By Harvey Silverglate and Kyle Smeallie
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
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.
Richard C. Levin
President, Yale University
Harvey Silverglate (firstname.lastname@example.org) 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 (email@example.com)is a FIRE program associate.