![]() If the ACLU is now taking the position that this disparity is discriminatory, it must have quite a few more lawsuits in mind - as it opposes not just Title IX reform, but decades of discrimination law more generally. They are different bodies of law directed at resolving different problems that were enacted at different times, amended at different times, and subject to different precedents. However, no one debates that the standards are different. Whether this difference is a feature or a flaw is something law review articles have debated for decades. The Supreme Court itself applies different levels of scrutiny to gender-based discrimination claims than it does to race-based claims. Unfortunately, for all its elegance, it is an ahistorical view. The theory that all harassment is the same and should be subject to the same legal standard has a certain appeal. The argument asserts that if it is harder for a complainant to prevail in a sexual harassment claim than a racial harassment claim, complainants in sexual harassment claims are being discriminated against. The ACLU's lawsuit argues that the new Title IX regulations' use of the Davis standard is unlawful and discriminatory against women because the regulations do not require colleges to use the same standard in gender discrimination cases as they do in racial discrimination cases. Cole countered that the ACLU’s objections to the regulations are primarily with its use of the speech-protective Davis standard, not its due process protections. In general, critics suggested that the ACLU’s lawsuit effectively puts them at odds with providing due process to those accused of sexual misconduct on campus. On May 21, ACLU national legal director David Cole responded. There have been a series of pieces from writers and publications criticizing the ACLU’s Title IX lawsuit. While the question in Davis was if and when an institution could be held liable for damages under Title IX for failing to address peer-on-peer harassment, several federal courts have subsequently used it in cases involving equitable relief for harassment and in evaluating the constitutionality of campus anti-harassment policies. The Davis standard was crafted by Justice Sandra Day O’Connor in a majority opinion joined by Justices Ruth Bader Ginsberg, John Paul Stevens, David Souter, and Stephen Breyer to avoid providing schools an incentive to censor protected speech in order to "over-comply" with their Title IX obligations. FIRE’s position is that anything less is insufficiently protective of speech. The ACLU’s position is that the Davis standard is insufficiently protective of accusers. The ‘Davis’ standard and the ACLU’s positionĪs put forth by the new regulations, the Davis standard defines peer-on-peer harassment as "nwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity." Following Davis, the Department of Education's new regulations also prohibit schools from being “'deliberately indifferent' to sexual misconduct.” ![]() If the ACLU’s lawsuit were to succeed, it would erase one of the biggest victories for campus free speech in decades. However, the Supreme Court’s Davis standard, which skillfully drew a line between harassment and protected free speech, remains the best bulwark against the creeping reach of speech codes on college campuses. ![]() I don't often find it necessary to publicly disagree with the ACLU on a free speech issue. On May 14, the ACLU filed a lawsuit to block the use of that definition of harassment from becoming the department’s official policy. Monroe County Board of Education (the “Davis standard”). As part of those regulations, the department mandated that institutions use a speech-protective definition of sexual harassment - one adopted by the Supreme Court in 1999 in a case called Davis v. On May 6, the Department of Education issued new regulations governing the way colleges and universities must address claims of sexual misconduct under Title IX. ![]()
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