On Wednesday, The Wall Street Journal published three letters (since gone from the website) responding to FIRE Co-founder and Chairman Harvey Silverglate’s op-ed in last Friday’s issue about the profound injustice done to student Caleb Warner by the University of North Dakota (UND).
The first letter, written by former Department of Education lawyer Hans Bader, made the important point that, contra the Department’s April 4 letter to colleges, Title IX should not require the low "preponderance of the evidence" standard for proof that sexual assault occurred. We agree.
Bader notes that "Using a higher standard of proof, like ‘clear and convincing evidence’ of guilt, is not ‘indifference’ to harassment." This point is important because "deliberate indifference" is the standard for institutional liability for sexual harassment and sexual assault in the educational context, as laid out by the Supreme Court.
The third letter points out the contrast between this op-ed and an earlier story in the Journal about the high educational qualities of North Dakota universities.
The second letter, by contrast, takes Harvey to task. Greg Horne of California writes:
The Yale fraternity pledges’ chant, "No means yes, yes means anal," shows only too clearly what university officials are up against as they endeavor to establish and enforce codes of campus sexual conduct. This mantra, dismissed by Mr. Silverglate as merely a "tasteless slogan," is far more troubling than he implies, and it certainly justifies the university’s action against the fraternity in question.
It’s a tremendous stretch to suggest that the Delta Kappa Epsilon (DKE) pledges’ chant at Yale was an example of "sexual conduct," or even a fair indication of how they feel about the issue of consent. In my time at Duke University as a "Cameron Crazie" (a name given to the student fans of the men’s basketball team), I along with approximately 4,000 of my fellow students many times told members of the opposing team in extremely lurid terms what we supposedly thought about their appearance, parentage, and any personal or sexual activities of theirs that might have attracted the interest of the press or law enforcement. (Not all of these chants had a basis in truth.) This happened particularly often when said players were attempting to score from the foul line.
What we said was offensive, and purposely so. If you have been to a college basketball game, chances are good that you’ve heard the same kind of thing. But it would be totally incorrect to see such chants as a revealing insight into the viewpoints of undergraduate basketball fans. In fact, people say such things because they are outrageous and because they are purposely trying to be offensive.
While I was not in attendance at the Yale fraternity pledge activity in question, I would ask that people consider the following question: Is it more likely that the fraternity decided to loudly and publicly express their serious disagreement with the law and prevailing sexual mores, or that they were trying to say the most offensive statements possible because of the thrill of breaking a taboo? Before you answer, remember that the other loud statement they made that drew the attention of Yale authorities was "My name is Jack, I’m a necrophiliac, I fuck dead women!" Any bets on the seriousness of that one?
The galling fact is that Yale and many of the defenders of its five-year suspension of the DKE fraternity know the answer to my question above as well as you do. Indeed, no reasonable person could look at the chants in context and take them at face value. Yet that’s just what Yale and its defenders are doing: treating this chant like some kind of fraternity manifesto. They are pretending that a reasonable person would actually feel intimidated, in order to restrict speech that is, at worst, merely offensive. You may agree with this restriction, and you may not. But there can be no justification for manufacturing bogus reasons for banning expression that is clearly protected in society at large, like it or not.