  • SimonP||

    what 'systemic failure'? Campuses are not rape factories; they're among the safest places on the planet for young women.

    What's your evidence in favor of this assertion?

  • wareagle||

    What's your evidence in support of it, seeing as how you made the claim? But as it is, there are the numerous cases tossed by courts and the pending lawsuits against institutions, there is the terminology used in the 'study' that came up with the one in four claim, and this doesn't even get into the demographic makeup of the modern campus.

  • SimonP||

    What's your evidence in support of it, seeing as how you made the claim?

    This is not how knowledge works. Even if I were to claim that sexual abuse is endemic to college campuses (and I have not), my failure to carry the burden of proof that it's the case does not entitle you to conclude, instead, that "campuses ... are among the safest places on the planet for young women." If I don't have the evidence, and you don't have the evidence, then the best either of us can say is that we don't know how safe campuses are.

  • wareagle||

    You claimed there is a 'systemic failure' on campuses. Twice. With absolutely nothing to back up the claim. In fact, we can say how safe campuses are based on crime reports, based on how many of these accusations later fall apart and often because of the 'victim's' texts/emails/words, based on a litany of male students wrongly accused, based on the number of fathers who still enroll their daughters in universities, ad nauseum.

    The only systemic failure is that of the Queen of Hearts court system that seeks out a sentence before the trial. We do know that campuses are safe based on all of the evidence before us.

  • James Pollock||

    " In fact, we can say how safe campuses are based on crime reports"

    If that's the conclusion you're dead set on reaching.
    Or, you can conclude that the system is so dysfunctional that people no longer even bother to report crimes. There you have it... proof that there's systemic failure.

    I mean, speaking as a father who enrolled his daughter in a university, I didn't do it blindly. I gave her advice on how best to stay safer.

  • wareagle||

    what 'systemic failure'? Campuses are not rape factories; they're among the safest places on the planet for young women. The one in four stat is an insult to the term 'stat' and the number of accusations that have been kicked out in court - after the male was expelled or suspended or otherwise harmed, of course - is lengthy.

  • Michael Ejercito||


    And the ACLU has explained that a systematic failure to address the problem of sexual harassment and assault on college campuses deprives the rights students have, under Title IX, to learn in an environment free of such harassment and assault. Also a civil right.


    Title IX does not even mention harassment or assault in its text. How then, could it possibly guarantee a right to be free from assault or harassment?

    More to the point, even if it did, it would only protect people from the employees of the university Students are not agents of the university, so their actions can not violate Title IX.

  • James Pollock||

    "Title IX does not even mention harassment or assault in its text. How then, could it possibly guarantee a right to be free from assault or harassment?"

    The Constitution doesn't mention harassment or assault, either. So if Officer Dirty assaults you, or harasses you, you should have no recourse. That is your argument?

  • Armchair Lawyer||

    Simon

    In regards to`

    "deprives the rights students have, under Title IX, to learn in an environment free of such harassment and assault. Also a civil right."

    This is not the ACLU's traditional role. It is basically a 180 from its traditional role. It's a public safety argument. Many, many of these civil rights arguments revolve around the argument between public safety/public good vs individual rights. And the ACLU was designed to support the individual rights.

    That's not to say it's wrong to have public safety arguments. But these arguments typically have strong proponents already, while those that argue for individual civil rights consistently are rather less prevalent. Almost always, people argued to curtail individual rights for the public safety. And a strong proponents for individual rights...even at the potential cost of public safety was extremely valuable. That no longer exists, at least with the ACLU.

  • James Pollock||

    "This is not the ACLU's traditional role."

    If your argument depends on arguing that the American Civil Liberty Union's "traditional role" does not include advocating in favor of Americans' civil liberties, you're starting out in a bit of a hole.

  • damikesc||

    You assume there IS a problem.

    There isn't one.

    The "problem" is a drunk hook-up culture that replaced the more Victorian courting culture. You can say it's an improvement, but that is what the problem is.

    Until feminists demand a ban of alcohol near campus, strict controls on who can go to the room of a person of the opposite sex at certain times and the like --- they are not actually serious about much of anything.

    In the vast majority of "rape" claims on campuses, both parties were equally raped since BOTH were drunk/buzzed and NEITHER could provide consent.

    ...but the man, alone, seems to be the one responsible most of the time. Odd.

  • James Pollock||

    "Until feminists demand a ban of alcohol near campus, strict controls on who can go to the room of a person of the opposite sex at certain times and the like --- they are not actually serious about much of anything."

    Nah. Maybe just demanding that rapists stop raping is serious enough.
    Yes, limiting alcohol use would create a substantial improvement. It's already illegal for minors to even possess alcohol. That isn't "banned" enough?

    The university has a duty to the students... imposed by Title IX... to provide educational opportunity equally to the sexes. It's true that rape cases (real and falsely-claimed both) do not occur with equal distribution between the sexes. Treating a rape complaint as presumptively real for purposes of educational impact... moving a student to different housing, changing their class schedule... is bad when it turns out that the case was false. But the ratio still favors the practice, and I understand why universities do this.

  • James Pollock||

    "You don't see anything wrong with a civil liberties union, a union designed to fight for the rights of the accused, actively fighting AGAINST the rights of the accused?"

    Actually, they're a union designed to fight for the rights of everyone. So if someone is accused of violating the civil rights of a person, or a group of persons... whose side should the union take?

  • damikesc||

    The one being accused. Not the one doing the accusing. The one being accused had far more on the line than the one doing the accusing.

  • James Pollock||

    "The one being accused. Not the one doing the accusing. The one being accused had far more on the line than the one doing the accusing."

    So... the core of your complaint is that their idea of which side to back with their time, effort, and money isn't the same as your idea of which side they should back with their time, effort, and money? Easily resolved... don't give any of your time, effort, or money to them, and instead set up your own, pro-rapist group. (I'm just getting ahead on the name-calling).

  • TwelveInchPianist||

    "the appropriate standards should be taken from the civil litigation context, where the burden of proof remains on the accuser but is not as high as the "clear and convincing" standard employed by the new rules."

    This is wrong. The new rules allow, but do not require, a "clear and convincing" standard. Furthermore, the new rules allow procedures, such as cross examination by a representative of the accused, some form of discovery, the right to know the evidence against him, etc. That are all staples of civil litigation. But even now under the new rules, the accused still doesn't have many of the protections afforded in a civil trial.

  • SimonP||

    This is wrong. The new rules allow, but do not require, a "clear and convincing" standard.

    Correct - that is a nuance that I haven't dwelled on. But you are correct that the rules imposing higher standards on these cases are optional - and so DeVos's reforms don't even go very far in protecting the rights of the accused.

    But my point was just that the "clear and convincing" standard - to the extent it is adopted by schools - is incongruous with the civil litigation context, which the ACLU takes to be the appropriate comparison.

  • Brett Bellmore||

    That's right, they don't even go very far, and yet they went too far for the ACLU.

  • Michael Ejercito||

    So why is the ACLU complaining about universities having discretion.

    Hell, if a private university choose to afford students accused of misconduct all of the procedural protection available to federal criminal defendants, why should the government stop them?

  • damikesc||

    And, with more and more court decisions going against the kangaroo trials colleges use now --- they might want to do so. It's not like their law schools are unaware of how badly their CURRENT Title IX policy has worked out legally thus far.

  • James Pollock||

    " But even now under the new rules, the accused still doesn't have many of the protections afforded in a civil trial."

    Perhaps because they are not IN a civil trial. They are, in fact, in an administrative hearing.

    In the case of a private institution, the only legal requirements before the institution may act are the ones contractually agreed to by the parties.
    Where's the free-market argument?
    If you don't want your son to go to a school where he can be removed from the school just for being identified as a rapist, send him to a school that promises to protect him from being identified as a rapist. If you don't want your daughter to go to a school that protects accused rapists, don't send her to a school with policies that protect rapists. If you think your kid can stay out of both kinds of trouble, send him or her to the school whose other properties fit his or her needs and interests.

  • David Nieporent||

    In the case of a private institution, the only legal requirements before the institution may act are the ones contractually agreed to by the parties.
    Where's the free-market argument?

    That your statement is incorrect. Private institutions are not freely choosing policies in this area; they're being compelled by the government to pick certain policies.

    That's why we're discussing the regulations being issued by the DoE, rather than any private institution's particular policies.

  • James Pollock||

    "That your statement is incorrect. Private institutions are not freely choosing policies in this area; they're being compelled by the government to pick certain policies."

    Private institutions are required to have policies. That's not at all the same thing as requiring them to "pick certain policies."

  • Krayt||

    ===Perhaps because they are not IN a civil trial. They are, in fact, in an administrative hearing.===

    I'm fine with discussions until we get to this sophistry. "It isn't a criminal trial even though the punishment, expulsion and permanent labels detrimental to one's social and professional life, are worse than many criminal penalties."

    "But her life is wrecked, too!" Yes, that's why it is a crime, not a civil. Yet here we have politicians riding to power "working around" fundamental protections against politicians riding to power abridging fundamental rights -- that's why they are considered rights, because a politician may not abridge it.

