FIRE announces its Speech Code of the Month for June 2011: Yale University.
Ordinarily, FIRE's Speech Code of the Month is a written policy that restricts student speech rights in a way that violates either students' First Amendment rights (at a public university) or contradicts written promises of free speech that a university makes to its students (at a private university). As terrible as these written policies are, however, there is something yet worse: an unwritten policy that gives a university carte blanche to punish any speech that it finds undesirable or politically inconvenient. Such an unwritten policy is precisely what seems to have evolved at Yale University.
Nothing in Yale's written regulations prohibits the crude chants (such as "no means yes, yes means anal" and a rhyme about "Jack the necrophiliac" reminiscent of the dirty limericks that have been around since time immemorial) that led to disciplinary action against Yale's Delta Kappa Epsilon (DKE) fraternity and several of its individual members. Yale has cited its prohibitions on harassment, intimidation, and coercion to justify the disciplinary action, but reasonable people know that the scatological humor of a group of blindfolded fraternity pledges constitutes none of the above. Yale has also cited an overly broad catch-all provision allowing it to impose discipline for "actions" that "imperil the integrity and values of the Yale community." However, there is nothing in that broad provision that indicates its drafters intended it to apply to offensive but wholly protected speech, particularly given Yale's explicit commitment to protecting even the most noxious expression.
Rather, we believe that Yale caved to political pressure to punish the fraternity and its members, pressure brought to bear by a Title IX complaint filed against the university with the U.S. Department of Education's Office for Civil Rights (OCR) and intensified by OCR's April 4 "Dear Colleague" letter to colleges and universities signaling OCR's renewed focus on issues of sexual harassment and discrimination.
Ironically, far from prohibiting such expression, Yale's written policies contain the strongest possible protections for free speech. Yale's "official policy" on free expression provides (emphases added):
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. To curtail free expression strikes twice at intellectual freedom, for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views. We take a chance, as the First Amendment takes a chance, when we commit ourselves to the idea that the results of free expression are to the general benefit in the long run, however unpleasant they may appear at the time. The validity of such a belief cannot be demonstrated conclusively. It is a belief of recent historical development, even within universities, one embodied in American constitutional doctrine but not widely shared outside the academic world, and denied in theory and in practice by much of the world most of the time. Because few other institutions in our society have the same central function, few assign such high priority to freedom of expression.
It may sometimes be necessary in a university for civility and mutual respect to be superseded by the need to guarantee free expression. The values superseded are nevertheless important, and every member of the university community should consider them in exercising the fundamental right to free expression. We have considered the opposing argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions, and the argument that such behavior entitles others to prevent speech they might regard as offensive. Our conviction that the central purpose of the university is to foster the free access of knowledge compels us to reject both of these arguments. They assert a right to prevent free expression. They rest upon the assumption that speech can be suppressed by anyone who deems it false or offensive. They deny what Justice Holmes termed "freedom for the thought that we hate." They make the majority, or any willful minority, the arbiters of truth for all. If expression may be prevented, censored or punished, because of its content or because of the motives attributed to those who promote it, then it is no longer free. It will be subordinated to other values that we believe to be of lower priority in a university. The conclusions we draw, then, are these: even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions. If the university's overriding commitment to free expression is to be sustained, secondary social and ethical responsibilities must be left to the informal processes of suasion, example, and argument.
So not only do Yale's written regulations not prohibit the kind of expression for which the university is now punishing its students, but Yale's written regulations explicitly prohibit punishing this kind of offensive but protected expression. It is an absolute scandal that Yale has violated its own policies in the name of political expediency, a scandal for which Yale must be held accountable by anyone who cares about individual rights and fundamental fairness. While the DKE brothers' speech may seem to be of low social value, the fact that Yale is willing to cravenly abandon its principles and punish protected speech because of political pressure means that no controversial expression—be it a crude chant or an important argument about a sensitive political or social issue—is safe at the university.
As dangerous as unconstitutional speech codes are, even worse is an unwritten policy—like the one that has evolved at Yale—that allows the university to punish protected expression (or to censor it, as in the case of Yale's decision to remove images of the Danish Mohammed cartoons from Jytte Klausen's scholarly book on the cartoon controversy) for fear of social or political consequences. For this reason, Yale University is our June 2011 Speech Code of the Month.
If you believe that your college's or university's policy should be a Speech Code of the Month, please email firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE's Campus Freedom Network, a network of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.