Those blinded by the offensiveness of what the frat boys said fail to understand the ramifications of their punishment for every college in the country. In the wake of the incident, Yale came out and publicly condemned the speech, the frat boys involved profusely apologized, and the DKE national office suspended the frat’s pledge activities. So, the case should have been closed. Nevertheless, responding to complaints from students at Yale, OCR launched an investigation against Yale in March to investigate this and other incidents — ranging from lewd comments to allegations of assault. As anyone who’s ever attended a conference of the Association for Student Conduct Administrators — an umbrella group of administrators involved in campus justice — already knows, campuses are terrified of such OCR investigations as they are notoriously heavy-handed, onerous, and damaging to a university’s reputation. They are, of course, even more frightened that OCR wields the power to shut off federal funding. So Yale is now scrambling to appease the OCR investigators, starting with their punishment of DKE.
This is the problem that universities across the country now face. Frat boys and others say offensive things in part because people tell them not to. The desire to “get a rise” out of someone extends far beyond campuses into cable television, stand-up comedy, and practically every successful comedy movie of the last 15 years. People are not going to stop making tasteless jokes or offensive comments. But if universities know they can face a federal investigation and the loss of funding if anyone who says something offensive on campus is not punished, they have every incentive to overreact to offensive or controversial speech. Campus risk managers will police offensive speech with a better-safe-than-sorry mentality and campus ideologues who believe that no one should say anything politically incorrect will have carte blanche to punish and chill speech they dislike or disagree with. This may seem like a bleak outlook on how human beings respond to opportunities to silence voices they dislike, but my career has taught me that people are endlessly creative in finding justification to censor. That is why the Framers put the power to regulate opinion outside of the powers of government; they saw by example how quickly and almost inevitably such power gets abused. Now that universities have to fear losing all of their federal funding every time a frat boy offends, they have every reason to panic, and their rational overreactions to this threat endangers campus free speech and dissent.
But it is not too late for OCR to prevent this inevitable anti-speech panic. By making it clear that “harassment” means no more and no less than the Davis standard, OCR can eliminate the main excuse for campus speech codes.
Greg Lukianoff is an attorney and the president of the Foundation for Individual Rights in Education.