  • James Pollock||

    "I'm fine with discussions until we get to this sophistry. 'It isn't a criminal trial even though the punishment, expulsion and permanent labels detrimental to one's social and professional life, are worse than many criminal penalties.'"

    It isn't a criminal trial. That's fact, not sophistry. The penalty for "conviction" is that you have to pick a different school to attend, or to proceed in life with an incomplete education. That's worse than fines or incarceration? That just proves that your priorities and/or perspective are warped.

    "Yes, that's why it is a crime, not a civil."
    It's both at the same time (whether a true or a false accusation). Criminal court has higher stakes (loss of freedom), so it has different rules. This is true regardless of what kind of case it is... wrongful death tort vs. criminal manslaughter, battery tort vs. criminal battery, battery tort vs. criminal rape. Administrative hearings (which is what we're actually talking about here) can set up their own processes. If you live in a coop building, they can decide to kick you out easier than can a regular landlord, and that's easier than housing you in state custody.

  • David Nieporent||

    To understand the ACLU's explanation for how the reforms "inappropriately favor[] the accused," you have to understand that the ACLU views the Title IX process for hearing claims of sexual assault/harassment in the university context as a fundamentally civil matter, not criminal. Thus, in the ACLU's view, the appropriate standards should be taken from the civil litigation context, where the burden of proof remains on the accuser but is not as high as the "clear and convincing" standard employed by the new rules.

    There are two problems with that argument.

    The first is that "clear and convincing" is a standard from the civil litigation context.

    The second is that the new rules do not employ a clear and convincing standard; either you're trying to mislead or you haven't read the proposals. The Obama administration tried to require – without any legal authority – schools to employ a preponderance standard. These proposals would allow, not require, schools to use either standard; the only thing they would do is not require a lower standard for Title IX discipline cases.

    The reforms also burden accusers by raising the bar of severity that harassment must cross before it is properly a school's responsibility to address

    Actually, no. It employs the actual legal standard for sexual harassment in an educational context as defined by the Supreme Court.

  • SimonP||

    More to the point, I continue to be somewhat flummoxed at how Title IX is even the right vehicle for addressing the issue of campus sexual harassment/assault. I think it's the completely wrong mechanism, and I think that DeVos's attempted reforms help to demonstrate precisely why that's the case.

  • Bob from Ohio||

    "I continue to be somewhat flummoxed at how Title IX is even the right vehicle for addressing the issue of campus sexual harassment/assault"

    A rare point of agreement.

    Why is alleged behavior of students [mere paying customers of an institution really] an issue in a statute banning institutional discrimination? Students are not employees.

  • James Pollock||

    The answer is premises liability. If an institution (whether Harvard or Wal-Mart) maintains premises in an unsafe manner, they're liable for resulting injuries, regardless of who caused the actual injury. That's why stores pay for lighting their parking lots, and banks build (relatively expensive) ATM lobbies. The guy who carjacked you in the parking lot wasn't an employee, either but if the lack of lighting created an unsafe environment, the store owes you restitution.

  • I Callahan||

    Irony. You accuse the professor of smears, yet this load of bullshit is exactly that.

  • SimonP||

    I have been reading/semi-reading the VC for many, many years. I'm familiar with David's rhetorical style and penchant for hyperbole. And I have learned, from this experience, that I simply cannot take him at face value, the same way I might trust Orin, Will, or Jonathan. I have to distrust/double-check the assertions made by David, Dale, Eugene, and Randy. The others fall somewhere in the middle.

  • Armchair Lawyer||

    The ACLU's mission statement is literally "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It has made a history of defending the rights of the accused and defending the freedom of speech, no matter who it is.

    The ACLU died when it started actively fighting against the rights of the accused. This is PETA organizing a baby seal clubbing expedition. This is the Sierra Club stripping a forest and drilling and spilling oil everywhere.

    When the ACLU only defends individual rights when politically convenient...when it argues AGAINST those rights when politically convenient...it ceases to exist as a real civil liberties organization. When the next Democratic administration comes up, and starts stripping the civil liberties from the people...the ACLU will be right there, supporting the administration in the elimination of rights.

  • Sarcastr0||

    I'm not taking the ACLU's side on due process on campus, but it is not like there are no civil rights at stake on the other side either.

    Issues of sex and consent on campus isn't some clean issue where individual rights concerns are all on one side.

  • Armchair Lawyer||

    There is ALWAYS the other side to the argument. Always a reason to limit, suppress, curtail, or suspend civil rights. Usually some version of public safety. But the ACLU's mission was to DEFEND civil rights, not to say "well, this time we'll oppose civil rights, in support of other interests"

    And now that it's done so, it's ceased to exist as a real civil liberties organization. Now, there is no faith that when the government starts suppressing civil rights, it won't end up supporting the government in their suppression. For the other interests.

  • Sarcastr0||

    Then make that argument. Just saying 'The ACLU is wrong on this issue, wrong wrong wrong and therefore they are bad' is just a rant, nothing more.

    Your argument is so one-sided, it has a mirror: if the ACLU went all in on the rights of the accused, the arguing they were screwing up their mission and that their concerns were just an excuse to ignore the plight of women on campus. And now it's not a civil blah blah blah.

  • David Bernstein||

    "but it is not like there are no civil rights at stake on the other side either." Right, the "other side" claims that women's civil rights to be free from the threat of private sexual assault trumps due process rights that had been denied by the government. The ACLU had to choose between supporting that claim and defending due process, or at least staying neutral. The ACLU chose a version of civil rights over traditional due civil libertarian due process concerns. I didn't say that this makes the ACLU "bad" or even objectively "wrong." I said it's a very notable example of the ACLU no longer being a civil libertarian organization, as such, but one that just generally supports liberal/left causes.

  • Sarcastr0||

    Both sides need advocates, don't they?

  • David Bernstein||

    Both sides of any reasonable debate should have advocates. The ACLU's traditional role was to be on the side of due process against countervailing considerations. It is now on the other side.

  • Sarcastr0||

    The ACLU's traditional role...

    I don't know that this requires they forever make Due Process the king among rights in order to remain legitimate.

  • James Pollock||

    "the "other side" claims that women's civil rights to be free from the threat of private sexual assault trumps due process rights that had been denied by the government"

    You're skipping over the question of just what process is due.
    The institution is exercising its rights of association when it chooses to expel a student from its student body. What process is due before the organization may exercise its right? As a matter of fact, does it even have to have any process at all, or is "eww, we don't want to be associated with this person" enough?
    OK, for public universities there needs to be compliance with the state's little-APA. The decisions of the disciplinary arm can't be "arbitrary and capricious".
    Is there a basis for requiring more? Particularly for private institutions?

    I'd say there's at least an argument that the ACLU is protecting the rights of educational institutions to choose their own disciplinary procedures. (Yes, they were notably silent when the government was imposing Title IX liability in the first place... which might be seen as "choosing sides"... but isn't necessarily so. It could be that they're just late to the party, or there are some other substantive differences in the "other side"'s impositions.

  • Armchair Lawyer||

    David responds well below.

    But to reiterate. The ACLU's mission statement is to defend civil rights. Not to consider all angles. Not to support the plight of women (there are many other organizations supporting that). Not to say "well public safety here trumps people's civil rights, so we need to argue to suppress them".

    Once that happened. Once the ACLU argued against civil rights. It violated its core mission statement. And can't be trusted to faithfully support them in the future.

  • Sarcastr0||

    There are civil rights on both sides. You keep saying maximizing due process is the only legitimate side the ACLU could take, but you don't support it, just repeat it. Show your work more, don't just dwell on the fund end-part of condemning the ACLU.

  • Michael Ejercito||

    What is the civil right on the other side?

  • Armchair Lawyer||

    "There are civil rights on both side"

    In this particular context, civil right means something different. Individual rights. Freedom of speech, of religion, the rights of the accused.

    Once you start defining public safety as a civil right, and saying it's OK to curtail people's civil rights (like freedom of speech) for other people's "civil rights" (IE, public safety), you essentially eliminated any real context to the word. You start being able to censor people, restrict due process, and so on, all in the name of "civil rights". You're just protecting the people. You need to eliminate the 4th Amendment, to protect civil rights.

  • Rock Lobster||

    Feature, not bug. We're just not supposed to notice, much less have the temerity to oppose the stealthy "positive liberties" argument. For the greater good, of course.

  • TwelveInchPianist||

    "but it is not like there are no civil rights at stake on the other side either."

    Sure. White women who get raped on trains have rights too, but I suspect we would have all been surprised if the ACLU had come down on the other side in that case. Same thing here.

  • Sarcastr0||

    Throwing in white is revealing perhaps more than you want it to about your narrative about the ACLU.

    I have no problem distinguishing rape and consent issues on campuses from rape and consent on train.

    This is a pretty interesting issue full of ferment on both sides. There are stories of travesties against both accused and accusers. Anyone who thinks advocates of one party or the other have it completely right don't understand how due process works.

    I mostly have a pretty clear sense of what I want (formalized procedure that includes confrontation, preponderance standard). But I keep changing my mind about little nuances like hearsay and the makeup of the tribunal etc as I hear additional stories back and forth.

