Harvey and Kyle on 'Minding the Campus' on What Yale Should Have Said to OCR

FIRE Co-founder and Board of Directors Chairman Harvey Silverglate and Program Associate Kyle Smeallie have written an excellent, though-provoking piece on Minding the Campus about what Yale University President Richard Levin should have said to the Department of Education's Office for Civil Rights (OCR) regarding the Delta Kappa Epsilon (DKE) fraternity. Under investigation by OCR for allegedly maintaining a sexually hostile environment, Yale announced last week that it was suspending DKE for five years for chants uttered by its pledges as part of a hazing ritual in October 2010.

Rather than—from all appearances—cave in to federal pressure so quickly and so thoroughly, Harvey and Kyle argue that Yale missed an opportunity to stand up for student free speech everywhere, as well as for its own stated commitments to open dialogue on campus. They write in the form of an open letter from Yale's President Levin to Assistant Secretary for Civil Rights Russlynn Ali.

A sampling of the letter, with Harvey and Kyle writing as President Levin:

As I shall endeavor to explain below, I do not believe that sanctioning students for their speech-even at its most disturbingly misogynistic-is an option open to Yale's administration.

First, we must remember that we're dealing here with pure speech. Many, probably most, find the speech to be deplorable, if not downright unmentionable in polite company. But Yale long ago made a pledge to its students-it's embodied in our University Regulations-to vigorously uphold free speech. "Every official of the university," Yale policy reads, "has a special obligation to foster free expression and to ensure that it is not obstructed."

The reasons for upholding even puerile expression are far from trivial; they cut to the core of why we, universities in a free society, exist in the first place. Amid tremendous campus upheaval in the 1970s, Yale appointed a committee to examine the state of expression on campus. What was produced became known as the Woodward Report, named after the report's principle author, the late and great Professor C. Vann Woodward. It is a document in which we have tremendous pride, and which formed the basis of our current policy on expression. It posits: "The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable." That is no less true today than it was in 1975. At Yale, we take this profound obligation seriously. It is a guiding light.

Were we to contravene these principles and punish the DKE students, we would not only be violating our core values, we would also be in danger of being sued. As a private institution, we are of course not bound by the First Amendment and its free speech protections. Courts have, however, interpreted the provisions of a student handbook as legally-enforceable terms of an implied contract. As detailed above, we have unequivocally promised free expression to our students, and they should reasonably expect us to uphold our end of the bargain.

They continue on to add:

What would it convey to our students were we, in this instance, to make an exception to our principles of free expression? For one, I believe it would convey a completely undeserved notion that our female student population is incapable of defending itself against offensive and sexist expression, and that they need protection from an authority figure. If a group of Yale women gathered to verbally disparage male undergraduates, I do not believe that I would hear similar calls for punishment. Why is this? Women are no less capable than men of fending for themselves, of shrugging off the chants of Neanderthals, or better yet, putting them in their place. If we are to realize true equality, we must treat students equally.

For these reasons, I am choosing not to punish the students involved in the DKE incident. In the event your office chooses to penalize Yale for taking this course, my institution stands ready to defend itself in every appropriate tribunal, from the judiciary to the court of public opinion. Legal counsel informs me that Yale is well within its legal and constitutional rights in resisting these attempted encroachments on its core values.

Harvey and Kyle also take on the considerable potential impact that OCR's April 4 "Dear Colleague" letter to colleges and universities, containing policy guidance on student disciplinary matters involving sexual harassment and sexual violence, will have on students' due process rights, a topic we have been covering in great detail lately.

Be sure to read their entire piece on Minding the Campus.