Yale, Beyond the Pale
by Richard A Epstein, Hoover Institution:
In his recent op-ed in the Wall Street Journal, Yale President Peter Salovey tried to explain how colleges can make room for both freedom of speech and a culture of inclusion and diversity. Salovey wants to have his cake and eat it, too. The supposed tension between free speech and inclusion is false, he argues, because it is possible to pursue both ends simultaneously. Several days later, Yale was again in the news for its sexual harassment tribunals. As Jennifer Braceras explains in her op-ed for the Wall Street Journal, “College Sex Meets the Star Chamber,” Yale’s current policy on sexual harassment has led to a massive expansion of Yale’s control over the life of its faculty, students, and staff. At first, look, Salovey’s defense of free speech and inclusion seems unrelated to Braceras’s argument about the reach of Yale’s sexual harassment directive. But they are part of the same problem.
Yale defines sexual harassment very broadly: “Sexual harassment consists of nonconsensual sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature on or off campus, which includes (3) such conduct [that] has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating or hostile academic or work environment.” To be sure, no one wishes to defend assaultive or abusive sexual misconduct. But the Yale definition is capable of a broader reading. Combine the italicized words in the basic definition with clause (3) and the threat that this definition poses to free speech becomes clear. The phrase “purpose or effect” reaches actions that some reasonable person thinks might have an adverse effect, even if no harm was intended by it. Nor is there any effort to limit what is meant by a “hostile academic or work environment,” or activities on and off campus. It is all too likely that eager Yale bureaucrats will read these provisions broadly in order to expand the scope of their own authority.
The situation is still more dangerous because of the highly dubious procedures that are used in these cases. The tribunals use the lower “preponderance” of the evidence standard for guilt, rather than the stricter “clear and convincing” standard, which means the accuser has to bring less evidence against the accused. On top of that, the accused is denied the central right of cross-examination, even though he will face dire sanctions if convicted. It is impossible to know from the articulation of these standards exactly how any particular case will play out, or whether the Yale system will guarantee some modicum of consistency across separate cases. But what is perfectly clear is that the diehards who are likely to implement this policy are the same folks who have taken the lead in implementing Yale’s policy on inclusion and free speech, in ways that necessarily sacrifice the latter to the former.
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