Despite Yale’s official position, the Competitive Enterprise Institute’s Counsel for Special Projects Hans Bader, speculates that Yale’s decision to ban DKE was a direct response to the OCR investigation because the schools do not want to lose any federal funding, which OCR can decide to cut off.
“Colleges probably care more about what OCR says than what the law says, because they don’t want to lose their federal funds, it’s OCR that will effectively decide if federal funds get cut off, and if the federal government cuts off their funds, it will take a long time and lots of legal bills to get the federal funds reinstated even if courts later rule that the federal government was wrong to cut off the funds.
According to Bader the prospect of the federal government asserting its influence over a private institution to stifle speech could raise some problematic legal issues.
“Yale is not a state college, and is not part of the government, so the First Amendment does not directly (emphasis his) apply to it. But the First Amendment does prohibit the Education Department from pressuring it to punish students for speech that the government itself could not punish,” Wrote in an email to The Daily Caller. “Yale is a private college, and it could have disciplined these obnoxious frat boys voluntarily (assuming no contractual obligation in its handbooks – like a provision promising extremely broad free speech rights — precluded it from doing so). But its doing so under compulsion raises thorny legal issues.”