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We Have a Diversity Bureaucracy. In the Wake of Yale Law Brouhaha, Prominent Scholars Say We Need A Free Speech Bureaucracy Too

'Universities are not punished for stifling free speech. They are punished for allowing harassment.'

Yale University in 2018 / Getty Images
• October 25, 2021 4:59 am

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In 2015, Yale University became ground zero for debates over free speech in higher education. After an email about Halloween costumes sparked months of protests against Yale's alleged racism, university president Peter Salovey took to the pages of the Wall Street Journal to assure the public of his commitment to academic freedom.

"In the course of all the events and discussions of the past year," Salovey wrote in the 2016 op-ed, "the Yale administration did not criticize, discipline or dismiss a single member of its faculty, staff or student body for expressing an opinion."

But when Yale Law School did two of those things last month—administrators publicly criticized a student for what the university now says was protected speech and subjected him to a process many professors consider disciplinary—Salovey was silent.

Salovey did not respond to a request for comment about the administrators' conduct. But as news of the incident has spread, the chorus of outrage has grown louder and more diverse. From progressive law professors to conservative senators, luminaries across the political spectrum are saying Yale has gone too far—and some are calling for consequences, including the firing of administrators and revocation of federal funds.

"When things like this happen, there should be a formal investigation and disciplinary proceedings," said Princeton University's Robert George. "If, after a full and fair hearing, administrators are found guilty of violating free speech or other academic freedom rights of students or faculty, they should be dismissed. Until this begins to happen, you can expect more of this."

Arkansas senator Tom Cotton (R.) went so far as to threaten Yale's federal funding.

"I'm sadly not surprised that Yale Law is full of humorless petty tyrants trying to punish conservatives for harmless jokes," Cotton told the Washington Free Beacon. "If these schools want to keep getting federal funds, they should focus on teaching the law and protect the free speech of their students."

But such consequences are unlikely, legal scholars told the Free Beacon, because it is the threat of losing federal funds that motivates censorship in the first place. Though private schools like Yale are not bound by the First Amendment, they are bound by civil rights laws that forbid discrimination and harassment. That means they have an incentive to flout their own speech protections whenever a student registers offense, no matter how trivial the incident may seem.

"Universities are not punished for stifling free speech," said David Bernstein, a constitutional historian at George Mason's Antonin Scalia Law School. "They are punished for allowing harassment."

The result has been a large and growing imbalance of bureaucratic power within elite institutions, which rely on a sprawling diversity apparatus to shield themselves from liability.

"Every university and big corporation is now incentivized to have a bureaucracy dedicated to handling harassment complaints," Bernstein told the Free Beacon. "The problem is you don't have a counterbalancing First Amendment or free speech bureaucracy"—in part because there's no legal incentive to set one up.

The fruits of that asymmetry have disturbed even progressive professors. Nicholas Christakis, a sociologist at Yale and a self-described "lefty," said that "the university has no business policing the expression of its students" and called on Yale to apologize for the "shameful episode."

Martha Nussbaum, a left-wing legal theorist at the University of Chicago, said it "would be appalling and chilling" for any administrator to suggest that "the Federalist Society is per se racist," as Yale Law School diversity director Yassen Eldik alleged. Nussbaum's Chicago colleague Brian Leiter—who has argued that future generations are "doomed" if America does not one day embrace socialism—agreed, telling the Free Beacon that "Yale has some serious academic freedom and free expression problems."

These problems have persisted in spite of Yale's official policies, which protect speech "deemed irresponsible, offensive, unscholarly, or untrue." The issue, Bernstein said, is that allegations of harassment tend to have more teeth than allegations of censorship. Yale doesn't pay bureaucrats to enforce its free speech policies. It does pay them, as Bernstein put it, "to listen to anyone's harassment complaint, no matter how puerile it may seem."

That solicitousness isn't just a function of campus culture but also of the way courts and government agencies have interpreted civil rights laws over the past three decades. To qualify as "harassment," the Supreme Court ruled in 1986, conduct must be "sufficiently severe or pervasive" to create an "abusive" environment. While exacting in theory, this standard has proven elastic in practice—eventually coming to encompass symbols, memes, and viewpoints that many regard as protected speech.

"Cases from the '80s and '90s defined harassment pretty narrowly," said Eugene Volokh, a First Amendment scholar at the University of California Los Angeles School of Law. But over time, harassment started "expanding to things that people perceive as expressing racist viewpoints, and then to things with a connotation that some people find offensive."

In 2013, for example, the Equal Employment Opportunity Commission said that displaying a Confederate flag could constitute harassment under the Civil Rights Act. And in 2016, a Jewish man successfully sued his employer over a training video that used the "Hitler bunker" video meme, in which Hitler was parodically portrayed as the CEO of a rival company.

That concept creep has been accelerated by an activist tendency to conflate speech with violence. "When I was writing about harassment law 20 years ago," Bernstein recalled, "the claim was that racist language is harmful and harm has to be balanced against free speech. Now the claim is that racist speech is the equivalent of violence. So you don't have to balance anymore."

The Yale Law brouhaha is the latest example of how the harassment bureaucracy can undermine free speech. Trent Colbert, a second-year law student, had invited classmates to a happy hour at his "trap house," a term administrators said elicited nine "discrimination and harassment" complaints in under 12 hours. Summoned to the law school's Office of Student Affairs, Colbert was also informed that his membership in the conservative Federalist Society had "triggered" his peers.

When Colbert refused to issue a pre-drafted apology, the school's "discrimination and harassment coordinators" sent out an email on Sept. 16 that "condemn[ed]" Colbert’s "racist" message "in the strongest possible terms." The next day, Yale Law associate dean Ellen Cosgrove and Diversity Director Yaseen Eldik implied that the student's behavior could cause trouble with the bar.

For Volokh, the most concerning thing about Colbert's case is the precedent it sets for political discourse in elite law schools.

"Yale is sending the message that referring to Popeyes chicken and ‘trap house' might be punishable and maybe even illegal," Volokh said, noting that it was the school's discrimination and harassment coordinators who publicly condemned Colbert's party invite. "If ‘harassment' can be something as mild as that, then expressing views some find offensive will be even more clearly harassment."

Taken to its logical conclusion, Volokh added, such reasoning would preclude any discussion of controversial topics like race and crime.

All this suggests that the Colbert saga isn't just a preview of what will happen when today's students become tomorrow's judges; it is also a reflection of what has already happened to the law.

That transformation can chill speech even when allegations of harassment are ultimately dismissed, as they were in Colbert's case. "Regardless of the results of the process," Bernstein said, "going through the process itself is a huge harm."

Such processes have widened the gap between the purpose and structure of Yale Law School, which alums say is becoming a mechanism of conformity.

"The only reason this institution exists is to promote interesting thinking," said J.D Vance, a Senate primary candidate in Ohio and alum of Yale Law. "What it actually does is train people to be boring and provincial thinkers who harass other people for having original thoughts."

Even more liberal alums of the school, including Above the Law founder David Lat, share Vance's concerns. Lat tweeted that "​​the intellectual environment at Yale Law School right now is extremely hostile to conservatives."

"If a conservative or libertarian law student asked me if they should go to Yale Law today," Lat said, "I would have to think long and hard about my answer."

Update Oct. 25, 2021, 11:55 AM: This article has been updated to more accurately reflect a quote from Brian Leiter.