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May 23, 2011

What Yale's President Should Have Said about the Frat Boys

By Harvey Silverglate and Kyle Smeallie

dke_partying1015.jpg

The Department of Education is currently investigating Yale University for allegedly maintaining a sexually hostile environment. No one can deny that the New Haven Ivy is in a difficult position. To wit, Yale enacted changes last month to lower the standard of proof in sexual assault cases, and last week, College Dean Mary Miller announced that a fraternity would be banned for five years, a result of an October 2010 incident in which pledges shouted sexually-graphic chants. Yale, by all appearances, is capitulating to federal pressure. It didn't have to. Here's how Yale President Richard Levin could have stood tall, on behalf of educators and liberal arts institutions everywhere, in the face of Washington's unwelcome--and ultimately destructive-- intrusion.

Dear Assistant Secretary for Civil Rights Russlynn Ali:

Allow me to introduce myself. I am Richard Levin, President of Yale University. I've been at the helm of this great institution since 1993, making me currently the longest-tenured president in the Ivy League. As a long-time observer of higher education, and one who has praised its historical autonomy from the public sector, I feel an obligation to express my concern about recent developments from your office.

I'm writing today in response to a Title IX civil rights complaint for gender discrimination that your office has filed against my university, as well as a "Dear Colleague" letter sent by you last month to nearly every college and university,both of which concern the adjudication of sexual harassment allegations in higher education.

I’d like to begin by making clear that Yale University takes very seriously any and all allegations of sexual assault. Not only do we encourage students to report such instances directly to the Yale Police Department, but we have had on campus, since 2006, the Sexual Harassment and Assault Resources & Education (SHARE) center, which provides counseling, information, and advocacy to victims of sexual violence. The list of our efforts could go on, but that is not my purpose in writing today.

I want instead to convey the very difficult position in which Yale University currently finds itself. The Title IX complaint and the “Dear Colleague” letter have forced us to choose between compliance with your directions, and commitment to the promises we’ve made to our students (and, in a larger sense, to the civil society of which we are a part). In either event, we believe that we will be vulnerable to legal action and are inviting tremendous harm to our reputation.

Our predicament is illustrated by the actions last fall of a campus fraternity, Delta Kappa Epsilon. As documented in the Title IX complaint, a group of DKE pledges were instructed to shout, near a women’s residence hall, sophomoric chants such as “No means yes, yes means anal.” I found their actions to be appalling, and, exercising my “bully pulpit” prerogative as a member of the Yale community and as its titular head, I expressed as much in a letter to the Yale Daily News shortly thereafter. A “Forum on Yale’s Sexual Climate” was held within a week of the incident. The DKE President, for his part, admitted that the chants were “a serious lapse in judgment by the fraternity and in very poor taste.”

It was a trying episode for all involved, but it was also, as your boss President Obama would say, a “teachable moment.” Good speech responded to bad speech; the marketplace of ideas was at work.

Still, some called for punishment of DKE, saying that we should not allow such hateful rhetoric on our campus. More recently, others have pointed to punishment as a means to appease your office, as it would serve to publicly display our commitment to stopping sexual violence as well as gender discrimination.  Though I want nothing more than to shed the notion that Yale is harboring a “hostile” environment in terms of gender, I cannot in good conscience sacrifice our time-tested principles in the name of appeasement.

As I shall endeavor to explain below, I do not believe that sanctioning students for their speech—even at its most disturbingly misogynistic—is an option open to Yale’s administration.

First, we must remember that we’re dealing here with pure speech. Many, probably most, find the speech to be deplorable, if not downright unmentionable in polite company. But Yale long ago made a pledge to its students—it’s embodied in our University Regulations—to vigorously uphold free speech. “Every official of the university,” Yale policy reads, “has a special obligation to foster free expression and to ensure that it is not obstructed.”

