One of the cornerstones of Dartmouth’s campaign to prove that it does not have a speech code is the assertion that its 2001 punishment of the Zeta Psi fraternity was based on conduct, not speech. In a recent speech to the Dartmouth Club of New York, President Wright said:
The Dean derecognized the fraternity because of the repeated publication of a newsletter that cruelly demeaned specific women on campus. This incident was about behavior, not speech—the organization published articles describing the supposed sexual exploits of two undergraduate women who were identified by name.
Putting aside, for a moment, the obvious point that publishing articles is an expressive act, it is important to look at the actual grounds for punishing Zeta Psi. As I pointed out yesterday, the principal speech-related charge against Zeta Psi was “harassment.” Zeta Psi’s private, satirical newsletters, however, could not constitute harassment under any applicable law. Dean Larrimore’s May 11, 2001, letter also mentions violations of “Minimum Standards requirements.” These “Minimum Standards”
references were vague, and I was unable to determine which provisions of the Dartmouth codes of conduct he was referring to—at least until I began researching Internet archives. After searching in vain through the Dartmouth’s archives for a detailed discussion of the charges, I came across a fascinating article in the Dartmouth Review by Emmett Hogan (full disclosure: after Emmett
left Dartmouth, he became a FIRE program officer; he is now a law student at Michigan). Entitled “Dean Redman Commits Fraud,” the article eviscerates the college’s position. Money quotes:
Nulla poena sine lege—‘no punishment without a law’. This seemingly self-evident dictum constitutes a crucial cornerstone of the American justice system. It is the motivating force behind our constitutional protection against ex post facto laws. It enshrines an expansive view of human liberties; if you want to punish something, you have to pass a law against it. If there is no law, there is no crime, and the action is permissible.
How did the College, and Dean Redman in particular, do this? Let’s examine the charges, of which there were three: one violation of a Dartmouth Standard of Conduct—harassment, to be precise—and two violations of the house’s own local and national charters. I will begin with the charge of violating one of the Standards of Conduct.
Zeta Psi was alleged to have violated Standard II, which reads: ‘Students and student organizations must not engage in behavior that threatens the safety, security, or functioning of the College, the safety and security of its members, or the safety and security of others.’ Harassment is listed as one type of behavior that constitutes a
violation of this Standard. It is defined as ‘abusive behavior or conduct that
is targeted at an individual or group and is ordinarily repeated’.
A comparison with New Hampshire’s laws against harassment is illustrative. Section 644:4 of the state’s criminal code has a detailed definition of harassment, that specifically indicates the many ways it can occur—in person, over the phone, through e-mail, and so on. But a crucial defining idea is ‘communication’. To constitute harassment in the state of New Hampshire, an action must be communicated to the victim. This makes sense; consequently, gossip cannot be defined as harassment.
Similarly, with Dartmouth’s own regulations, the behavior has to be ‘targeted at an individual or group’. Simply talking about someone, even repeatedly, or even printing it, does not constitute harassment—any reasonable person would concede this. So what does ‘targeted’ mean? This means that, as with New Hampshire
law, the action has to be directed at—in other words, communicated to—the
victim. And, because harassment is listed as an example of conduct that violates Standard II, it must reasonably threaten the ‘safety and security’ of College students—the crux of the Standard.
Melissa Heaton claims victim status. She was gossiped about; she was insulted. But she was not harassed. The contents of the Sigma Report were for internal consumption only. The comments were never directed at her, and the only way she was able to discover the content of these papers was by digging through a dumpster and piecing a copy together. Clearly, the Sigma Report was not communicating with her. The brothers of Zeta Psi talked about Melissa Heaton, but they did not target their actions at her. Her ‘safety and security’ were not threatened. Clearly, she was not harassed.
Dean Redman invented a charge of harassment. His argument is, essentially, that a person can be harassed without knowing it (thank goodness we have Dean Redman to inform us when we’ve been harassed!) and without having his or her safety threatened. This contradicts not only common sense; it contradicts the standards listed in the Student
Handbook itself. For this reason, he has committed fraud.
Perhaps one of the most abominable actions taken by Dean Redman was his punishment of Zeta Psi for two violations of local and national charters. He claims that violating charter regulations is a violation of Minimum Standards. How is this the case?
Dean Redman argued to me, in person, that he was able to punish Psi Upsilon for violating the Principle of Community. Yes, that selfsame Principle of Community that the Student Handbook notes ‘in itself is not adjudicable’. The vehicle for this was a requirement of the Minimum Standards that says fraternities and sororities are obliged to
incorporate the spirit of the Principle of Community into their charters. Thus, Dean Redman claimed the ability to punish them for violating the spirit Principle of Community. In essence, he is punishing them on the basis of a speech code that applies to 40% of the College’s undergraduate population, but not to the other 60%. If these students were not Greeks, their speech would not be punishable (ignoring, for the moment, Redman’s asinine views on harassment).
Here we have another violation of College regulations. Since the Student Handbook is the main contract that governs the relationship between the student body and the College, it
explicitly notes that the Principle of Community is not adjudicable. Does it make sense that the College can grant us a right—a legal right—and then repudiate that right via other rules? The two cannot co-exist; and because we have contractual protection from adjudication of the Principle of Community, in name or in spirit, the Minimum Standards requirement represents an infringement of that contractual protection. The College, as a liberal arts institution, should not be able to enforce the Principle of Community on a select segment of the student population. But more to the point: they also cannot. That is fraud.
But Dean Redman has another argument. The Principle of Community aside, he claims to have the authority to punish any violation at any level, even if it is a violation of a fraternity’s national charter. He claims to able to do this because of the little-noted
Standard VII of the Standards of Conduct. That Standard reads, specifically: “students
and student organizations must abide by College policies, rules, and regulations.” Fair enough, one would say; we should certainly be required to abide by College policies. This should almost go without saying.
In personal communication, he argued that Standard VII gives him the right to punish students and organizations for any violation of any College or College-related policy or
regulation, at any level. But nowhere in that Standard is Dean Redman given authority to punish offenses that do not relate to the Standards of Conduct. The Standard says that we should abide by all College policies. But it does not give Dean Redman himself jurisdiction over all such violations (as he claims), and it does not give him the authority to punish violations that do not come from the College—as is the case with violations of national charters.
The events are now clear. A fraternity did something silly and tasteless and offended a significant (and powerful) segment of the campus community. Dartmouth found a way to punish that fraternity despite the fact that no pre-existing rule or code prohibited the fraternity’s actions, and then President Wright and Dean Larrimore drafted the letters that form the basis of the modern Dartmouth speech code as a warning against future offenders.
respects free speech, it will not only repeal its speech code, but it will also
re-recognize Zeta Psi. Four years of punishment in the absence of any
violation of campus rules or regulations is enough.