  • David Bernstein||

    The argument "due process rights need to be balanced against other considerations of justice" is the argument that ACLU *opponents* traditionally made against the ACLU's policies.

  • Sarcastr0||

    I don't think it's true that if it isn't due process it's not civil rights.
    This isn't the 'Due Process Rights Association.' Since there are considerations on both sides, I'm not going to attack them for that position.

    Just like I'm not going to attack an organization that goes to bat for the due process rights of the accused either.

    SimonP's more substantive analysis of the ACLU's position would seem to have good fodder to take issue with them, if you really need to.

  • James Pollock||

    "The argument 'due process rights need to be balanced against other considerations of justice' is the argument that ACLU *opponents* traditionally made against the ACLU's policies."

    And from this fact, you've determined that it must be false?

  • TwelveInchPianist||

    "Throwing in white is revealing perhaps more than you want it to about your narrative about the ACLU."

    Why? You're familiar with the studies about who is most often punished by these rules, and who the accusers are, no?

  • Sarcastr0||

    Completely collateral to your main point, though, isn't it?

  • TwelveInchPianist||

    No. You wouldn't be shocked if the ACLU had come out the other way on the Scottsborro case, citing the civil rights of the alleged victims? Same thing here.

  • TwelveInchPianist||

    "I mostly have a pretty clear sense of what I want (formalized procedure that includes confrontation, preponderance standard)."

    Why not just want the accused to be tried in a criminal court, with the full panoply of rights available, and effective punishment available if convicted?

  • Sarcastr0||

    Because the punishment isn't criminal.

    It's a judgement call, but for me a campus that lets a student stick around so long as they're not guilty beyond a reasonable doubt isn't protecting it's student body.

  • TwelveInchPianist||

    "but for me a campus that lets a student stick around so long as they're not guilty beyond a reasonable doubt isn't protecting it's student body."

    So the possible rapist gets kicked out of school to go work and McDonalds, and rapes the women at McDonalds? Because fuck them bitches at McDonalds, amirite? If they didn't want to get raped they should have gone to college?

    Surely Title IX isn't meant to protect women's access to an education at the expense of women's access to the workforce.

  • Sarcastr0||

    Schools' burden of safety extends to McDonalds?!

  • TwelveInchPianist||

    "Schools' burden of safety extends to McDonalds?!"

    Huh? Why would we, or the aclu, want to impose a "burden of safety" on schools that simply moves the problem to McDonalds? Unless we're primarily concerned about right white women getting raped, of course.

  • Armchair Lawyer||

    The issue isn't your viewpoint on the issue (Which you're free to have, and is reasonable).

    It's the ACLU's viewpoint. It's mission statement is to defend civil rights, no matter who is promoting them. Nazis for free speech, the ACLU should support it. Death row inmate accused of raping dozens, the ACLU should support them. Even if they're Nazis. Even if they're rapists. It's analogous to being a lawyer for civil rights. You are supposed to support Civil rights. Not "judge and balance depending on the issues.

    The ACLU now, it's like a lawyer who, instead of arguing for his client, decided to argue against his client. At least in this case.

  • Sarcastr0||

    There are civil rights on both sides. You like one side more, but to argue that picking the other is illegitimate needs a lot more support than anyone here has provided.

    There was not a civil right on the other side when people were angry and Nazis.

  • TwelveInchPianist||

    "There are civil rights on both sides. "

    What's the civil right on the other side? To college students have a right to foist rapists off on non-college students?

    If I am the victim of a crime, but it's not proven beyond a reasonable doubt, do I have a civil right to force the accused to move out of my neighborhood? On what basis?

  • Sarcastr0||

    Same as sexual harassment, hostile work environment, workplace discrimination, etc - equal protection.

    Your arguments that campuses are the same as anywhere else is going against a whole bunch of caselaw. And common sense.

  • Michael Ejercito||

    The victims at issue are students, not employees.

  • Sarcastr0||

    Michael - so they get a different implementation of the right, not no right at all. Right?

  • Michael Ejercito||

    Labor laws do not protect students at all.

  • Sarcastr0||

    Your switch from rights to laws is rather a tell, M.E.

  • Bob from Ohio||

    "Same as sexual harassment, hostile work environment, workplace discrimination, etc - equal protection."

    How does equal protection affect private employers, which "sexual harassment, hostile work environment, workplace discrimination" laws affect?

    Title IX is not limited to public institutions.

  • James Pollock||

    "If I am the victim of a crime, but it's not proven beyond a reasonable doubt, do I have a civil right to force the accused to move out of my neighborhood?"

    Sometimes.

    "On what basis?"

    An administrative hearing, usually. Power politics, sometimes.

    If I am an educational institution, do I have a right to determine who may be a member of my student body? On what grounds may I select one candidate over another, and on what grounds may I sever connections to a student who was previously admitted?

  • Armchair Lawyer||

    I've answered this above, but according to your definition of civil right, for example, the "right to be free of harassment" by allowing Nazis to have free speech, you impede on the rights of people who don't want to hear it.

    So, in order to protect civil rights, you need to censor the Nazis.

  • Sarcastr0||

    Sexual harassment isn't just about being offended.

  • Armchair Lawyer||

    True, sexual harrassment isn't just about being offended. But what rights are you willing to curtail to eliminate or reduce sexual harrassment? Should we get rid of privacy rights? Reduce due process? Perhaps get rid of certain areas of freedom of speech? Certain words, when said in any context, are illegal, resulting in fines or jail?

    Honestly, this isn't about you though. It's about an organization that has a mission statement and long history of protecting those privacy rights, those due process rights, protecting freedom of speech. And recently effectively saying..."Due process isn't important here".

  • James Pollock||

    "So, in order to protect civil rights, you need to censor the Nazis."

    Every right has limits. Usually, those limits involve the rights of other people. The right to use your property as you see fit vs. the right of your neighbors to quiet enjoyment of their property, for example.

    Every time you choose to advocate for rights, you're very likely also advocating for restrictions or infringements of someone else's rights. Nature of the Beast. Sometimes the choice is easy, sometimes harder. But the opportunity to advocate for someone's rights without also being against someone else's... pretty rare.

    (Lost in the argument is the fact that the Nazis never actually marched, and probably never actually intended to do so... the half-dozen or so who would have showed up would have been more pathetic than ominous. But TALKING about marching got them plenty of fuss. Being denied a parade permit was a better outcome for them than actually getting one.)

  • Ronnie Schreiber||

    "Throwing in white is revealing perhaps more than you want it to about your narrative about the ACLU."

    As revealing as you saying that David Bernstein was using white supremicist language?

  • Sarcastr0||

    Amusing people keep jumping to that conclusion.

  • damikesc||

    I'm not taking the ACLU's side on due process on campus, but it is not like there are no civil rights at stake on the other side either.

    There are none for the accused.

    They have every right to go to the police --- except that the "rapes" don't hold up to even the most slight of investigations.

    The accuser is ALWAYS free to go to the police to pursue it.

  • David Bernstein||

    We need to distinguish here between "civil rights" and "civil liberties." The ACLU back in the 60s used to say that both were part of civil liberties. But then there were a series of controversies that made it clear that the two need to be distinguished: hate speech, double jeopardy for federal prosecutions after defendants are acquitted in state court, freedom of association and religious freedom claims vs. civil rights claims. At first, the ACLU sided with civil liberties in most contexts, but then became increasingly wobbly. But I can't think of any case, in any context, where the ACLU asserted that someone got "too much" due process when accused of wrongdoing. Putting "civil rights" above other considerations is what civil rights organizations do. A civil liberties group, like FIRE, doesn't do that.

  • James Pollock||

    "The accuser is ALWAYS free to go to the police to pursue it."

    Yeah. The police don't necessarily do anything about it, but you can go to them.

    The accuser is ALSO free to go to civil court, and the accuser is ALSO free to go with administrative remedies, or ALSO free to involve nobody else.

    The first three are all completely independent of each other.

  • Mr. Hook||

    Further to this, what does "hard left" even mean? The qualifier suggests it's down the line than regular old left, but is it more so than, for example, ultraleft, extreme left, or far left? Where does it stand in relation to, say, Trotsky, Mao, Stalin, Lenin, or Godwin? It's crude rhetoric encouraging the angry reader to come up with their own dystopic definition, to feed their contempt rather than engage their intellect. Lazy language reflects a lazy and/or cynical mind, and Bernstein's consistent tendency to pull out these phrases (or, worse, equate them with liberal) suggests he's less interested in making an intellectual critique than venting his spleen and encouraging others to follow suit. One might call that hackish behaviour, but I don't want to get sued.

  • wareagle||

    given the Duke case, the UVA/Rolling Stone case, Mattress Girl, the dozens of accusations later tossed in court because no finding of a crime could be made, and now Kavanaugh, the 'hard left' defines itself. It relies on the long-since outdated oppressor/oppressed model wherein the man is always wrong. Because reasons.

    It actually stands very close to mao and Lenin in terms of actively working to stifle any dissenting viewpoint, and to marginalize any disagreement as heresy.