The reasons for upholding even puerile expression are far from trivial; they cut to the core of why we, universities in a free society, exist in the first place. Amid tremendous campus upheaval in the 1970s, Yale appointed a committee to examine the state of expression on campus. What was produced became known as the Woodward Report, named after the report’s principal author, the late and great Professor C. Vann Woodward. It is a document in which we have tremendous pride, and which formed the basis of our current policy on expression. It posits: “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.” That is no less true today than it was in 1975.At Yale, we take this profound obligation seriously. It is a guiding light.

Were we to contravene these principles and punish the DKE students, we would not only be violating our core values, we would also be in danger of being sued. As a private institution, we are of course not bound by the First Amendment and its free speech protections. Courts have, however, interpreted the provisions of a student handbook as legally-enforceable terms of an implied contract. As detailed above, we have unequivocally promised free expression to our students, and they should reasonably expect us to uphold our end of the bargain.

Which brings me to my second point: It is my fervent belief that all students at Yale University are intelligent, capable, and strong. As such, they need no authority figure to intervene when certain forms of expression may be upsetting to them. We trust that they are mature enough to either ignore the expression, or respond with what they see as better (or perhaps I should say tougher)speech. We saw the latter quite vividly in the aftermath of the DKE incident. Combatting speech with more speech, Yale students turned lemons into lemonade. Indeed, one value of a liberal arts education is precisely this—to enable our students to cope with the challenges of a free society.

What would it convey to our students were we, in this instance, to make an exception to our principles of free expression? For one, I believe it would convey a completely undeserved notion that our female student population is incapable of defending itself against offensive and sexist expression, and that they need protection from an authority figure. If a group of Yale women gathered to verbally disparage male undergraduates, I do not believe that I would hear similar calls for punishment. Why is this? Women are no less capable than men of fending for themselves, of shrugging off the chants of Neanderthals, or better yet, putting them in their place. If we are to realize true equality, we must treat students equally.

For these reasons, I am choosing not to punish the students involved in the DKE incident. In the event your office chooses to penalize Yale for taking this course, my institution stands ready to defend itself in every appropriate tribunal, from the judiciary to the court of public opinion. Legal counsel informs me that Yale is well within its legal and constitutional rights in resisting these attempted encroachments on its core values.

My concern today, however,reaches beyond this single occurrence; it extends to how students accused of wrongdoing will be treated, not just at Yale, but at colleges and universities across the country. The basis of my larger concern is the “Dear Colleague” letter issued last month by your Office of Civil Rights, which dictates certain mandatory procedures for campus disciplinary bodies adjudicating claims of sexual harassment and assault. The changes outlined in your letter apply to all colleges and universities that accept federal funds, including private universities like Yale.

There are a number of changes from current procedure that are required by your letter. Not all of these changes are problematic. For example, I do think that colleges and universities should never dissuade a victim of sexual assault from filing a police report. Your letter rightly puts schools on notice that this practice is not acceptable.

One reason that I believe this particular obligation is a step in the right direction is that the criminal justice system, as opposed to the campus tribunal, is far better equipped to handle serious allegations like criminal sexual assault. From investigation to trial, prosecutors, defense attorneys, and judges are responsible for providing fair treatment to both the accuser and the accused. The same cannot be said for campus disciplinary bodies, often comprised of faculty members and administrators who have little to no training in how to handle serious cases. Reaffirming the obligation to report grave allegations to outside authorities is a step in the right direction.

Some portions of your letter are, however, very troublesome. For example, your letter mandates that colleges and universities use a “preponderance of the evidence” standard—more likely than not that the accused is guilty—in cases involving sexual harassment or violence. The more demanding “clear and convincing” evidentiary burden, previously used at many institutions such as Stanford University, now risk “OCR review” that could result in a withdrawal of federal funding—a disastrous financial blow to almost any college or university. Educational institutions are thus forced to choose between adhering to civilized and fair fact-finding standards and procedures, and the loss of federal funds.

