Dartmouth: Still Mysterious

On Monday, the Dartmouth printed a guest column
by Robert Donin, Dartmouth’s general counsel, in which he makes two interesting arguments. First, he argues that Zeta Psi (which was derecognized after a woman found an offensive internal fraternity newsletter in the trash) was not punished for engaging in protected speech:

The Zeta Psi case falls squarely within the area of permissible regulation. This was not a case of students spewing racist, sexist or misogynistic ideas in the abstract. Such statements, however repugnant or contrary to Dartmouth's values, are protected under the College’s Policy on Freedom of Expression and Dissent (Student Handbook, p.9). (And members of the campus community can and do respond with their own views when they encounter statements they find objectionable or with which they disagree.) The statements in the Zeta Psi newsletter, by contrast, targeted two specific students for personal abuse in a repeated fashion even after the organization agreed to end this behavior.

Unfortunately for Donin, the law does not support him here. The offending statements could not possibly have constituted "harassment" under governing law. As the Department of Education’s Office of Civil Rights stated in its July 28, 2003, letter to colleges and universities:

Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR's standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program.

I know of no case authority indicating that a person is denied or limited in their "ability to participate in or benefit from the educational program" when he or she is "targeted" in a communication so private that he or she couldn't find it without sifting through the trash. There is no court in America that has found "harassment" in similar circumstances. Moreover, while Donin is correct that the First Amendment does not protect "defamation" or certain kinds of "invasions of privacy," it is important to note that Zeta Psi was not punished for defamation or invasion of privacy, and there was never a finding that the fraternity engaged in such behavior (see Dean Larrimore’s May 11, 2001, letter discussing the grounds for Zeta Psi’s punishment). The principal speech-related charge was harassment, and that charge cannot withstand the slightest legal scrutiny.

Donin’s second major argument is that Dean Larrimore’s May 11, 2001, letter and President Wright’s May 10, 2001, letter are not statements of policy at all:

Those two letters do express the writers’ personal convictions about racist, sexist and homophobic behavior and the effect of such behavior on the College community.

Removed from the context of the Zeta Psi case, these comments might imply a broader regulation of expression. But the letters were prompted by, and addressed to, the specific case at hand. (Both letters were commenting on the decision already reached by Dean Martin
Redman concerning Zeta Psi, rather than setting forth policies that led to that
decision.) The assertion that the letters constituted official “policies”
subjecting students to penalties for discriminatory or unpopular speech per se
is incorrect.

In other words, the letters represent mere statements of personal belief, not official policy pronouncements. Yet, if this is case, why were the letters written with such broad language? Why did President Wright state that there was "no patience with or tolerance for bigotry and demeaning behavior?" Why did Dartmouth (until recently) prominently display these letters on the school's website? We have written President Wright seeking clarity on the status of Dartmouth’s speech policies, and we hope to have answers to at least some of these questions soon.

In the meantime, if you want to see how a sophomore in college can write with greater clarity and a more convincing grasp of the First Amendment than the college’s general counsel, read today’s rebuttal of Donin’s column by Michael R. Herman, class of 2007. Money quote:

Mr. Donin writes that certain community letters written by Dean Larimore and President Wright to justify the derecognition of Zeta Psi were tied only to the Zeta Psi incident, and merely expressed the writers' "personal convictions" about what behavior should not be tolerated at Dartmouth. After Zeta Psi was derecognized, however, Dean Larimore wrote, "Dartmouth has the right and the obligation to remove from its
residential life system an organization that will not conform to the standards of that system" and President Wright wrote that there was no place at Dartmouth for speech he
considered to be "demeaning to women and others, that was racist, or that was
homophobic." These statements demonstrate not only that Dartmouth has a speech code, but worse, that it has a speech code that came into being only after the incident and was then
retroactively enforced. Since the speech code was not public prior to the incident, the school administrators had the power to make up whatever terms they wanted for the code. By imposing the code ex post facto, the dean and the president were able to punish students for speech they found offensive even though there was no way for those students to know ahead of time what speech would be punished.

Once again, students lead on free speech.