September 2011
The Department of Education is currently
investigating Yale University for allegedly maintaining asexually 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 Newsshortly
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 ourUniversity 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
principle 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
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.
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