It’s not surprising that some institutions have quickly changed their policies to comply with your new guidelines. The University of Virginia ramped-up a sexual misconduct policy update already underway; the Student Union Senate at Washington University hastily enacted changes, to the chagrin of even some administrators there; and Brandeis University immediately lowered the evidentiary burden in sexual assault cases. In fact, the immediate policy change announced by Stanford President John L. Hennessy—a week after your letter was issued—likely violated the Stanford constitution, which requires consultation with various campus constituencies, as an observant alum pointed out in the Stanford Daily.

As I endeavor to explain below, Yale will not be joining these institutions in changing the way we adjudicate cases of sexual assault. I truly believe that we must respect the rights of the accused, and that doing so does not diminish from the gravity with which we approach the issue of sexual assault.  

Some have argued that, because the campus disciplinary system does not dole out the same degree of punishment as a criminal court, the evidence required for a finding of guilt should be less stringent. I cannot speak for these other institutions, but I feel a certain uneasiness, as the leader of a liberal arts university, in demanding less accuracy in our disciplinary procedures. Our mission is the pursuit of truth, and nowhere should that be more demanding than when we are declaring a person guilty of one of our society’s most heinous acts.

Alas, to err is human, and we would be remiss for not recognizing the potential for error in campus disciplinary bodies. Indeed, even before the lowering of the evidentiary burden, a number of students around the country were found guilty in campus tribunals on sexual assault charges, only to be later vindicated. At George Washington University, a student found guilty of sexual assault—despite the eyewitness testimony of his three roommates that the encounter was consensual—is now suing the school for $6 million in damages. The University of North Dakota found a student guilty of sexual assault, but refused to reopen the case even after state authorities charged his accuser with filing a false police report. And at Brown University, a student withdrew in 2006 after being accused of rape and now is suing the university, his accuser, and her father, a wealthy donor who allegedly influenced Brown officials throughout the process.

This is simply a cursory review of some recent cases that saw the light of day. It is uncontestably true that, with a lower standard of evidence, the number of false findings of guilt will only increase. I fear that, with the lower standard of proof mandated by your office, Yale could end up on the wrong side of a costly lawsuit, accused of damaging a student’s life by wrongly labeling him or her as a rapist.

Consider, for purposes of comparison, the work of the national Innocence Project, which has to date helped free some 271 inmates, some of whom were on death row. Even in the criminal justice system, where the accused are afforded significantly enhanced protections and charges must be proven “beyond a reasonable doubt” (an even higher standard than “clear and convincing evidence”), wrongful convictions occur with disturbing frequency.  

Still other aspects of your“Dear Colleague” letter foretell problems if and when implemented. For example, on some campuses, when certain allegations charge a crime as well as a violation of campus rules—rape is the most obvious example—a campus may, or even must, postpone its own tribunal while the criminal justice system proceeds. This accommodation by the college to the criminal justice system makes sense, because anything the student might say in the campus tribunal could be used to prejudice his criminal defense.

Yet your letter insists that while the college might “delay temporarily the fact-finding portion” of its investigation “while the police are gathering evidence,” the “school must promptly resume and complete its fact-finding” even before charges are resolved in the criminal justice system. As a practical matter, this makes it virtually impossible for any student, accused by a fellow student in the campus tribunal and simultaneously investigated by the police, to defend him or herself on campus. It means, in effect, that a mere accusation ends the accused student’s college career.

I hope I’ve conveyed my sincere concern about the issue of sexual assault on campus. There is no doubt that it must be addressed, but certain precautions are necessary in a free society devoted to substantive and procedural values. First, we must not conflate disconcerting speech with sexual assault—it serves not only to put universities in a lose-lose situation, forced to choose between their principles and their pocketbook, but it also waters down the real cases of assault when sophomoric chants are equated with violence.

And when we are dealing with sexual assault, I firmly believe that lowering the standard of evidence for such a serious crime will only inject more uncertainty into the process, while increasing the likelihood that students will be wrongfully convicted.