  • Sarcastr0||

    Anecdotes abound on both sides.

    very close to Mao and Lenin
    Don't do this.

  • Toranth||

    Today's more extreme college campuses are an excellent comparison to Mao's Red Guard.

    Indoctrinated and extreme, beyond even the intentions of the indoctrinators, the only real difference is that they haven't been killing their targets.

    I don't know why the Lenin comparison is there.

  • Sarcastr0||

    the only real difference is that they haven't been killing their targets.

    Same as the arguments about Bush or Trump being Nazis. They're just like them except for not doing Nazi things!

  • Bob from Ohio||

    "except for not doing Nazi things"

    The Red Guard didn't start our murdering either.

  • jph12||

    God you are dumb. So, so dumb.

  • Toranth||

    Since you are historically ignorant, and utterly fail to understand:

    The Red Guard was the loose name for the ideologically pure students in Chinese universities that made themselves famous for going above and beyond the normal Communist Party rhetoric, attacking their own superiors for wrong-think.
    They would take their very left-wing Communist professors out of the classrooms, stage show trials during which the accused would be 'encouraged' to confess to the sins of ideological impurity. The convicted (they were ALWAYS convicted, having been accused) were then driven from the university, and often from society.
    The students tore down statues, renamed historical sites, defaced 'problematic' buildings or displays, and in general were an intolerant, impractical all around nuisance.
    They even went so far as to cause bodily harm - including a few deaths - to their targets.

    Now, look at the behavior of the mobs on some US campuses - ideologically pure beyond their indoctrinator's expectations, they hound professors that are not pure out of the university and society as they can, they deface displays, tear down statues, demand renaming buildings...
    That 95% of the Red Guard's behaviors. As soon as these mobs hurt someone, they'll be 100%.

  • caseym54||

    The ACLU has never cared one whit that a process unduly favored the accused. The death-penalty appeals process is a perfect example of this, where admitted killers get 30 years of appeals before the sentence is carried out and the odds bet is that they die of old age first.

    They have always favored 100 guilty going free rather than one innocent be jailed, but now their entirely partisan outlook changes everything.

    I was a member once, until I started getting ACLU mail aimed at Republican-haters. They were already dead then. Now the carcass is stinking.

  • TwelveInchPianist||

    It's better to expel 10 innocent men than to wrongfully educate one rapist.

  • wareagle||

    I suspect the ten would disagree. Or we could ask the ones who've actually faced that.

  • Rock Lobster||

    Heh!

  • damikesc||

    Sounds to me like you're begging the question. I don't know much about the issue, but the ACLU is saying the specific process set forth is an unfair process, inappropriately favoring the accused.

    Except we can see the proposal and it does not remotely "inappropriately favor" the accused. Anymore than a court hearing unfairly favors the defendant. The accused, like it or not, has WAY more at stake than the accuser.

  • Sarcastr0||

    Show your work.

  • damikesc||

    The accused, bare minimum, faces massive social ostracization --- even if found completely innocent --- and possible expulsion (which ends their academic career because not many colleges will take a student expelled from another school for "rape" or "sexual assault", even if the decision was bullshit). Their lives are utterly ruined.

    The accusers, whose claims never seem provable by any standard, don't suffer anything.

  • Sarcastr0||

    What if the accuser is correct? Your entire analysis assumes innocence for the man, which is again question begging.

  • damikesc||

    What if the accuser is correct?

    Then not going to the police is one of the most abhorrent decisions they could make. Expulsion is far too lenient a penalty for rape.

    Your entire analysis assumes innocence for the man, which is again question begging.

    Given what constitutes "rape" on college campuses...then, yes, I'd argue the vast majority of men accused are actually quite innocent.

  • Paladin_44||

    I thought the accused only could be found "not guilty", not "innocent".
    But IANAL...

  • jph12||

    "I don't know much about the issue"

    But here are 73 posts pretending that I do.

  • Sarcastr0||

    Doesn't require an expert to hold people to proving their case.

  • jph12||

    Who said anything about an expert, dumbass? There is a pretty damn big gulf between "don't know much" and "expert." Making a meaningful contribution does require a basic understanding of the issues, which you've repeatedly demonstrated you don't have.

  • Toranth||

    "But there are civil rights on both sides!!1!"

  • Sarcastr0||

    And it's telling no one has satisfactorily addressed that criticism.

    Prof. Bernstein cites the history of the ACLU and believes they are now dead due to their non-due process orientation.
    Others have said there are no rights on the other side, that women lie about rape all the time, that the ACLU taking any side at all is bad, that feminists are out of control, that I don't get to point out this argumentative lack because I'm not an expert on the due process rights in campus hearings.

    It's looking more like an outrage-party at a political opposite than an actual argument.

  • Toranth||

    Have you not been reading the comments? Your claim has been addressed repeatedly.

    Your strawman presented here, the (false) extreme representations of arguments, is a good example of why you may not see an argument here - you're aren't addressing most of the arguments, and are instead engaging in fallacies and distractions.

  • Sarcastr0||

    I've went through how people have attempted to address it in my above comment, and it's not a very good show.

    Whose comment might you point to that had a good response?

    Or what would your response be to the argument that the ACLU advocating for the rights of one side and not the side you prefer does not somehow forfeit their standing as an organization that advocates for rights?

  • Gunstar1||

    The fact that you dont seem to understand what a civil liberty is may be why you think no one has addressed your points.

    Protecting someone from unfair adjudication is a core civil liberty. Saying there should be fewer protections because women are often harmed is a civil rights argument.

    The ACLU is making a civil rights argument, not a civil liberty argument. Being that it is supposed to be for civil liberties, do you now see the problem?

  • Sarcastr0||

    Nope - I don't buy that distinction at all; this is the first I've heard of that distinction and I spend time with civil rights lawyers a good amount socially.

    Certainly it's not something brought up in the OP's fire and brimstone.

  • Sarcastr0||

    To be clear, I'm not saying it's not a true distinction in academic circles, just that operatively it's not a distinction worth making.

  • James Pollock||

    :Protecting someone from unfair adjudication is a core civil liberty. Saying there should be fewer protections because women are often harmed is a civil rights argument."

    Protecting someone from being discriminated against because of gender is which?

  • DjDiverDan||

    "I don't know much about the issue."

    Given that this is your comment, I think that pretty much goes without saying. On pretty much every issue you comment on. And yet that never seems to discourage your vapid pontifications.

  • David Nieporent||

    I don't know much about the issue,

    That's kind of the one accurate thing you said there. Perhaps you should find out, before questioning whether Prof. Bernstein's description is right?

  • Sarcastr0||

    Read what I said. I'm not saying Prof. B is factually wrong, I'm saying what he's objecting to doesn't seem to be what the ACLU did.

  • Incredulous||

    As you point out , you don't seem to know much about the issue.

    The ACLU basically stated that due process is "an unfair process."

    What else do you need to know? For the ACLU to oppose basic rights such as due process for the accused is insane. It's as anti-civil liberties as you can get.

  • Sarcastr0||

    The ACLU stated that the process put forth by the Trump admin was unfair.

    Whether that goes beyond due process to favor the accused or not is the whole debate.

  • Malvolio||

    the ACLU is saying the specific process set forth is an unfair process, inappropriately favoring the accused.

    That's true, but the specific process is basic due process: the right to be notified of the charges against you, the right to confront your accuser, and so on.

    Yes, I can imagine a specific process that the ACLU might legitimately object to as "inappropriately favoring the accused" — the witness must testify under torture, requirement for proof beyond the possibility error — but that's not what happened here. The ACLU was complaining about the thinnest protections for the accused.

  • Sarcastr0||

    It's a bit burred now, but read SimonP's posts. They lay out how the ACLU's position is reasonable, if perhaps not correct.

  • James Pollock||

    You're assuming a willingness to address facts rather than talking points.

  • Armchair Lawyer||

    The day the ACLU said a ruling "inappropriately favors the rights of the accused" is the day it died. An organization that only favors these rights when politically convenient may as well not exist. Just like an organization dedicated to protecting animals that ends up killing them all.

    We need a new, real, civil liberties organization, dedicated to free speech, freedom of religion, the rights of the accused, and all the civil liberties. Any options, beyond FIRE?

  • Ed Grinberg||

    The Republican Party?

  • Remember to keep it all polit||

    Many many years ago, I sent the ACLU some money; don't remember if I actually "joined" it, if there was such a thing as membership; but I sent them some small amount. They acted like a Nigerian prince spammer. I got tons of snail mail over the next several years, so much that any reasonable accounting of just postage alone would show they had wasted many times what I had donated. That soured me on them. Why should I trust any organization with such inept accounting that they didn't cut off the junk mail after the first few got no response?

    They kept beating the drum for gun control, acting as if the founders had somehow snuck a government right amendment into the bill of rights, when all others were for the people, and contrary to all the founders public sayings. It was sort of ignoreable up until Heller, and they trotted out the old excuse that each branch was independent as if to hide the shame.

    Finally, like Professor Bernstein recounts, they branched out into so many peripheral issues that the central issue of liberty of individual against the government got lost in the shuffle, and my last iota of respect just vanished like waking up from a dream that you begin to doubt you even had.

