Yale, the Department of Education, and the looming free speech crisis

Yale University’s recent decision to punish a fraternity that made pledges chant offensive slogans was heralded by some as a blow against sexual harassment. But it may be the beginning of a new wave of campus censorship of politically incorrect speech. The reason lies in the relationship between the Department of Education’s Office for Civil Rights (OCR), which is in charge of policing the enforcement of antidiscrimination laws on campus, and the ever-growing ranks of campus bureaucracy.

On April 4, 2011, OCR issued a 19-page letter laying out detailed procedures every university in the country must follow in cases involving claims of sexual harassment and assault. A college that fails to follow these guidelines risks an OCR investigation and the loss of federal funding, a devastating blow for many colleges. In the case of Yale, for example, OCR has the power to withhold half a billion dollars in federal funds.

The new regulations were handed down in an effort by OCR to address campus sexual assault. For years now, sexual assault has been understood as an especially egregious form of sexual harassment, allowing the OCR to police how universities respond to it under its power to enforce Title IX. A major component of the “guidance” letter is the requirement that universities adopt a “preponderance of evidence” (roughly a 50.01% or “more likely than not”) standard of proof for deciding harassment claims, including rape.

This mandate effectively overruled many colleges that use a standard of evidence more protective of the accused. While whether universities should be in the business of adjudicating felonies at all is a crucial question, several commentators have rightly pointed out that — especially in light of the rush to judgment in the Duke lacrosse case — lowering due process is no way to increase campus justice.

What has not been sufficiently examined, however, is the potential disaster for freedom of speech that the April 4 letter presents.

Why should a campaign against sexual violence have any ramifications for freedom of speech? Simple. While OCR’s April 4 letter is aggressive and specific in requiring universities to police harassment, it took little to no notice of the fact that most university harassment policies, and many university sexual misconduct (a euphemism for various kinds of sexual assault, including rape) policies, are dangerously broad.

Indeed, since the 1980s, harassment policies have been the main vehicle for campus speech codes — that is, collegiate policies that restrict speech protected by the First Amendment. These policies don’t just sweep in a little protected speech; in some cases, they go so far as to make virtually every student on campus guilty of harassment. Here are just a few examples of how harassment is defined on campus:

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”