In conclusion, I must voice my concern that these changes required by your “Dear Colleague” letter will do little but increase universities’ legal exposure and diminish student freedom as well as long-standing liberal educational values. As President of Yale, I have a moral as well as legal obligation to seek to protect the heart and soul of this institution from such unwarranted encroachment. I sincerely hope – and urge – that the “Dear Colleague” letter be withdrawn and rethought by your office. But, in any event, as a matter of solemn obligation, Yale finds itself unable to sacrifice its core principles.

                                                Sincerely,

                                                Richard C. Levin

                                                President, Yale University

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Harvey Silverglate (has@harveysilverglate.com) is the co-author, with Professor Alan Charles Kors, of The Shadow University: The Betrayal of Liberty on America’s Campuses (Free Press 1998, now in paperback from HarperPerennial). He is co-founder and currently Chairman of the Board of Directors of The Foundation for Individual Rights in Education, www.thefire.org. Kyle Smeallie (ksmeallie@gmail.com)is a FIRE program associate.



Comments (23)

Ralph Gizzip:

Nice Response. Too bad virtually all the colleges and universities are of a similar mind to the "Dear Colleague" letter.

bingobill:

Having escaped the gulag of a Liberal indoctrination and instead enlisted following high school I missed out on the PC kool aid and learned to think for myself.
It was always the assumption that colleges would set boundries for behavior unitl 'In locis parentis' was thrown out by the forefathers of todays liberals. In the sixties and seventies the discilpine of the university system was abandoned in favor of 'life experiences' and wanton behavior became the norm. Codes of conduct, once the manistay of all colleges with a decent reputation, were trashed by those 'Cool, popular communist professors' whom our current Commander in Chief idolized so well. Colleges transormmed into hedonistic playgrounds where lefty philosphy was debated between bong hits and NOW membership was synonomous with the pill.
Rape accusations are a political statement of protest by many a young woman with aspirations of victimhood. Yes, it does happen, but it should be handeld by law enforcement professionals and not by the Witch hunters of identity politics.

Israel Pickholtz:

Who is he to talk. Yale was the one who wouldn't allow the Muhammed cartoons in a book about the Muhammed cartoons. If he had said what you suggest, he would be a laughingstock.

Kevin:

I am soooooo glad I am past college. It's getting to the point that between the anti-male bias in elementary school and the anti-male bias on campuses, the libs are doing everything possible to remove men from educated, successful society (except their own protected little boys). This country is doomed.

Barry D:

You get to be the longest-lasting Ivy League college President by going wherever the wind is blowing, not by standing for anything.

jgreene:

How many ways can you tell both Yale, other colleges and Universities and the Federal Government "...bull**it".

Ferd:

My goodness! A university crushing free speech on its' campus? Unheard of!

A nice letter, but you know they will never write something like this. Takes too much cojones to stand up for your rights.

And before any libs get on and start complaining about how we just must stop any mean speech, because it's mean, and also, how hateful I am towards women, just keep it bottled up. Free speech means everyone gets to say whatever they want, not just you. I'm sure you libs were excited that Larry Flynt won his case against the Moral Majority. Funny how you libs never realized that you've become the Moral Majority, only worse, more strident, and less humorous.

Jessica:

If these writers had any knowledge at all they would know what goes on at Yale. It is an incredibly hostile environment!

With God all things are possible:

Defund the Department of Education at once.

TTB:

I have no sympathy for Yale or any other formerly private institution which voluntarily chose to dance with the devil in order to get funds.

Universities, colleges, and museums across the country sold their independence from political control. Now they find out what it it means to be crack whores: the crack dealer always wins, and the crack whore, diseased and abused, eventually dies.

The federal funds whores have only one respectable option: stop whoring.