    Just another shrill pressure group.

  • SimonP||

    Feel free to examine the ACLU's actual argument against the proposed regs, rather than David's hysterical interpretation of a tweet.

  • Toranth||

    Reading the ACLU further expand upon their foolishness (based on a conglomeration of lies and "victim's rights" absurdities) does not improve their position.

    "Civil liberties" cannot mean "less protection from abuses of power".

  • I Callahan||

    First, it isn't a shrill interpretation of a tweet; it's a direct quote of it. Second, the prospective regs require real due process. Which doesn't exist now.

    Care to have the stones to actually address those regs yourself, as opposed to the constant ad-homs you've spewed in this thread?

  • SimonP||

    The ACLU commends the aspects of the reforms that provide for "due process." What they criticize, vis-a-vis "accuseds," is (i) a heightened burden of proof, (ii) a narrowing construction of "actionable" sexual harassment, and (iii) a narrow "actual knowledge" standard.

    I have "the stones" to debate this issue with anyone who is willing to come to the question with some actual familiarity with the issue and the relevant legal framework. As far as I've seen, most of the people attacking me are just uncritically repeating the conservative spin they've picked up elsewhere.

  • TwelveInchPianist||

    "I have "the stones" to debate this issue with anyone who is willing to come to the question with some actual familiarity with the issue and the relevant legal framework."
    ...
    "What they criticize, vis-a-vis "accuseds," is ... a narrowing construction of "actionable" sexual harassment"

    OK. The Obama-era DCL used an extremely broad definition, "unwelcome conduct of a sexual nature". So suppose, for example, a female student told a male student, "Let's make out, but I don't want it to lead to anything else..." and a half-hour into the make-out session the male student suggested that it lead to something else. Under the prior rules, if the school heard of such an incident, the school would have to investigate the incident and punish the male student, lest the female student be deprived of her right to an education. Do we really want such a broad rule, or are these investigations overly intrusive into students' lives?

  • David Bernstein||

    The real problem is that the Obama folks simply made up the standard, for which there is no legal precedent. Instead, the new proposed reg. takes its standard directly from a directly-on-point Supreme Court opinion. The reason the Obama DOE never tried to make this a formal rule instead of "guidance" is that they knew it would never be upheld in court. If nothing else, one would think the ACLU would oppose the power of government bureaucrats to simply make up rules imposing massive legal liability on universities while refusing to make them judicially challengeable, even if it was ok with the substance.

  • Michael Ejercito||

    And some people say that the Obama administration had no scandals.

  • Sarcastr0||

    Bad policy isn't quite a scandal...

  • Brett Bellmore||

    The media not being terribly interested isn't the same thing as not having a scandal, either.

    Bad policy isn't necessarily a scandal, but it certainly can be a scandal, if it's bad enough. Like having a policy of using abusive threats of adverse regulatory actions to coerce third parties to engage in rights violations. (Actually, that describes several Obama administration scandals, doesn't it?)

  • Sarcastr0||

    Scandals in your mind don't matter.

    There's a reason the right has returned to Hillary as their villain and Obama has faded in their screeds.

  • Malvolio||

    No, but this one should have been.

    And oh, shocker, a disproportionate chunk of the negatively affected were black males.

  • Sarcastr0||

    Should have been scandals fun game to play but without much upshot in outside the partisan world.

    In the end, whether by demeanor, press bias, actual integrity, or contrast to his successor, And some people say that the Obama administration had no scandals. is just wishful thinking. Dude had no scandals, and the GOP has discarded him as the Muslim Commie usurper they went on and on about a few years ago.

  • James Pollock||

    "The real problem is that the Obama folks simply made up the standard, for which there is no legal precedent."

    The legal precedent for administrative hearings is "as long as it isn't arbitrary and capricious..."

  • SimonP||

    OK. The Obama-era DCL used an extremely broad definition, "unwelcome conduct of a sexual nature"....

    I think your description is accurate, and I agree with David's criticism of this standard. I was frankly surprised, when I first started digging into this issue, to discover how much Obama was trying to wring out of a statute ostensibly about equal access to education.

    That's why I say, elsewhere in this discussion, that I think Title IX is the completely wrong mechanism for addressing this issue, including because (as David points out) some of DeVos's reforms do have a plausible legal basis.

    So, while I endeavor to understand the ACLU's position on this, and I think they are being criticized too harshly on Reason/VC's pages, I cannot say that I ultimately approve of the regime they would apparently endorse.

  • James Pollock||

    "Under the prior rules, if the school heard of such an incident, the school would have to investigate the incident and punish the male student"

    In general, I like investigations to happen before decisions are made. As for punishment, the guy gets called into the dean's office, told "don't do that". Case closed.

  • damikesc||

    The ACLU commends the aspects of the reforms that provide for "due process." What they criticize, vis-a-vis "accuseds," is (i) a heightened burden of proof, (ii) a narrowing construction of "actionable" sexual harassment, and (iii) a narrow "actual knowledge" standard.

    So they criticize basically all of the reforms that provide for due process. Got it. Thanks.

  • Remember to keep it all polit||

    Feel free to respond to my post instead of starting your own on your own terms.

    Everything I said was in general terms of the ACLU losing its way as far as individual civil liberties in the face of government heavy handedness.

    As for your particular hobby horse, are official pronouncements from the ACLU fair game? They certainly are shrill and hysterical on their own, and contrary to everything related to civil liberties.

  • Ronnie Schreiber||

    Hysterical? Is it really necessary to use sexist language?

  • Rock Lobster||

    According to the Humpty Dumpty principle of PC communication (Words mean precisely what the left intends them to mean--no more, no less), it's okay when he does it. It's just not okay when you do it, because connotations.

  • Incredulous||

    I can't find any "actual argument" by the ACLU other than the "hysterical" tweet opposing due process for the accused.

  • TwelveInchPianist||

    There is absolutely no reason for universities to by trying cases of sexual assault. If there is an epidemic of rape on campus, with one in for women on campus being raped, as the feminists claim, this is a law enforce problem, not an education problem, and we need to handle it in the legal system, with full-fledged criminal rights, and punishments.

  • SimonP||

    Why do you think women aren't turning to the police, in the first place?

    There are many reasons why criminal enforcement hasn't been the default already. Higher standards of proof; low rates of convictions; difficulty in even interesting the police in investigating properly; real and felt pressure not to report; and so on.

    When a 19-year-old woman (say) drinks too much at a frat party and has sex with a 20-year-old man that isn't fully or clearly consensual, what should she do? She may not have the life experience or understanding to decide whether she's been raped or not. She may not know how best to approach the police, preserve evidence, and so on. (And the man, for his part, also likely doesn't have the life experience or understanding to avoid these kinds of situations himself.) Is she to do nothing?

    It doesn't seem right to expel a male student, with little recourse or opportunity for due process, on the mere say-so of a woman who claims to have been raped by him. At the same time, criminal process may not be the appropriate venue, either. Schools need to find ways to address these situations in a way that allows both parties (i.e., when criminality is not established) to continue to learn safely.

  • wareagle||

    When a 19-year-old woman (say) drinks too much at a frat party and has sex with a 20-year-old man that isn't fully or clearly consensual, what should she do?

    She should improve her relationship with booze and its effects on one's decision-making ability. Regret is not rape. And how is the similarly drunk guy supposed to recognize that the sex is not "fully or clearly consensual'? In the absence of a clear no or some display of resistance, the default is yes.

  • James Pollock||

    "She should improve her relationship with booze and its effects on one's decision-making ability"

    Agreed. But that takes time and practice. For that matter, so does her relationship with hormones and one's decision-making ability, and just plain inexperience.

    "And how is the similarly drunk guy supposed to recognize that the sex is not "fully or clearly consensual'?"

    The same way sober dudes do... by assuming it isn't unless specifically informed otherwise, and lying motionless is not a way to give consent.

    "In the absence of a clear no or some display of resistance, the default is yes."

    That's rape.
    Consider a slightly different variation. Instead of trying to get laid, you're trying to get ahold of somebody else's wallet. If they're too drunk to resist you when you pull their wallet out of their possession, that doesn't mean you can go spend their cash. The default answer to "can I take your wallet and go spend your cash?" is not "yes, unless they display some resistance", either. The answer CAN be yes, but it isn't unless it really and definitely was. Get it?

  • Ben_||

    Suggestion for institutions: drunken student hookups are none of your business. If a crime was committed, that's a police matter. If not, it's a private matter. In neither case is it an institutional matter. Stick to academics and butt out of the socializing.

  • Harvey Mosley||

    What if a 19 year old man drinks too much at a party and has sex with a 20 year old woman that isn't fully or clearly consensual?

    Are we saying that women are not able to function in society without being protected by others? I think if you said something along the lines of "women shouldn't be police officers unless they are partnered with a man to protect them" you would get an interesting response.

  • damikesc||

    Why do you think women aren't turning to the police, in the first place?

    Because lying to railroad a guy who upset might cause them problems if the police are involved?

    When a 19-year-old woman (say) drinks too much at a frat party and has sex with a 20-year-old man that isn't fully or clearly consensual, what should she do?

