What Passes for 'Justice' in Yale Fraternity Case

It's all over the news -- Yale University has suspended the Delta Kappa Epsilon (DKE) fraternity for five years for speech uttered by its pledges on the evening of October 13, 2010, in front of the Yale Women's Center. As the Yale Daily News reported at the time,

At their pledge initiation on Old Campus, DKE members shouted phrases such as "No means yes, yes means anal" and "My name is Jack, I'm a necrophiliac, I f--- dead women." Some of the students were blindfolded and being led in a line with their hands on each others' shoulders.

Reaction was swift. The October 15 Yale Daily News article linked above goes on to describe some of the fallout:

In an e-mail to the News Thursday, DKE President Jordan Forney '11 called the pledge chants "inappropriate, disrespectful, and very hurtful to others."

"It was a serious lapse in judgement by the fraternity and in very poor taste," he said, adding that DKE does not condone sexual violence.

The Women's Center deemed the actions "hate speech" and "an active call for sexual violence" in an e-mail to the News Wednesday night....

Business Coordinator Elizabeth Deutsch '11 said the Women's Center sees its role now as helping to bring people together to discuss this issue and figure out how to move forward. She said the organization does not want to be antagonistic and wants to collaborate with DKE and others to help make Yale's sexual culture more respectful. She said the Center wants to make Yale a place where people think about their language and actions to prevent future incidents.

The immediate reaction on campus served as a very good example of "fighting speech you dislike with more speech," illustrating how social pressure can offer the most effective correction to speech that offends, as one can see by reading the comments from the president of DKE. And although the Women's Center's response could be viewed as kneejerk and exaggerated -- it's far from certain that a chant including boasts of necrophilia made by a conga line of blindfolded Yale fraternity pledges could be seen by a reasonable observer as a serious statement of intent to commit felonious sexual assault -- it was also protected speech and certainly communicated the strong disapproval many in the Yale community felt about the incident. What's more, despite its strong feelings about the chants, the Women's Center stated its desire "not to be antagonistic" and to help people "think about their language and actions" -- a commendable effort. DKE's national organization also stepped in, ordering a month-long halt to pledge activities at its Yale chapter.

These constructive reactions to the incident were quite congruent with Yale's stated values, which place freedom of speech, however offensive, on a high pedestal. Yale's Undergraduate Regulations state:

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.

Above all, every member of the university has an obligation to permit free expression in the university. No member has a right to prevent such expression. Every official of the university, moreover, has a special obligation to foster free expression and to ensure that it is not obstructed.
. . .
We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.

The DKE pledges' chants count as speech that most would see as "unthinkable" and "unmentionable." Yet Yale's rules are clear: "No member has a right to prevent such expression," and, "We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox." And again, the tenor of the immediate reaction to the chants demonstrated once again that such an approach can and does work.

But yesterday, it was revealed that despite Yale's commitments to free speech and despite the affected parties' apparent commitments to engagement and discussion, Yale had decided to punish DKE, and in a big way: the fraternity is prevented from holding any events on campus or recruiting new members for five years. Considering the typical four-year career of a Yale undergraduate, that means that for all intents and purposes, that chapter of DKE is finished, and any replacement will be an entirely new organization. Apparently, individual members of the fraternity have also been punished, although Yale, citing federal privacy laws and university policy, will not reveal who or how.

So, what changed? The incident happened in October, the fraternity apologized, the Women's Center wanted to educate people, Yale stuck by its commitment to free speech, and the fraternity had been operating as usual since the monthlong suspension of pledge activities. What is the point of punishing people six months later? What happened?

Politics happened.

More specifically, national politics happened. As civil liberties lawyer and FIRE Board of Advisors member Wendy Kaminer reported in The Atlantic on April 6, members of the Yale community filed a Title IX complaint with the U.S. Department of Education's Office for Civil Rights (OCR) about the incident shortly after it happened, and an OCR investigation followed. Yale is not alone in being investigated: according to this Yale Daily News article, Harvard Law, Duke, University of Virginia, and Princeton are also being investigated concurrently, with lawyer Wendy Murphy, who we have mentioned before, playing a part in the complaints against at least Harvard Law and UVa.

