Throughout the spring semester and into the early summer, FIRE is drawing special attention to the state of free speech at America’s top 25 national universities (as ranked by U.S. News & World Report). This blog series is drawing to a close, with only three universities left: Yale, Harvard, and Princeton. Today we review policies at Yale, which FIRE has given a yellow-light rating for maintaining policies that could too easily be used to suppress free speech at the university.
Yale, a private university, explicitly states that freedom of expression is its "central purpose." Yale’s policy on Free Expression, Peaceful Dissent, and Demonstrations states:
For if a university is a place for knowledge, it is also a special kind of small society. Yet it is not primarily a fellowship, a club, a circle of friends, a replica of the civil society outside it. Without sacrificing its central purpose, it cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect. To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends. But it will never let these values, important as they are, override its central purpose. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts. (Emphasis added.)
The policy further provides that "every member of the university has an obligation to permit free expression" and that "[e]very official of the university, moreover, has a special obligation to foster free expression and to ensure that it is not obstructed."
Yale’s commitment to protecting free expression could not be clearer. Yet some of its policies undermine this commitment by suggesting that protected expression might, in fact, be subject to discipline at the university. If Yale truly wants to be the bastion of free expression described in its free expression policy, it should revise the following policies to eliminate any confusion.
Yale’s policy on Racial and Ethnic Harassment provides that "racial or ethnic harassment is considered to occur when any individual is subjected to arbitrary, capricious, or discriminatory treatment on the basis of race or ethnic origin." This language is exceedingly vague, leaving the university with tremendous discretion to decide, in any given situation, what constitutes racial harassment. Capricious, for example, merely means "unpredictable" or "determined by chance, impulse, or whim." So what, exactly, does it mean to subject someone to "capricious" treatment on the basis of race or ethnicity? How is a student to know if his or her expression might run afoul of this prohibition? Since it is difficult if not impossible to know what exactly this policy prohibits, it is likely to have a chilling effect on free speech at Yale. Moreover, it gives administrators an impermissible degree of discretion to punish speech they might find personally inappropriate.
Yale also maintains a sexual harassment guide that, like so many harassment policies, suggests potential examples of harassment that will almost always, in reality, constitute protected expression. Yale’s policy is saved from total disaster by acknowledging that whether these types of speech actually constitute harassment depends on their severity and pervasiveness. However, these common "lists" of harassment examples are simply a bad idea, because they suggest that certain types of generally protected expression—such as "sexual jokes" or "unspoken sexual innuendo"—are likely to lead to punishment. Most people, faced with such a list, will likely refrain from the enumerated types of expression altogether, which is what we call a chilling effect on speech.
Stay tuned next week for information on the state of free speech at Princeton University.