    And if HE is also drunk? She equally raped him in that situation, correct? So, what should she do? Well, I guess "Hey, don't get drunk at a frat party" is something we cannot consider. Again, why is her being drunk absolve her of ALL responsibility?

    She may not have the life experience or understanding to decide whether she's been raped or not.

    If you are not sure if you've been raped...you've not been raped.

    Schools need to find ways to address these situations in a way that allows both parties (i.e., when criminality is not established) to continue to learn safely.

    My empathy for plaintiffs is trumped by empathy for defendants. Sorry.

  • Sarcastr0||

    Because lying to railroad a guy...
    ...
    My empathy for plaintiffs is trumped by empathy for defendants

    That's not empathy, chief.

  • damikesc||

    Very much is.

    Look at Paul Nungesser. He had to have the college --- that even said he didn't do it --- reward a woman for a false accusation for a year. He had to have his name dragged thru the mud over nothing.

    All because he did not reciprocate Mattress Girl's affection. That was his crime. And she got a lot of publicity for it while he was ostracized on campus.

    Tell me more about Emma suffered in that as opposed to him.

  • TwelveInchPianist||

    Yup. And Senator Gillibrand invited her to the SOTU, as a woman whose only claim to fame was that the person she accused was found not responsible under the permissive Obama DCL process with a "preponderance" standard. How are the Dem's not attacking Due Process again? Why invite a woman who is probably a false accuser to the SOTU, and make her a left wing hero?

  • Sarcastr0||

    What a blizzard of anecdote!
    Proves nothing except that both of you have picked a side.

  • Malvolio||

    Are you suggesting that there is a shortage of cases where exactly this happened? That Nungesser is exceptional?

  • Sarcastr0||

    I'm suggesting there are anecdotes both ways, and none of them should be used to generalize into some larger truth.

  • James Pollock||

    "And if HE is also drunk? She equally raped him in that situation, correct?"

    If he was the one in the Dean's office making a complaint...

  • Incredulous||

    No, it's really none of the school's business. At best, it's an ambiguous situation and the norm for human behavior. Assuming that the male is a rapist if alcohol is involved is insane. And sorting out which person might have assaulted the other is a criminal issue best dealt with by the criminal justice system. But it's usually impossible to determine with any certainty whether an assault occurred, let alone who assaulted whom.

  • bernard11||

    Do you think there are cases of misbehavior by students that don't rise, or sink, to the level of criminal conduct, or that the local authorities might be unwilling to pursue, that nonetheless ought to concern the university, and possibly result in disciplining offenders?

  • Brett Bellmore||

    The problem is standards of evidence and process that can result in the discipline for "offenders" who didn't actually do what they were accused of.

    There are multiple dimensions here.

    1) Seriousness of the conduct alleged. Ranges from actual rape rape, to social faux pas.
    2) The degree of evidence the conduct actually happened. Ranges from iron clad to allegations contradicted by evidence.
    3) Asymmetry of application: Sure, declare that drunks can't consent; But then, when both parties are drunk, why is only one disciplined, when neither of them were capable of consent?

    It's not clear to me why the university should be "concerned" with conduct they have no rational reason to believe happened, or which amounts to just not being the perfect romantic partner.

    And the idea that they should sanction only one side in a symmetric situation seriously offends me. Now, if they wanted to put an end to drunken hookup culture on campus, by uniformly adopting a policy of sanctioning both parties, that would be fine.

    But always sanctioning the guy? That isn't sexual equality, it's matriarchy.

  • Sarcastr0||

    Always sanctioning the guy isn't what's happening, though - there are lots of examples of universities covering up stuff like this for obvious reasons.

  • Brett Bellmore||

    I'd identify the tipping point as when they decided that they weren't going to defend the 2nd amendment, or even honestly admit that it guaranteed a civil liberty.

    At that point the NRA was still getting established as a 2nd amendment rights defender, and the whole field was in flux; If they'd taken on defense of the 2nd amendment, they might have lost some of the leftwingers who only cared about civil liberties when they found them useful, but the organization would have swelled its ranks with civil libertarians who cared about the 2nd amendment, too.

    But they were at that point already a predominantly left wing organization, (Having been born such.) and couldn't stomach the idea of associating with right-wing civil libertarians. So the NRA became the 800 lb gorilla, instead of the ACLU.

  • TwelveInchPianist||

    "I'd identify the tipping point as when they decided that they weren't going to defend the 2nd amendment, or even honestly admit that it guaranteed a civil liberty."

    Yup. Even Derschowitz admitted that if you want the bill of rights to be interpreted broadly, you have to be consistent. You shouldn't be taken seriously of you advocate for broad interpretations of some amendments, but then be like, "Well, sure, the 2nd does say that 'the right of the people to keep and bear arms shall not be infringed' but if you squint the right way, maybe this other sentence can be construed to limit this. The aclu is trying the same thing here.

  • SimonP||

    The thing is, I don't see anyone who's gung-ho about the Second Amendment while also seriously concerned about an expansive right to free speech, separation of church and state, criminal justice reform, and so on. A lot of people who are nutty about guns don't care too much about banning Muslims from entering the country, imposing criminal liability on "riotous" public protesters, vindicating the right to discriminate on the basis of religious belief, conduct unwarranted searches of individuals within border zones, and so on. So, on sum, when I think about the rights I care about - I have to side with the ACLU, not the so-called "libertarians" who are really just opposed to government spending.

  • Michael Ejercito||

    You see them in the comments section of Reason.com

  • Sarcastr0||

    I'll give you criminal justice reform. Free speech is less clear.

    But separation of Church and State?!

  • Eddy||

    Reason commenters are generally, um, secular in orientation. There's exceptions and qualifications, but they're about as far from Jerry Falwell, Jr. as you can get while being on the same planet.

  • Sarcastr0||

    Secular, but they know their bedfellows.

  • darkknight9||

    Michael, Sarcastr0, Eddy, two thumbs up, five stars.

  • Seamus||

    You know, the very website you're posting comments on.

  • Harvey Mosley||

    Look at me! Freedom of speech, freedom of religion, freedom of association, freedom to petition the government for a redress of grievances, the right to keep and bear arms, due process, the right to compensation if the government takes our property, the right to an attorney, the right to remain silent, the right to be free from unreasonable searches and seizures, the right to be secure in our homes, papers and possessions, are all an important part of our country and our culture. I believe that anytime there is a clash between an individual's rights and the government the presumption should be in favor of the individual.

    I will admit that my view of these rights has changed over the last 50 years but I consider that a good thing.

    That Third Amendment though. What were they thinking?

  • Harvey Mosley||

    Forgot to add the right not to be shot and killed by an agent of the state just because the agent saw a suspicious movement or someone reaching for their waistband or unable to follow the commands properly to a game of Drunk Twister.

    But at least the officer made it home safe, right?

  • James Pollock||

    "Forgot to add the right not to be shot and killed by an agent of the state just because the agent saw a suspicious movement"

    But in the due process that follows, the officer testifies that he saw suspicious movement, and you don't even show up to testify.

  • Brett Bellmore||

    Well, of course you don't see me, this isn't video chat. That's quite a list, it includes things which certainly are civil liberties, and somethings which really aren't. That's the ACLU's root offense here: Deciding that they could just declare civil liberties to be anything they wanted, without regard to what could actually be found in the Bill of Rights.

    The NRA has actually teamed up with the ACLU on freedom of speech in the past, back when the ACLU still admitted that political speech was protected by the 1st amendment. But the NRA doesn't pretend to be your one stop for all civil liberties, and the ACLU does. So all we need to ask of the NRA is that they don't affirmatively attack other civil liberties, (And mostly they don't. Alas, it's only "mostly".) While the ACLU voluntarily took up the burden of affirmatively defending them all. And then ditched the ones it didn't like, and eventually just defined "civil liberties" as "whatever we feel like defending."

  • James Pollock||

    "Deciding that they could just declare civil liberties to be anything they wanted, without regard to what could actually be found in the Bill of Rights."

    There's some kind of rule that private advocacy organizations are limited to the Bill of Rights?

  • bernard11||

    the leftwingers who only cared about civil liberties when they found them useful,

    Have you ever, once on your life, allowed for the possibility that someone you disagree with might hold their views in good faith, and not have ulterior motives, be part of some vague conspiracy that haunts your nightmares, or be a paid agent of your enemies?

    Ever once?

  • Brett Bellmore||

    The ACLU was founded, literally, by Communists. Communists are not deserving of any presumption of good faith, in fact they've earned the opposite presumption. It's historically understandable, but still an outrage, that communists don't get treated as bad or worse than Nazis.

    They might have overcome that presumption, if they'd chosen to defend all civil liberties, instead of just the ones they happened to like, and then hadn't decided to define "civil liberties" as, "whatever we feel like defending".

  • Ben_||

    Guilt by association — or really just free-floating guilt that can be applied to anyone they want, regardless of fact or justification — is a central feature of the left's understanding of the world these days. Anyone who makes them feel bad or gets in the way of one of their power grabs can be presumed guilty of some terrible crime. If you would sin against their self-justifying "arc of history", that makes you a criminal and you belong in jail (they'll come up with a specific crime later).

