Yale Student: OCR is Pressuring Schools to Abandon Commitment to Freedom of Speech
May 20, 2011
by Ari Cohn
About a month ago, Yale sophomore Nathaniel Zelinsky wrote an opinion piece arguing against censorship and encouraging more speech as a remedy to bad speech. Yesterday, he touched on the subject again, tackling Yale's recently announced disciplinary action against the Delta Kappa Epsilon (DKE) fraternity. Zelinsky argues, as do we, that pressure from the Deparment of Education's Office for Civil Rights (OCR) caused Yale to abandon its commitment to freedom of expression in handing down its surprisingly severe punishment. Zelinsky asks good questions in his piece:
Dean Miller's precedent in banning DKE for creating a "hostile" environment raises troubling questions. Who decides what speech is hostile? The University administration? The alleged victim? The Federal Government? By definition, any decision-maker comes with his or her own particular prejudices which bias the eventual decision. We distrust anyone censoring, and therefore should allow no censors. This willingness to ban "hostile" (as opposed to truly dangerous) speech is antithetical to a commitment to free expression for all.
The term "hostile environment" is indeed nebulous. But we do have guidance from the Supreme Court. In Davis v. Monroe County Board of Education (1999), the Court said (in part) that in order for a school to be liable for student-on-student sexual harassment under Title IX, the conduct in question must have been "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities," and that the conduct must have had a "systemic effect" on a student's access to educational programs or activities.
It is important to remember that truly harassing speech is not protected speech. Neither is truly intimidating speech, nor truly threatening speech. But each of these terms has a precise legal definition. Is what many call the boorish and immature speech of the DKE pledges really threatening and intimidating? Is it really so obvious that these pledges (who apparently were blindfolded and didn't even know where they were) were expressing actual intent to rape or have sex with corpses? Erica has already explained in more detail why the chants were neither threatening nor intimidating.
Though Yale seems to have curtailed its commitment to free speech, at least some of its students haven't. Read Zelinsky's full article here.