ACLU goes on the offensive against New York Times for questioning its commitment to free speech

Lawyer for accused black students rips civil liberties group for ignoring clients at risk of "losing their educations in kangaroo courts."

Published: June 15, 2021 5:38pm

Updated: June 18, 2021 10:33am

Lara Bazelon set up a "racial justice" legal clinic in 2018 that ended up focusing on low-income minority men denied due process in campus sexual misconduct proceedings. 

The experience led the University of San Francisco law professor to praise then-Secretary of Education Betsy DeVos for taking on the "troubling racial dynamics" that emerged from the Obama administration's accuser-focused guidance on Title IX.

But the American Civil Liberties Union saw the proposed Trump administration regulation, which took effect last summer, as a threat to "survivors" that "inappropriately favor[s] the accused." 

It was this history that prompted Bazelon to promote an article on the "identity crisis" at the 101-year-old advocacy and litigation group. 

The New York Times feature earlier this month aired the murmurs and criticisms that have followed the ACLU in recent years — including from former staff members — as it came to be known more for opposition to Donald Trump than as a principled defender of unpopular speech and clients.

The article "sums up why I haven't been able to support the ACLU for some time now," Bazelon tweeted. "They purport to stand for free speech and due process but all too often, in the hard cases, they don't."

Bazelon told Just the News she's particularly irked at the ACLU letting staff share progressive sentiments at odds with civil liberties on the organization's Twitter feed. She's trying to schedule a time to talk privately with David Cole, its longtime national legal director, after the two argued about the ACLU's direction on Twitter.

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Reporter Michael Powell, recently known for upending the "eating while black" media narrative at Smith College, also highlighted the work of a group seen by many as a successor to the old-school ACLU, the Foundation for Individual Rights in Education.

It was FIRE who put together a documentary about the ACLU's transformative executive director Ira Glasser, who steered the organization through the tumult that followed its representation of neo-Nazis seeking to march in a Chicago suburb full of Holocaust survivors.

The long-retired Glasser told the Times he fears "we're in danger of losing" the ACLU as a content-neutral defender of free speech.

Former president Nadine Strossen, whose tenure overlapped with Glasser's, told Just the News she agreed the ACLU should not squander its "institutional capital" and must defend civil liberties regardless of "whose ox is gored."

A vocal critic of campus speech suppression from the left, the New York Law School professor said she has "no hesitation" publicly criticizing the ACLU for some stances, including its opposition to the proposed Title IX regulation. She debated the issue with Glasser's successor, Anthony Romero, and "we agreed to disagree."

But Strossen thinks the hubbub over the ACLU's alleged abandonment of free speech is overblown. "I think it's healthy" that the organization has frequent internal debates over competing values, one of which is free speech versus privacy.

"I don't know what people think of when they think of the ACLU," she said: It's the nature of a multi-issue organization to disappoint its members who care about one issue.

One statistic in Powell's report that's missing context, according to Strossen, is that the ACLU didn't expand its four-person free speech legal team even as the organization's budget tripled. That ignores its free speech advocacy work in D.C. and legal efforts by "generalists" at its state affiliates, she argued.

The ACLU did not respond to queries from Just the News about how many total staff and resources are assigned to free speech issues and how the organization has handled the flood of free speech complaints in recent years.

ACLU ignores "indigent, marginalized, under-served" in campus kangaroo courts

Powell's report focused on the tensions between the ACLU's current advocacy and staff, and the cases that had defined it for decades. David Goldberger, who represented the neo-Nazis, said he felt out of place at his own ACLU celebratory luncheon in 2017.

One turning point was its Virginia affiliate's legal defense of a pro-Confederate-statue rally that ended with a counterprotester's death, which prompted students to shout down the affiliate's leader at a campus talk on free speech. 

Two hundred staff members revolted after Cole defended the Virginia affiliate's decision to take the case. In response, the national organization developed guidelines that said lawyers should consider the "potential effect on marginalized groups" by representing groups whose "views are contrary to our values."

The same day the report came out Cole published a lengthy rebuttal claiming that its guidelines "merely codified our best practices" and rattling off the ACLU's recent history of defending speech by the National Rifle Association, anti-gay activists and even Donald Trump.

He highlighted its legal collaborations with groups whose work can conflict with ACLU progressive priorities. A FIRE spokesperson told Just the News it "works regularly with the ACLU and its state affiliates on a variety of matters related to free expression" but does not "systematically track" how often that happens.

Bazelon, the law professor, disputed Cole's claim that Powell misconstrued "tweets by staff who have free-speech rights themselves" as evidence for institutional bias.

"Why did the ACLU allow a staff member to use the ACLU's twitter account to tweet an anti due process statement in response to the Title IX regs (which in my experience are crucial to racial justice) and allow it to stand uncorrected as its presumed public position?" she tweeted.

"Where has the ACLU been when lawyers like me, who rep accused parties who are indigent, marginalized, under-served and in danger of losing their educations in kangaroo courts, get mauled?" Bazelon continued. The ACLU chose to "dunk on the reporter rather than engage in meaningful reflection."

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Its initial tweet thread against DeVos's proposed Title IX regulation "attacked the due process reforms directly and unequivocally," Bazelon told Just the News. Several hours later, a more careful statement was still "very harsh" about the proposed rules. 

The ACLU's formal comments in the regulatory proceeding, filed more than two months later, specifically praised the proposal's enhancements of procedural protections for accused students, including live cross-examination.

The incident exemplifies how the organization lets staff shoot from the hip on its Twitter feed, which has two million followers, while the ACLU later "in a more muted way, takes a nuanced position," Bazelon said.

Strossen emphasized the organization should get credit for its early work defending free speech for students. FIRE was founded several years into her tenure as ACLU president, with her active involvement, because "it was just clear that we didn't have the resources" to single out education. 

She thinks some of the internal tension is generational. The pendulum is likely to swing back toward stronger support for free speech, Strossen said, citing her conversations with middle and high school students and a recent international survey.

The ACLU's problem is not that it has stepped back from its historic mission, but that "we need to be much more proactive in highlighting" its free speech work and explaining why it takes certain cases, she said. It's defending freedom for all, not "the views of the white supremacists."

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