When the Committee to Establish Principles on Renaming issued its report last month, Yale administrators compared it to “the conclusions reached 40 years ago by the committee on free speech chaired by C. Vann Woodward.” We should all be pleased that our University continues to applaud the Woodward Report. But recent developments should leave us concerned about the depth of Yale’s commitment to freedom of expression.
President Kingman Brewster appointed the Woodward Committee — known formally as the Committee on Freedom of Expression at Yale — in response to efforts to block appearances by unpopular and obnoxious speakers, including the segregationist governor George Wallace. How was Yale to reconcile “free expression” with calls for “mutual respect and tolerance”?
Its answer was unequivocal. Woodward and his colleagues accorded free expression at Yale a degree of protection close to that afforded by the First Amendment in the public sphere.
The report supported its conclusion by a simple syllogism: (1) “The primary function of a university is to discover and disseminate knowledge”; (2) “[t]o fulfill this function a free interchange of ideas is necessary;” therefore, (3) “the university must do everything possible to ensure within it the fullest degree of intellectual freedom.”
The report acknowledged that other ideals must also be considered, including “friendship, solidarity, harmony, civility or mutual respect.” Ultimately, however, the balancing of these competing values was an “ethical responsibilit[y] assumed by” individual members of the University community, rather than a task for the University itself, which has the primary and “overriding” obligation to protect free expression.
In recent years, a variety of social and political forces have challenged Yale’s commitment to freedom of expression and that of other universities. Two developments are particularly worthy of mention.
First, under pressure from the federal government, universities have developed a broad concept of “harassment” that encompasses hitherto protected speech. Under this aggressive redefinition of antidiscrimination law, universities face significant pressure to discipline students and professors for speech and conduct, on or off campus, that runs afoul of the sex orthodoxy of a particular agency or individual.
For instance, tenured professors on other campuses have faced discipline merely because their teaching or research challenged prevailing views about sex or sexual misconduct. Importantly, such discipline was imposed not through ordinary procedures which universities have long employed, but through specialized inquisitorial procedures developed for sexual misconduct cases.
A short anecdote will make my point clear. In 2000, the former master of Saybrook, Antonio Lasaga, was convicted of federal child pornography charges. As you might expect, the University sought to revoke Lasaga’s tenure for misconduct, and it ultimately did so — but only after a formal proceeding before the disciplinary body known as the University Tribunal.
Lasaga’s rights before the University Tribunal were basically those recognized by the American Association of University Professors (AAUP) as essential in any proceeding that might affect the protections of tenure. These included the right to a public hearing and a record of the proceedings; the right to representation and advocacy by counsel; the right to confront and to question adverse witnesses; the right to compel or present favorable witnesses, and the right to be tried under the legal standard of “clear and convincing evidence.”
Today, none of these protections apply in a Yale sexual-misconduct proceeding, even for an allegation of noncriminal conduct. There is no right to a public hearing, or even to a complete record of the private hearing; no right to have counsel speak on one’s behalf; and no right to call friendly witnesses, much less cross-examine adverse witnesses. To top it all off, the standard of proof has been reduced to a preponderance of the evidence — the lowest standard in American law.
At Yale, there was recently an effort to impose new and broad ranging “Review Procedures for Complaints about Violations of the Standards of Faculty Conduct,” which largely mimicked Yale’s sexual misconduct procedures. But the new procedures would have applied to any allegation of a faculty member failing to live up to newly adopted “Standards of Faculty Conduct.” One faculty leader said that these proposals “represent[ ] the most staggering usurpation of power of the faculty that I have seen in over 30 years at Yale.”
A second recent development bears mention. Yale, along with other universities, has ostentatiously declared a commitment to “civility.”
“Civility” sounds innocuous; indeed, we can all agree that we should strive to be civil to each other. But problems arise when we are told that “uncivil” speech has turned the campus into a “hostile environment” — and, more dangerously still, that university officials have a duty to make a campus “safe.” In the fight against incivility, university officials too easily morph into monitors of acceptable speech — and, ultimately, into the unhappy role of “Civility Police.” Campuses can be rendered “unsafe” not only by actual threats of violence, but also by unexpected personal offense at controversial claims or passing remarks.
As a result, the “Civility Police” at Yale and other universities have started to adopt the tactics of the real police — but to fight speech, not to fight crime.
Even more troubling, Yale, along with some other universities, is considering an anonymous reporting mechanism, which enables users to report offensive behavior to university officials online or through a smartphone app. At Yale, such an app would build on and intensify existing practices like the anonymous “Yale University Hotline” and the secret collection of reports of misconduct, which may not be brought to the attention of their target for some time. Only a few days ago, on Jan. 9, 2017, Yale’s provost encouraged the community to use these anonymous reporting mechanisms, which are available for any type of compliant —not just sexual harassment. Unlike the rules governing our state and federal systems of justice, the Yale monitoring rules expressly provide that an informal complaint is never truly closed.
Ultimately, these tactics threaten the freedom not only of students, but also of faculty members, whose due process rights are being subordinated to the demands of new campus creeds and to the dubious procedures created to enforce them.
None of this is to say that university officials, at Yale or elsewhere, must stand idle while the members of their community face threats, harassment or discrimination. The Woodward Report itself recognizes that Yale officials may also voice “other values,” as long as they do not censor or punish speech. Yale administrators, like all of us, retain the power of disapproval through the exercise of free speech itself.
And, of course, universities have the duty to protect their members from actual or threatened violence, and to offer them the support necessary to navigate the conflict and discomfort that often accompanies vigorous debate in a dynamic academic environment. But if university officials prohibit or punish offensive speech or speakers, they cross the line between endorsing “other values” and viewpoint censorship.
What is at stake here is whether Yale will remain a great university. As professor C. Vann Woodward said in 1974: “The University is in danger of sacrificing principle to expediency.” We cannot let that occur.
José A. Cabranes, United States Circuit Judge for the Second Circuit, was Yale’s first general counsel and a fellow of the Yale Corporation. In describing the policies and governance of Yale, it does not comment on federal or state law. A fully annotated version of Judge Cabranes’s essay can be found in the Yale Law & Policy Review.