Yale Travels to Singapore, Leaves Toothbrush, U.S. Values at Home

Human Rights Watch (HRW) has issued a press release excoriating Yale University for its "acceptance of Singaporean government restrictions on basic rights at the new Yale–National University of Singapore (NUS) joint campus [that] shows a disturbing disregard for free speech, association, and assembly." Foreign Policy has picked up the ongoing controversy, as has Alex Klein over at The Daily Beast. 

HRW's press release echoes some of the concerns I have laid out here on The Torch over the past few weeks:

Many Singaporean laws are incompatible with the basic policies of a university such as Yale... "Yale may find that many of the freedoms taken for granted over its 300 year history are against the law in Singapore," [Phil Robertson, deputy Asia director at HRW] said. "If it truly values those freedoms, and expects its students to, it will need to fight for them." 

This is exactly right. While FIRE does not take a position on the sovereign rights of Singapore to establish its own laws, there is absolutely no justification for an American university that values freedom of speech to cheerfully assist Singapore in enforcing these laws. HRW further identifies a major disconnect between Yale's stated nondiscrimination policies and the laws of Singapore.

Beyond this values disconnect, it's important to note that Yale has real, statutory nondiscrimination obligations that apply anywhere it operates. For example, the nondiscrimination provisions of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act were amended in 1991 to apply to U.S. citizens employed by U.S. employers (such as Yale) abroad. See Pub. L. No. 102-166, 105 Stat. 1071, § 109(c) (November 21, 1991). Thus, U.S. citizens employed by Yale in Singapore in any capacity, such as professors, teaching assistants, administrators, and janitors, are covered by these statutes. 

Furthermore, the nondiscrimination provisions of Title IX of the Education Amendment of 1972 have also been construed by at least one federal district court to apply to American universities operating study abroad programs. See King v. Bd. of Control of Mich. Univ., 221 F. Supp. 2d 783, 791 (E.D. Mich. 2002) (holding that "[e]quality of opportunity in study abroad programs, unquestionably mandated by Title IX, requires extraterritorial application of Title IX."); but see Phillips v. St. George's Univ., 2007 U.S. Dist. LEXIS 84674 (E.D.N.Y. 2007) (failing to apply Title IX to case involving American student enrolled at Grenadian university). However, no higher court yet appears to have construed Title IX to apply to the novel situation presented by the partnerships formed by American universities with their overseas counterparts (for a useful exposition this subject in the disability discrimination context, see The Presumption Against Extraterritoriality as Applied to Disability Discrimination Laws: Where Does it Leave Students with Disabilities Studying Abroad?, 14 Stan. L. & Pol'y Rev 291 (2003)).

While the First Amendment may not protect students and employees of private American universities abroad (and while the territoriality of the First Amendment with respect to public universities is subject to some debate), these victims might have other legal options. A student teaching assistant at NYU–Abu Dhabi might have a plausible Title VII claim if she is required to wear a head scarf as a condition of employment, for example. Similarly, failure to properly respond to allegations of sexual assault on a foreign campus due to local norms should not exculpate a university from its Title IX responsibilities in this arena. As the Department of Education's April 4, 2011, "Dear Colleague" Letter notes: "Title IX protects students in connection with all the academic, educational, extracurricular athletic, and other programs of the school, whether those programs take place in a school's facilities, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere."

With respect to Title VII and the ADA, there is an exception that permits employers to discriminate when compliance would otherwise violate foreign law (42 U.S.C. 2000e-1(b)), but Yale University appears to be going above and beyond mere compliance in Singapore. There is a deep theoretical problem here as to which demands of the Singaporean government constitute legal demands and which constitute political ones. Determining whether Yale University is entitled to exemption from Title VII, Title IX, or the ADA will be done by a court of law, should any student or employee from the Singapore campus decide to sue Yale. See Fed. R. Civ. P. 44.1. Yale lawyers have probably had a hand in the pot, and while the Yale–NUS plan was approved by the Yale Corporation, there have been efforts by Yale to claim a formal distinction between Yale and Yale–NUS. As noted in The New York Times, "Yale officials take pains to explain that Yale–N.U.S., which will be paid for entirely by Singapore, will not be Yale but a distinct institution with its own president and its own diploma." As a result, Yale can make a plausible argument that the Singapore campus is a foreign corporation not bound by Title VII or other U.S. employment or nondiscrimination laws. Again, whether these arguments would hold up in a court of law remains to be seen.

What is indubitable is that Yale seems to have not only rolled over, but rolled over with gusto, issuing statements laden with doublespeak (students can "express themselves freely," although "[w]hat we think of as freedom, they think of as an affront to public order") and making insufficient effort to balance the rights of its students against its desire to build a new campus. American universities like Yale that say they value value freedom of speech are highly regarded across the globe. They are therefore uniquely able to demand freedom of speech on their foreign campuses—and they have a moral responsibility to do so.