Behind a Yale fraternity’s suspension

by Walter Olson on May 25, 2011

Federal regulators and private complainants step up pressure for tougher university disciplinary action against offensive males — and speech-related offenses will be very much under scrutiny. [Greg Lukianoff/Daily Caller, Harvey Silverglate and Kyle Smeallie/Minding the Campus, Caroline May/Daily Caller]

More: The Yale Alumni Magazine notes that DKE (Delta Kappa Epsilon) brought the University “bad publicity.” And Dave Zincavage has been blogging critically about the affair. Further: Scott Greenfield.

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“Due Process Stops at the Campus Gates?”
06.03.11 at 4:15 pm

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1 John David Galt 05.25.11 at 3:51 pm

The only surprise for me in this story is FIRE’s complete silence.

2 Hans Bader 05.25.11 at 4:09 pm

It’s worth noting that if Yale disciplined the fraternity due to government pressure — rather than voluntarily — that pressure would trigger First Amendment scrutiny.

A private college can voluntarily discipline students for offensive speech without violating the First Amendment, but if the government forces it to do so, then that violates the First Amendment unless the speech is unprotected (that is, unprotected against government restrictions). See, e.g., Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005) (First Amendment violated if private employer restricted speech at the behest of the government rather than on its own initiative); Korb v. Lehman, 919 F.2d 243, 248 (4th Cir. 1990) (government could not pressure private employer to fire employee for speech).

The Supreme Court has recognized the distinction between what a private institution can do voluntarily and what the government can force it to do. See, e.g., Peterson v. City of Greenville, 373 U.S. 244, 247, 248 (1963) (finding unconstitutional a city ordinance which required restaurants to be segregated, because imposing the requirement on restaurant owners violated the equal protection rights of patrons, even though back then, voluntary discrimination by a private institution was not deemed illegal by the courts); Truax v. Raich, 239 U.S. 33 (1915) (finding unconstitutional a state law requiring that at least 80% of each employer’s employees be native-born citizens or qualified electors, because imposing the requirement on employers violated the equal protection rights of their employees, even though back then, the courts considered voluntary discrimination by employers to be legal).

3 Max Kennerly 05.25.11 at 11:09 pm

Yale should have nuked DKE long ago. Even back in my day they were known to have, shall we say, questionable views on sexual consent. Allowing serial rapists to flourish on your campus is indeed a Title IX violation.

4 Hans Bader 05.26.11 at 10:02 am

Max, in your comment above you suggest that DKE members were “serial rapists” and that you were aware of their propensities “back in [your] day.” Did you tell Yale administrators? If not, why not?

If schools officials have actual knowledge of sexual harassment like serial rapes, and are deliberately indifferent to it, then the school can be liable under Title IX. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). And Title IX is not the only potential cause of action.

School officials can’t fix problems if you don’t bring to their attention.

While the frat boys’ vile chants making light of a lack of sexual consent did not constitute a “true threat” or similar category of unprotected speech (see Virginia v. Black, 538 U.S. 343 (2003)), they could be relevant circumstantial evidence against them in a proceeding in which they were accused of sexual assault.

There is a big difference between the mere use of speech as circumstantial evidence in proving a non-speech-related crime, and speech itself being the crime and being directly punished as such. Compare Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001) (professor’s writings expressing yearning for the death of a community college’s president and fantasy about the funeral of a trustee, were protected speech, not true threats, and could not constitutionally be punished under the college’s anti-violence policy).

The former is more readily permissible than the latter. See also Papish v. Curators of the University of Missouri, 410 U.S 667 (1973) (state college couldn’t discipline graduate student for her vulgar public speech).

5 Max Kennerly 05.26.11 at 12:03 pm

Hans,

Victimized students filed complaints. Secret hearings were held at ExComm and slaps on the wrist were handed out. DKE members tend to be wealthy legacy admissions (noted drunken imbecile George W. Bush was in DKE) or athletes, and so they tended to be served justice-lite.

I saw more than a few “true threats” by DKE members in my time there. Frankly, as an alumni I’m appalled to see that DKE previously could use Yale systems for their events — we were always told that, because DKE was totally unaffiliated with Yale, there was nothing the administrators could do. Seems that Yale stupidly relaxed its attitude towards DKE and paid the price.

I don’t think DKE should be singled out for special treatment; I think exactly the opposite: DKE members should be punished like everyone else for their transgressions. Problem is (or at least was), they weren’t, because Daddy’s some bigshot hedge fund trader or because Junior has a good curveball.

6 Richard Nieporent 05.26.11 at 4:26 pm

Allowing serial rapists to flourish on your campus is indeed a Title IX violation.

Serial rapists, really? If that were the case then they would be violating more laws than just Title IX. So you reported all of these rapists to the New Haven police department, right? If not then I guess you are guilty of covering up these horrendous crimes. Oh, was this just hyperbole on your part? When you use such language it reflects on your credibility. It makes you seem like an irrational, left wing ideologue.

DKE members tend to be wealthy legacy admissions (noted drunken imbecile George W. Bush was in DKE) or athletes, and so they tended to be served justice-lite.

Such intemperate language, Max. I would suggest you post your comments on Daily Kos or Democratic Underground. Those website would be much more in tune with such ravings.

7 Bill Poser 05.26.11 at 4:50 pm

FIRE has not been silent. See: http://thefire.org/article/13208.html and links therein.

8 steve mansfield 05.31.11 at 12:45 pm

First, the comment about GW Bush by one of your bloggers. It was conclusively proven by the Democrat-controlled media that Mr. Bush had SAT scores and college grades (he went to Ivy League schools) essentially identical to those of both Al Gore and John Kerry. Query: why won’t the current president release his college and law school grades ? Second, it is not a violation of Title 9 to oppose the radical feminist agenda.When I was in an elite law school in the 1970s I was publicly opposed to the ERA and while I took some heat for it (thank goodness for anonymous grading) no one ever suggested that I could be sanctioned for my politically incorrect stance. If a college administration was aware of actual rapes being committed on campus it is my opinion, as a former appellate judge, that they could be charged with obstruction of justice should they not turn over relevant evidence to the police and could also be civilly liable to victims for knowingly allowing an unsafe environment to exist on campus. The First Amendment protects drunken frat louts, Nazis, ACORN, and many other unpopular groups and persons alike.

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