    Having spent the last 2+ years teetering on the edge of an emotional breakdown, left's ability to reason is at an all time low. During less stressful times the ACLU was able to maintain the pretense that they cared about civil liberties. Now the mask is off.

  • ||

    They've always been a bunch of anti-American communists who hated whites and hated the 2nd Amendment. They just hid it better.

  • SteveMG||

    My understanding is that it was the "National Socialist Party of America", a neo-Nazi group headquartered in Chicago that wanted to march in Skokie and not the KKK. Skokie was a largely Jewish community at that time and the controversy was about Nazis marching through a Jewish area where a number of Holocaust survivors resided.

  • Eddy||

    Yes, and the ACLU guy who defended them insisted it wasn't a march but a demonstration at a fixed location.

    Then the Blues Brothers helped resolve the issue.

  • Eddy||

    They started out fairly radical, then decided in 1940 not to have commies on their board, which is the position they were still in during the 60s. In the 70s, IIRC, they apologized for kicking out their commie board member (Flynn).

    If they believed in freedom of political association, you'd think they'd believe in their own freedom not to associate with outright totalitarians who at minimum support the suppression of civil liberties abroad.

    So in theory they're open to having commies on their board. Take that, Joe McCarthy!

  • Bob from Ohio||

    "then decided in 1940 not to have commies on their board"

    When are they going to implement that plan?

  • Rock Lobster||

    Ironically enough, that turned out to be impractical.

  • Brett Bellmore||

    Well, of course it was impractical: The organization was founded by communists, what were they going to do, expel their entire board except for a few non-communists just hired for show?

  • bernard11||

    If they believed in freedom of political association, you'd think they'd believe in their own freedom not to associate with outright totalitarians who at minimum support the suppression of civil liberties abroad.

    I don't get your point, Eddy. Believing in freedom of association doesn't mean you have to associate with those you would prefer not to associate with.

  • Eddy||

    Right, they should say explicitly, "no totalitarians on our board." And then not apologize.

  • Eddy||

    The New York Times, reporting on the apology in 1976:

    "The resolution repealing the 1940 expulsion was adopted by the current board at its April meeting and announced yesterday. It stated that the expulsion "was not consonant with the basin (basic?) principles on which the A.C.L.U. was founded." There was no evidence that she had ever violated these principles, the resolution states."

    https://nyti.ms/2DtvaeE

  • Bob from Ohio||

    Liberals: Our institutions [including our educational institutions] treat black men highly unfairly and black men are unfairly targeted for criminal prosecution.

    Same liberals: Lets let our educational institutions have standard-less hearings aimed at men who allegedly sexually assault.

  • Seamus||

    The ACLU needs to take this page down from its website (https://bit.ly/2Bd9t0X), which problematically celebrates a case where it failed to #BelieveWomen and served as rape apologists, undermining the right of women to ride boxcars in an environment free of such harassment and assault.

  • decius||

    The charitable position here is that in this context the ACLU's commitment to defend the civil liberties of the accused is in conflict with their commitment to defend the civil rights of college students to be protected from harassment. However, you'd think that if they recognized the gravity of that conflict, they would have addressed this topic in a more careful and nuanced manner.

    For example, reasonable people think that a preponderance standard is the right standard for judging these cases, but there are also reasonable arguments for a clear and convincing standard. Those arguments include the fact that these are criminal allegations that might objectively demand a higher burden of proof, and because there are other procedural deficiencies in these proceedings that make a preponderance standard less fair in practice than in might appear to be on paper. Earlier this year a federal court ruled that the preponderance standard was unconstitutional.

    The ACLU's blog post dismisses the very legitimacy of disagreement about this, characterizing any such concerns as "a fig leaf to roll back students' right to learn in an environment that takes sexual harassment and assault seriously." In doing so they are not just attacking civil liberties, they are also directly attacking the earnestness of civil libertarians who disagree with the positions they have taken on this issue.

    If the ACLU views civil libertarians as the enemy, what have they become?.

  • Ed Grinberg||

    A partisan (leftist) advocacy / "lawfare" group, with no serious scruples about civil liberties. Between civil liberties and party interests, party interests take precedence. When the former are an obstacle to the latter, they must be attacked / undermined / eliminated. As commenter Armchair Lawyer said above: "When the next Democratic administration comes up, and starts stripping the civil liberties from the people...the ACLU will be right there, supporting the administration in the elimination of rights."

  • James Pollock||

    " Those arguments include the fact that these are criminal allegations that might objectively demand a higher burden of proof"

    This is a ridiculous claim.
    It is not the allegation that sets the burden of proof, it is the potential punishment. Criminal trials may impose loss of freedom, and thus have the highest burden of proof. Civil trials are about money, and so require a lower burden of proof.
    Disciplinary proceedings in colleges are about whether or not a person's association with the institution will be severed, and thus the lowest burden of proof.

  • KevinP||

    A student expelled from an institution will likely have lost tens of thousands of dollars in tuition fees and expenses and may find it very difficult to be admitted to any other university, literally changing his life for the worse forever.

    So the burden of proof should be just as high as a civil trial.

  • decius||

    Restating my position, I could be convinced that ACLU has their law right, but I don't think the counter-arguments are facially ridiculous. In their blog post the ACLU states that the civil trial standard makes sense here because both sides have something to lose. For example, a victim whose attacker is not expelled may feel that they have to transfer to another school, and thats extremely unfair, but a falsely convicted student may be unable to transfer to any other school due to transcript records of the reason for the expulsion, so the stakes may be higher for the accused.

    Regardless, I used the burden of proof as an example. There are a myriad of questions that have been raised from a variety of quarters (including an American Bar Association Task Force) over the fairness of these proceedings. It is surprising to see the ACLU take the position that there is really no problem here, but it would be a more compelling position if presented magnanimously.

    Instead, their post devotes a single understated sentence to acknowledging that these reforms ensure the accused has access to exculpatory evidence, before launching into a full throated attack on both the consequences of these reforms and the motivations of the people behind them. To me, this does not sound the like the position of a group that is prepared to fight hard to protect fair processes in this context and it undermines the confidence that I had previously placed in them to do that.

  • Rock Lobster||

    Not true! They are merely picking their battles more carefully. In fact, by recognizing that defending those guilty of wrongthink is wasteful of limited resources, the ACLU is now actually trying twice as hard to defend civil liberties.

    You might even say that they've doubled their standards.

  • Rock Lobster||

    Not true! They are merely picking their battles more carefully. In fact, by recognizing that defending those guilty of wrongthink is wasteful of limited resources, the ACLU is now actually trying twice as hard to defend civil liberties.

    You might even say that they've doubled their standards.

  • Tall Paul||

    Who was it that said certain institutions begin as a good cause, morph into a business, and end up as a racket?

  • Rock Lobster||

    Caitlyn Jenner?

  • James Pollock||

    "Who was it that said certain institutions begin as a good cause, morph into a business, and end up as a racket?"

    The Republican party?

  • Olga||

    ACLU is still fighting so the Alt Right and people like others can have access to platforms like Facebook at Twitter and they argue that Facebook and Twitter are more like the phone company and less like a small private company. https://www.aclu.org/blog

    Not sure if they should have commented on the Kavanaugh proceedings. I don't think he should have been confirmed, but that is because the confirmation process is a job interview and if you heard the person had issues with drinking and assaulting women you probably wouldn't want to hire him. On top of that, he wasn't that great of a judge and he believes in limitless Presidential power.

    As far as the Department of Education. What colleges did in coming up with a sexual harassment/assault policy took years and multiple groups to come together. There are protections for people that are accused. Now if we don't want any protection for women on campus so women can enjoy student life to the full extent the male students do? Or will be go back to when my aunts were in college and young women had to be in their dorm by 10:00 pm and there were bed checks to be sure they were there. There were no such checks on male students. Female students that were married needed a note from their husband to get their absence excused. For those that think that was 200 years ago, my aunts went to college at a state university in the Midwest in the early 1970s.

  • Rock Lobster||

    "There are protections for people that are accused."

    Such as?

  • James Pollock||

    Very few of them are charged with crimes?

  • Bob from Ohio||

    "Now if we don't want any protection for women on campus so women can enjoy student life to the full extent the male students do?"

    Straw woman alert!

  • Eddy||

    This is a good point, the male students should have to observe curfews, too.

    Of course, with their iThingies, this won't be too hard.

  • Eddy||

    Wait, you mean the male and female students lived in different rooms, or different buildings? What kind of Handmaid's Tale dystopia was that?

  • James Pollock||

    "This is a good point, the male students should have to observe curfews, too."

    Unless they're, you know, adults.

  • Incredulous||

    "if you heard the person had issues with drinking and assaulting women"

    Even if they are completely unsubstantiated allegations from 35 years ago?

    Lol

    "There are protections for people that are accused."

    Like what?

  • James Pollock||

    "Even if they are completely unsubstantiated allegations from 35 years ago?"

    Maybe. But we were talking about Kavanaugh, against whom some of whose allegations were substantiated.

