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.
Last week, the NRA kept defending gun rights, the AARP kept advocating for older Americans, and the California Avocado Commission was as steadfast as ever in touting “nature’s highest achievement.” By contrast, the ACLU issued a public statement that constituted a stark, shortsighted betrayal of the organization’s historic mission: It vehemently opposed stronger due-process rights for the accused.
The matter began when Secretary of Education Betsy DeVos put forth new guidelines on how to comply with Title IX, the law that forbids colleges that receive federal funding to exclude any students, deny them benefits, or subject them to any discrimination on the basis of sex.
The most controversial changes concern what happens when a student stands accused of sexual misbehavior. “Under the new rules, schools would be required to hold live hearings and would no longer rely on a so-called single investigator model,” The New York Times reports. “Accusers and students accused of sexual assault must be allowed to cross-examine each other through an adviser or lawyer. The rules require that the live hearings be conducted by a neutral decision maker and conducted with a presumption of innocence. Both parties would have equal access to all the evidence that school investigators use to determine facts of the case, and a chance to appeal decisions.” What’s more, colleges will now have the option to choose a somewhat higher evidentiary standard, requiring “clear and convincing evidence” rather than “a preponderance of the evidence” in order to establish someone’s guilt.
The ACLU doesn’t object to any of those due-process protections when a person faces criminal charges. Indeed, it favors an even higher burden of proof, “beyond a reasonable doubt,” to find an individual guilty.
But the ACLU opposes the new rules for campuses. “Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. We strongly oppose it,” the organization stated on Twitter. “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence. We will continue to support survivors.”
One line in particular was shocking to civil libertarians: It promotes an unfair process, inappropriately favoring the accused. Since when does the ACLU believe a process that favors the accused is inappropriate or unfair?
Not when a prosecutor believes she has identified a serial rapist, or a mass murderer, or a terrorist. In those instances, it is the ACLU’s enemies who declare that crime is alarmingly high and reason that strong due-process rights therefore make the world unacceptably unsafe. It is the ACLU’s enemies who conflate supporting survivors of violent crime with weakening protections that guard against punishing innocents. Those enemies now have the ACLU’s own words to use against it.