Perhaps not coincidentally, OCR released a "Dear Colleague" letter on April 4 mandating that colleges make several changes that negatively affect due process in campus tribunals, such as demanding that sexually related offenses on campus be tried using a "preponderance of the evidence" standard, and ignoring free speech concerns that OCR had previously been careful about noting in its guidance to colleges and universities. FIRE has detailed its objections to this letter in a press release and in many blog entries. What's more, United States Senator Bob Casey of Pennsylvania has also introduced into Congress the "Campus SaVE Act," which would write the preponderance standard into federal law. 

Between the complaint against Yale and other schools, the OCR letter, and newly proposed legislation, the message from Washington this spring has been clear: There is to be a new emphasis on punishing those accused of offenses having anything to do with sex, and old-fashioned concerns like "free speech" or "being reasonably certain that the accused actually committed the offense" are to be put on the back burner.

Yale College Dean Mary Miller outlined the process Yale followed in an e-mail (scroll down the linked article to read the whole thing) to all Yale students and faculty yesterday: 

Marichal Gentry, Dean of Student Affairs, brought official allegations of "sexual harassment" and "imperiling the integrity and values of the University community." The Committee then pursued those charges. The Fact Finder for the Committee interviewed a number of individuals with knowledge of the incident, including both those who had been charged and witnesses; he then submitted a report to the Committee. The Committee carefully considered all of the attested facts and circumstances in this incident.

After a full hearing, the Committee found that the DKE chapter, as an organization, one comprised of Yale students, had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to "harassment, coercion or intimidation" and "imperiling the integrity and values of the University community." The Executive Committee further found several fraternity members had also, as individuals, violated the same regulations.

The Undergraduate Regulations, which (surprise!) contain a notice that they have been recently changed to comply with OCR's dictates, provide in pertinent part that

Sexual harassment consists of nonconsensual sexual advances, requests for sexual favors, or other verbal or physical conduct on or off campus, when ... (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating or hostile academic or work environment. Sexual harassment may be found in a single episode, as well as in persistent behavior.

Presumably, Yale's Executive Committee determined that the "verbal conduct" of the DKE pledges created an "intimidating or hostile academic environment." 

For the sake of argument, let's say it did, and that this decision somehow does not conflict with Yale's strong commitments to free speech in the very same document. Why, then, was a decision not made until May 17, 2011, to punish people for an incident that happened on October 13, 2010? (The timeline is unclear; at least, that's when Yale finally announced the punishment.) That's more than seven months later! It's not as if more evidence was needed, and there is no mention of further offenses by DKE. So if the environment was so hostile, what is Yale's excuse for allowing such an oppressive and sexist environment to go on an additional seven months?

Of course, the answer is that if Yale administrators really thought such an environment existed, they wouldn't have let it go on for seven months -- unless Yale is run by really sexist people. Since I doubt Dean Mary Miller qualifies as such, there's only one plausible explanation: Yale was feeling political pressure to punish DKE, decided that its political and public relations needs were greater than its commitment to principle, and accordingly threw DKE under the seemingly unstoppable bus of political correctness. If Yale has an alternative explanation, we'd love to hear it.

This isn't even the first time in recent memory that Yale has sacrificed its principles to the twin gods of politics and public relations. In 2009, Yale University Press was planning to publish author Jytte Klausen's The Cartoons that Shook the World, a book about the Danish Mohammed cartoon controversy that resulted in riots across the world, complete with pictures of the offending cartoons and other unrelated images of the Islamic prophet. Yale administrators stepped in, submitted the pictures (stripped of their context in the book) to anonymous consultants who recommended that they not be run, and decided that the book must be published without the images. Unsurprisingly, this surrender of free speech principles to an implied threat of violence was widely derided. 

Now Yale has surrendered its free speech principles again, this time not under threat of violence but of investigation by the federal government and possibly some bad press among those who believe sexist speech must be punished by the authorities rather than combated through persuasion and reasoned discourse. 

Perhaps, going forward, Yale could save everyone a lot of time and just list on its website all of the political positions that it does not consider more important than free speech and adherence to its stated principles. Why should future students and scholars have to continue to find this out the hard way?