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Title IX and the Death of Free Speech at Yale

Yale's Dean Mary Miller's precedent in banning the DKE fraternity for creating a "hostile" environment with its boorish chants raises troubling questions. The willingness to ban "hostile" speech is antithetical to a commitment to free expression for all.
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Yesterday, the Yale undergraduate community received an email from Yale College Dean Mary Miller in which she announced the suspension of the Delta Kappa Epsilon (DKE) fraternity for a period of five years. This is Yale's official disciplinary response to boorish chanting that received national attention earlier in October. The suspension comes at the same time that the Department of Education's Office of Civil Rights (OCR) led by Assistant Secretary Russlynn Ali investigates the University as the result of a Title IX suit. The suit claims that the DKE incident (among other similar initiation pranks by a variety of groups) created a hostile environment at Yale that prevents female students from learning. Dean Miller's action represents a sad turn of events for a University that prides itself on its commitment to free speech and now buckles under pressure from the Federal Government.

(As a side note: the sealed Title IX suit also alleges that the University obfuscated cases of sexual misconduct, a potentially worrisome accusation. Because the public claimants have refused to release a names-redacted version of this section of the complaint, it is impossible to assess the validity and seriousness of these claims).

Like most Yale students, I found the DKE chants (which included crude sexual language) rephrehensible. However, the fraternity's actions did not merit the ban Dean Miller has imposed. Our society tolerates expression, even offensive expression, because we value all forms of discourse regardless of content. The pressure from OCR and the Title IX suit forced Yale to compromise its core values, one of which is a commitment to free speech.

Dean Miller's precedent in banning DKE for creating a "hostile" environment raises troubling questions. Who decides what speech is hostile? The University administration? The alleged victim? The Federal Government? By definition, any decision-maker comes with his or her own particular prejudices which bias the eventual decision. We distrust anyone censoring, and therefore should allow no censors. This willingness to ban "hostile" (as opposed to truly dangerous) speech is antithetical to a commitment to free expression for all.

Let me draw a parallel: As the grandson of Holocaust survivors, I find Holocaust deniers deeply threatening. However, I recognize their right to speak, particularly in a university setting, regardless of their views. I would not want me or anyone else restricting their speech. Rude frat brothers have the same right to make similarly incendiary remarks without fear of disciplinary reprisal.

My conclusion about the privileged nature of speech in our society is not new or unique: It began with the founding fathers in the First Amendment and was recently reaffirmed by the Supreme Court's decision in the Westboro Baptist Church case. In that judgment, eight justices upheld a homophobic group's right to protest soldiers' funerals. As the incubator and marketplace of ideas, universities have a unique role in safe-guarding this Western tradition of free speech. Dean Miller's decision to ban DKE for their obnoxious remarks undermines Yale's ability to maintain the free exchange of ideas necessary to produce the future thinkers of tomorrow.

OCR's investigation of Yale for violating Title IX evidently influenced Yale's decision to ban DKE from the campus. The University sacrificed the fraternity to please Assistant Secretary Ali and her office as they conduct their crusade against offensive (but free) speech. Indeed, Dean Miller went so far as to publicly release the results of a normally-confidential disciplinary hearing in order to signal Yale's compliance with OCR's troubling standards. As the Office of Civil Rights expands in size and scope, the Federal Government will intrude further into the workings of private universities, clamping down on any thought or speech it finds inappropriate. If the Obama administration can wield this type of politicized power over a wealthy institution like Yale, we can only imagine what it can do to schools less financially able to defend themselves. This is a true educational crisis at the collegiate level.

This week, James Madison went toe-to-toe with Russlynn Ali and lost. We can only hope that this serves as a wake up call for Americans worried about our nation's commitment to free speech.