Marta Richards:

Actually, this probably fits neatly into the social engineering goals of Pres. Levin and many other college presidents. When you add to the mix here that the people whose speech is being limited are fraternity boys (not just a random group of boys) you are dealing with a group which college administrators across the country have targeted for extermination and elimination. At my alma mater I understand that there are actually admissions policies which seek to identify in advance those who might like to drink or to join fraternities, and those students will not be accepted. One of the purposes for targeting, as Harvey has explained in "The Shadow University", is to insure that there are no tort claims against the university as a result of drinking (a student at Princeton several years ago nearly electrocuted himself when inebriated when he fell on the tracks of the "Dinky" train which runs near the campus). But more than that, fraternities are seen as the bastion of conservative white male power--both George H. W. and George W. Bush were members of DKE when at Yale--so this fits neatly into a scheme to dismantle any groups such students gravitate toward. At Princeton the problem has been that there are sororities which are all-black which the university heartily approves of as being "needed" for the best interests of the black female undergrads; there has been a search for a way to get rid of the non-black fraternities and sororities (which, unlike the black sororities, are color-blind in their selection processes and actually quite diverse.) This dovetails with that effort. Expect an embrace of this sort of regulation on more Ivy campuses as "necessary" to make the campus a cohesive and hospitable place to LGBT, minority, and women students.

comatus:

I totally believe that the president of Yale actually would write "principle author" instead of "principal author." So I guess it's just me.

Jim in NC:

If I were to lead a bunch of students across camping chanting "Harvey Silverglate is a dope," that would be speech. If I were to lead a bunch of students across campus chanting "punch Harvey Silverglate in the nose," that would not be speech but an incitement to violence.

Which one does "no means yes, yes means anal" sound more like?

Annie :

Somebody please hit the reset button on Western Civilization or at the very least on the Jewnited States of America.

It no longer deserves to survive after displaying such pathetic weakness.

What a Jewish freak show the USA (Israel West) has become.

Thanks
Annie

Hieronymus Braintree:

The controversial chant was an obvious send-up of feminist attitudes about men and in no way a serious statement or threat. "No means yes! Yes, means anal!" is a brilliant absurdity that was, to all appearances, deliberate.

Compare that to the "Vagina Monologues" which is performed at hundreds of universities all across the country in which the male characters are all treated as creeps and the women in the audience are encouraged to chant "cu*t." Anti-male stereotypes aren't being sent up. They're being treated as completely true. Yet, somehow, men don't complain about the hostility shown them.

There is a lot of sexism in America but it appears to be overwhelmingly protective of women.

Hieronymus Braintree:

The controversial chant was an obvious send-up of feminist attitudes about men and in no way a serious statement or threat. "No means yes! Yes, means anal!" is a brilliant absurdity that was, to all appearances, deliberate.

Compare that to the "Vagina Monologues" which is performed at hundreds of universities all across the country in which the male characters are all treated as creeps and the women in the audience are encouraged to chant "cu*t." Anti-male stereotypes aren't being sent up. They're being treated as completely true. Yet, somehow, men don't complain about the hostility shown them.

There is a lot of sexism in America but it appears to be overwhelmingly protective of women.

anonymous:

"Which one does "no means yes, yes means anal" sound more like?"

speaking truth to power, unfortunately

John David Galt:

If President Levin means what he says, he will rescind both the ban of DKE and the new "preponderance" rule in rape-accusation cases, even if it means refusing all federal funds from now on. If he does not, he will forfeit the respect of all non-sexists.

But for me, the only surprise in this entire episode is FIRE's continued, complete silence. What's up with that?

Jim in NC:

I doubt very much that marching across the Yale campus chanting that I should be punched in the nose would be deemed by me or any sane court as an incitement to violence or a real threat. An incitement has to threaten immediate, imminent, real violence, and it has to be seen as serious rather than political, metaphoric, or humorous/parodic. It is perfectly obvious that a group of marchers prancing across the Yale campus chanting about my nose would not qualify as a real threat to anyone living in the real world. (Of course, I can't discount entirely that, given the "feel safe and comfortable" attitude that has run rampant in so much of academia of late, there are now some hyper-sensitive souls who see threats lurking around every corner of the campus. But these timid folk surely do not qualify as the "reasonable person" standard so deeply embedded in First Amendment and common law.)

