Thursday, November 1, 2012

ACLU's acceptance of "Dear Colleague" letter standards: a betrayal of progressive values

The Obama administration's April 4, 2011 "Dear Colleague" letter, which lowered the standard of proof to find guilt in cases of sexual misconduct on campus to a mere "preponderance of the evidence," is an affront to the community of the wrongly accused because it mandates that schools change their rules to make it far too easy to punish the innocent for offenses they didn't commit. The suggestion that this standard is necessary to comply with the law is simply wrong. Colleges are legally permitted to apply a clear presumption of innocence to disciplinary proceedings, and civil-rights laws like Title IX do not override that right. Colleges are liable only for their own culpable failure to respond to  harassment in a reasonable fashion, but such response does not require dispensing with students' clear presumption of innocence.

Yet, for the first time, some who call themselves progressives are applauding a government effort to roll back, in a blatant and significant way, the due process rights of persons accused of wrongdoing.

Yesterday, Katherine A. Greenier, Director, Patricia M. Arnold Women’s Rights Project, ACLU of Virginia, wrote a piece that tacitly supports this effort.  We respectfully suggest that this represents nothing less than a betrayal of traditional progressive values.

First, Ms. Greenier makes this erroneous statement: "The OCR advised the schools to use the standard of a 'preponderance of the evidence' that is usually applied in civil rights lawsuits and administrative proceedings rather than the heightened proof standards normally applied in criminal proceedings."

In fact, most schools previously utilized the "clear and convincing evidence" standard, which is lower than the criminal standard of "beyond a reasonable doubt." The "clear and convincing" standard is sometimes applied in civil actions for monetary damages, and college disciplinary proceedings implicate interests more significant than civil actions seeking monetary damages. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman of Cornell has explained.

Second, Ms. Greenier's statement suggests a fealty to group identity politics that has the perverse effect of allying progressives with law and order conservatives who typically have fought the expansion of individual due process rights at every turn.

Over the past century, valiant progressives at the ACLU, the Southern Poverty Law Center, and many other organizations fought to uphold due process rights for Americans any time they were in danger of being taken away. In the 1950s and 60s, they waged many famous battles to insure that presumptively innocent persons accused of crimes were afforded individual due process rights. At other times, they successfully advocated that communists seeking to exercise First Amendment rights, that Japanese-Americans imprisoned during World War II, and that the homeless rounded up just for being on the streets, were all entitled to due process. One could probably chronicle the history of our nation in the 20th Century by tracing the unstinting efforts of liberal reformers to insure that the innocent aren't punished by unjust laws. Their efforts made our people more tolerant of one another, and more accepting of diversity.

It is for this reason that the Obama administration's April 4, 2011 "Dear Colleague" letter, and the wholesale acceptance by some progressives of that letter, are so jarring, and so wrong. Those who defend the "Dear Colleague" letter sweep over the rights of the presumptively innocent like a high-speed rail and do not address even the possibility that a college disciplinary proceeding might get it wrong when the standard of proof is so low.

Some of those same progressives will read this post and will roll their eyes at the very suggestion that a law affecting primarily young white males is worthy of anyone's advocacy. That attitude itself is, of course, a betrayal of the principles of equal justice under law, and it evinces an unbecoming PC elitism that sadly flavors the efforts of the campus sexual grievance industry.


  1. I apologize if I missed it, but has Wendy Kaminer, former ACLU board member and now frequent ACLU critic written about this? What are her views?

    It might be valuable if you were to devote a page to quotes about the Dear Colleague letter from noted civil libertarians including:

    Wendy Kaminer
    Jonathan Turley
    Alan Dershowitz
    Ira Glasser (former head of the ACLU)
    Lawrence Tribe

  2. When we see persons of prominence take a stand on the "Dear Colleague" letter, we have always referenced it in a post. If you are aware of whether these people have taken stands, kindly advise, and we'll reference them. It is not an issue that excites the left because the victim class is not a class that excites the left.

  3. Sad.

    The bastion of free speech and civil rights selling out to feminist political correctness.

    Just sad.


  4. PS: can someone reply to my email about wanting to guest-post about False Rape Accusation issues? Please post a comment on if you did not get my email. I do NOT read the google email linked to here.

  5. Thanks Pierce,

    My suggestion, based on my being just some anonymous dude, would be for you to contact them and see if you can either alert them to the issue or see what they have to say about it.

    Re: the first four, one reason I mentioned them is that they are not purely of the left, and often have been targeted by the left.

    My guess is it is likely the first four if educated on this issue would speak against it. And if they supported it, they would actually have something interesting to say (as opposed to so many other yada yada opinions.)

  6. Cannot what one President's administrative department put in place not be just as easily done away with by the next President's administration?

    Would not "another" letter from the same office within the same cabinet department make this as though it had never happened?

    If college males are so overweeningly stupid as to vote to retain the incumbent, I'm afraid that I'd have to say they deserve whatever is served up them!


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