In a May 27 review of reactions to the punishment of Yale’s Delta Kappa Epsilon (DKE) fraternity and some of its individual members, the Yale Daily News (YDN) cited a Minding the Campus piece that I co-authored with FIRE Chairman Harvey Silverglate. This is a controversy that FIRE has written about extensively, yet the paper mistakenly reported that our article "claimed that the chants were protected by the First Amendment."
This isn’t quite true, and it’s important to set the record straight.
Harvey and I wrote that as a private institution, Yale "[is] not bound by the First Amendment and its free speech protections." But what binds Yale, in both a moral and a contractual sense, are the very strong promises Yale clearly makes to students in its University Regulations. And in that regard, Yale has made an unequivocal pledge to uphold freedom of expression.
The YDN’s confusion-that the First Amendment equals free speech-is a common misconception. But understanding why they are not the same on a private campus is crucial, particularly in the case of Yale punishing DKE.
The First Amendment is a kind of buffer between the people and their government. While state-run public campuses must respect their students’ right to speak freely, privately operated universities have their own First Amendment right-based on freedom of association-to make their own rules, to set standards for what they expect in their particular community, even if that means setting restrictions on speech.
In one sense, the First Amendment does offer protection to the speech at issue–not by prohibiting Yale from punishing the students, but by prohibiting the government from punishing Yale for not cracking down on expression. For example, it would be unconstitutional if the U.S. Department of Education’s Office for Civil Rights were to demand that Yale punish the speech, with the threat of loss of federal funding if Yale resisted.
The issue of government intrusion aside, the associational right to create community standards is crucial in FIRE’s work with private colleges and universities. The First Amendment prerogative of a private college to clearly set other values above free expression-adherence to religious doctrine, for example-explains why we do not rate certain colleges in our Spotlight speech code database. As long as colleges make clear that students shouldn’t expect their speech to be free, students should know what they’re signing up for when they enroll.
In contrast, most private colleges make a voluntary choice to entice students to enroll using promises of free expression. Consider Yale, which, despite no obligation to respect free speech under the First Amendment, nonetheless declares it a "paramount obligation" to protect the free expression. "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," reads the College’s official policy on free expression.
If one is to take Yale at its word (courts, by the way, have considered the promises made in student handbooks to be legally enforceable contracts), the punishment of DKE is unjustifiable. The sexually explicit chants may have felt upsetting to some, but it’s important to keep in mind that what’s at issue here are words. That formal sanctions have resulted from this expression is, as Sam pointed out in naming Yale as FIRE’s June 2011 Speech Code of the Month, a true scandal.
If Yale expects to be taken seriously as an enforcer of community expectations, it must remember its promise that free speech is Yale’s paramount expectation.