A group of frat boys chanting "no means yes, yes means anal" does not even come close to constituting real incitement. Anyone who doesn't understand that this was a puerile and sorry attempt at a humorous fraternity initiation rite and not a real incitement to violence needs to (1) read some Supreme Court cases (see, for example, the unanimous opinion in Hustler Magazine v Falwell, 485 U.S. 46 (1988)) and (2) see a shrink. Sadly, only on a college campus might one find anyone who would interpret such chanting as a threat or incitement to violence. Out in the real world, this would be laughable. Indeed, Yale is becoming laughable. That's the really sad part. It is sadder still that so many of those on campus who recognize what is happening seem too timid to say so loudly and publicly, for fear of being labeled (falsely, to be sure) as sexist.
-Harvey Silverglate

A Guest:

I am very conservative and a strong constitutionalist. But I have to disagree with Minding the Campus on this one. Liberty is not the same thing as libertinism. That is precisely why I consider myself a conservative (along the lines of an 18th century classical liberal) and not a modern-day libertarian. Our Founding Fathers were specifically eloquent on the nature of a people who could maintain self-governance: if it were to succeed in the long run it would rest upon a population which worked to achieve then well-understood VIRTUES such as self-restraint, respect, self-reliance, honesty, hard work, etc. The rough and tumble of protected speech was never meant to preclude all restraint. Does anyone believe that it would have been considered acceptable to the men who drafted our Constitution to stand in Congress, or in Church, or in a schoolhouse, or on the public square shouting "No means yes, and yes means anal!"? They did not create a nation abandoned to any public degeneracy thinkable. We cannot stand in a crowded theatre and shout "Fire!" We cannot tell our employers to go "F__K themselves" and maintain our jobs. We have zoning laws. If as conservatives we believe there can be NO restraint upon speech of any kind due to the existance of the 1st Amendment, then we also must discontinue our campaign against classroom indoctrination by political activists. The very argument against such classroom indoctrination is that professional standards are legal and ideological professors cannot abrogate all professional standards by hiding behind 1st Amendment rights. I am not prepared to give that up. Yale has the right to hold frat boys to standards of conduct just as it has the right to require its professors conduct themselves according to professional standards of non-indoctrination in the classroom. If not, this website may as well not exist. Colleges abandoned their role of in loco parentis in the 1960's as they allowed students to take over campus culture. It is about time such institutions remembered the purpose of higher education: the transmission of culture and education to the next generation. I would be appalled if I spent hundreds of thousands of dollars to send my boys to an elite institution of higher education where such behavior was tolerated. I don't want their professors hiding behind the 1st Amendment to contravene professional standards in the classrooms; and I don't want young men hiding behind the 1st Amendment to behave like degenerate libertines within a selective and private institution. If you disagree, please tell your boss to "go F__K himself" next week and report back here how that works out for you.

FIRE's silence? Try Google and you get, for example: http://thefire.org/article/13193.html, which hardly exhausts the list.

michael reed:

A Guest is A Joke, no doubt. A very conservative, strong "constitutionalist" would never, ever consider a violation of 1st Amendment protections for any reason, short of giving comfort to enemies of our nation. Never.
Only a fascist or some other totalitarian would attempt to perform pre-crime enforcement of their own moralizing attitudes towards public, free-speech activities.

By the way, anyone in a free society is welcome to tell their employer to go "F-themselves" and many free people do so each day. In response, the employer is free to send them packing... or apologize for deserving the comment.
If you want to be a nanny, move to the UK you sanctimonious, pompous prig. They have many openings for you there.

MG:

Yeah, all those liberal elites running the universities are trying to stamp out masculinity on the campus. No one cares about our boys! Almost all rape charges at colleges these days are fictions used to keep down men on campus!

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