    Were they serious enough to justify making him remain in his lifetime appointment to the DC Circuit? Some conclude yes, some conclude no. He had enough "yes" votes to get the promotion.

  • KevinP||

    What allegations against Kavanaugh were substantiated? Absolutely none! Do you just make stuff up on Volokh, or do you do so everywhere else in your life?

  • SIV||

    "Earl Warren has been accused of being a Communist. He denies it. But Alger Hiss and and Julius Rosenberg were also accused of being Communists, they denied it, but they were lying. So Earl Warren is likely lying, too?"

    I like it. Where's my time machine?

  • James Pollock||

    I have in my hands a list of suspected Communists...

  • Jeff_Kleppe||

    While I won't offer any comment on the merits of David's post, I have to commend his willingness to roll up his sleeves and contend with his critics down here in the comments. If only Ilya would follow his example...

  • Brett Bellmore||

    It's characteristic of people who actually think their position is defensible, that they defend them.

  • James Pollock||

    Meh. Some people think repetition makes things true.

  • Smooth Like a Rhapsody||

    "A college student, accused of sexual assault, has the same due process rights as a showboat, idiot, reporter has to a White House press pass":
    Discuss.

  • Smooth Like a Rhapsody||

    ***should have qualified with:
    (the student's due process rights to remain a student...not to remain free of criminal punishment...)***

  • Sarcastr0||

    That is a pretty clever connection to make.

    I was a bit surprised at that court decision myself - I don't see any constitutional rights implicated for an individual reporter to get to be in the press room at the White House.

    But I suppose a reporter's rights are entangled with the first amendment whereas an accused students' rights are more reputational (though still existant, IMO).

    The bigger distinction for me is on the other side - the President doesn't have a right to be left alone, whereas there are equal protections concerns on the other side.

  • Kazinski||

    Trump Rules is the latest rage in constitutional interpretation, it seems to have superseded both original intent and living constitutionalism in large parts of the judiciary.

    But you are wrong about one thing, a president does have a right to be left alone if he chooses to exercise it. There are no requirement for press conferences or public appearances. Even the State of the Union could be mailed in.

  • Sarcastr0||

    Blah blah bad faith by the judge. I can disagree with a ruling without seeing bad faith everywhere. Trump supporters don't seem to have that skill I guess.

    No requirements isn't the same as a right, a distinction the right is very excited to make in most other matters.

  • Smooth Like a Rhapsody||

    This may be the proto-authoritarian in me, but I don't think either the student, or the reporter, should have an action.
    If State U wants to re-enact in loco parentis, and have (even) a "probable cause" standard, they, like a corporation vs an employee, should be free to dissociate: subject, of course, to all contractual obligations.
    And the idea that the White House can't cold shoulder a reporter for being an ass hat strikes me as ludicrous.

  • James Pollock||

    ""A college student, accused of sexual assault, has the same due process rights as a showboat, idiot, reporter has to a White House press pass":"

    False. The President (and his proxy, the press secretary) are government actors, bound by the Constitution. A college... maybe, maybe not. The first amendment allows "no law" to abridge the freedom of the press. What law requires that college students get to remain college students against the wishes of the institution? Do they apply to other college students who are separated involuntarily from their schools? For cheating? Bad grades? Tuition check bounced?

  • letters2mary||

    Most of us are aware that the manifestation of symptoms may occur long after a disease process has commenced and that, indeed, by the time symptoms are florid, management of the disease process may be difficult at best.

    So it is with the once smart and courageous American Civil Liberties Union. The deterioration of the ACLUs processes began some time ago. Symptoms are now manifest in this Title IX folly.

    The loss of intellectual fortitude in the ACLU cannot be said to be confined to any faction, liberal, conservative, or libertarian. The law and society need organizations willing to challenge government action. That the ACLU now chooses to undermine its once admired credibility affects not just this case, but the positions taken in other cases, to the detriment of all.

  • Toranth||

    Last year, when the national ACLU fought with a local chapter over free speech was the telling moment. I'm only surprised that they would actually be so open with this statement; that attitude itself is expected.

  • Rev. Arthur L. Kirkland||

    Movement conservatives should form separatist, right-wing counterparts to every mainstream organization in America -- a right-wing ACLU, a right-wing AARP, a right-wing NAACP, right-wing Boy Scouts and Girl Scouts, a right-wing National Resources Defense Council, a right-wing American Cancer Society, a right-wing NPR, a right-wing United Negro College Fund, a right-wing Doctors Without Borders, a right-wing National Basketball Association.

    If conservatives wish to split from America's mainstream and become even less involved in crafting the course of American progress, be my guest. America has demonstrated that it can progress against the wishes and without the help of Republicans and conservatives.

  • ||

    Says the man who thinks giving marriage licenses to deviants and letting them adopt children is a sign of progress.

  • James Pollock||

    "the man who thinks giving marriage licenses to deviants"

    I think you should be able to get a marriage license, too.

  • mad_kalak||

    The problem, Rev, (as others have said) is that progressives take over an institution, skin it, and wear around its carcass demanding respect.

  • Sarcastr0||

    Wow the marketplace of ideas has gotten savage!

  • Rev. Arthur L. Kirkland||

    If 'skinning' an organization consists of stripping its taste for stale intolerance, fictional beliefs, and general backwardness, I favor it.

  • Smooth Like a Rhapsody||

    There are several right-wing analogues to the ACLU.
    What would a "right-wing" Boy Scouts look like?
    Do you have any idea of the history of that organization?

  • James Pollock||

    "What would a 'right-wing' Boy Scouts look like?"

    Pretty much any BSA unit in Utah?

    I mean, for sure there'd be some kind of loyalty oath, and some kind of religious requirement, and the gays have to be let in for PR reasons, but they don't really have to be welcomed, if you know what I mean. Citizenship would be a core requirement.

  • eyesay||

    I share Bernstein's view that the ACLU should stand for the rights of the accused and not balance the rights of the accused and the accuser. As for the ACLU's effort to persuade senators to oppose Kavanaugh, the ACLU's argument was analogy, not guilt by association. The ACLU presented powerful men widely understood to have used their power to force others into sexual submission and then lied about it. In ACLU's view, it's obvious that Dr. Blasey was truthful and Kavanaugh assaulted her and lied about it. In that view, it makes sense to say, "Senator, of course you wouldn't put a man like Cosby or Weinstein on the Supreme Court after what they did. Please treat Kavanaugh the same after what he did." This ad was unsuccessful, perhaps because senators didn't share the ACLU's view that (of course) Dr. Blasey was telling the truth. Some readers here may believe that ACLU's "of course" credulity toward Dr. Blasey is undeserved. I suppose the ACLU ad was worth a try. But I think the ACLU's inclusion of Bill Clinton was a mistake for two reasons. First, unlike Cosby and Weinstein, Clinton did not use his position to force himself on Lewinsky; she was the aggressor in that episode. And Clinton's words "I did not have sexual relations with that woman" were true. Merriam Webster: Sexual relations is coitus not oral sex. Clinton neither forced Lewinsky into sex nor lied about it; he shouldn't have been in the ad.

  • Incredulous||

    This seems like a lot of mumbo jumbo.

    The ACLU ad was pure unadulterated crap, no matter how you spin it. It assumes guilty until proven innocent or maybe guilt by virtue of being male. It's f-ing insane for a supposed civil liberties association to put forth such an ad.

  • ||

    Bill Clinton was the President. Lewinsky was a 22 year old intern. That power imbalance is force, whether physical or not.

  • Sarcastr0||

    You want to take away the power of the vote from women.

  • James Pollock||

    "I share Bernstein's view that the ACLU should stand for the rights of the accused and not balance the rights of the accused and the accuser."

    Neither of which matters. What matters is what the ACLU members think the ACLU should stand for.

    Objecting to the organization considering the effects of their advocacy is beyond stupid... we need a lot MORE of that, not less.

  • Incredulous||

    This seems like a lot of mumbo jumbo.

    The ACLU ad was pure unadulterated crap, no matter how you spin it. It assumes guilty until proven innocent or maybe guilt by virtue of being male. It's f-ing insane for a supposed civil liberties association to put forth such an ad.

  • ||

    I think that a lot of what David says is difficult to criticize. But I'd take issue with how he sweeps up the affiliates with the national organization. David declines to distinguish between national and the affiliates, and I think this is a mistake.

    The affiliates, not national, have traditionally been the boots on the ground in fighting for rights. The "ACLU" as such is a very decentralized thing. Affiliates have even been on opposite sides of the v. from the national organization.

    Each affiliate should be judged on its own merits as an organization, not lumped with the national organization. So in this way, I think David's view is really unfair to some of the affiliates. David knows that there is this difference--he has been appropriately critical of the ACLU for a long time. But declining to distinguish between national and affiliates here is really inappropriate.

  • eyesay||

    Both the anti-Brett Kavanaugh video ad and the Title IX regulation response came from the ACLU itself, not state or local chapters.

  • James Pollock||

    How do these facts alter the claim that the national and the affiliates should be differentiated?

  • Newreach||

    We need a free America

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online