Title IX, Rape, and John Stuart Mill
If you follow the news, you likely know about the ongoing scandal rocking Yale University. A coalition of women’s rights activists, female students, and feminist organizations have brought a civil suit against the university under Title IX, accusing Yale of failing prevent the creation of a substantially threatening environment for Yale women. The most widely-reported incident:
Last October, 45 members and pledges of Delta Kappa Epsilon fraternity, of which George W. Bush was once president, marched through Old Campus, where most Yale freshmen live. The 15 pledges chanted “No means yes, and yes means anal!” and “My name is Jack, I’m a necrophiliac, I fuck dead women and fill them with my semen!” The 30 older men shouted “Louder!” No disciplinary action was taken.
The question I wish to address here is fairly simple: should a University prohibit such speech? The two phrases are different in content and context, so I’ll approach each separately. First, the ‘necrophiliac chant’ is probably the easiest incident to deal with. Though obviously in poor taste, the speech here is not threatening, abusive, or otherwise legally problematic; furthermore, it seems likely that the ‘target’ of any intended derision is the pledges. The second part is where the problem really lies. “No means yes,” a clear reference to the anti-rape slogan “no means no,” is more or less a direct assertion that, for lack of better words, rape is a pretty OK thing. It should go without saying that this is offensive and disturbing on all kinds of levels; the obvious misogyny and disregard for the well-being of female students frightening.
In engaging with this issue, I’d like to lay aside- for the moment- the question of whether the fraternity in question was actually supporting rape. While it seems likely to me that the point of this initiation ritual was to simply be offensive and vulgar as possible, regardless of content and context, as many commentators have pointed out the actual intentions of DKE are largely irrelevant. The chanting created a ‘hostile and frightening atmosphere,’ in the words of one Yale student; it certainly would seem to a ‘reasonable observer’ (the legal standard for determining culpability in most cases) that the men in question were proponents of rape or at the
very least not opposed to it.
The question then becomes whether expressing support for an illegal act (rape, in this case) should be either a) subject to criminal sanction or b) subject to sanction by the university. From a Constitutional perspective, the answer to a) is almost certainly no. While Title IX bans “unwelcome conduct of a sexual nature that is so severe or pervasive that it creates a hostile environment for a reasonable person” at Universities receiving federal funds, it does not create a criminal sanction for such actions, and appropriately so. Even stipulating that the behavior of DKE, along with the other incidents discussed, rises to the level of Title IX sexual harassment, the fact remains that even grossly offensive speech is protected by the 1st Amendment. A slew of court cases from the Vietnam War era have upheld remarkably robust protections for even speech which encourages criminal behavior (often avoiding the draft). Furthermore, the Millsian perspective is likely to support such decisions. Since Mills ultimately believed that good ideas would naturally triumph over bad ones, thus advancing society as a whole, he would likely argue that criminalizing speech criticizing legal or societal standards- such as ‘no means no’- would be fundamentally destructive. If people were unable to criticize legal structures, Mill proposes, those legal structures would be incapable of advancing or changing to achieve better, more just results. And, in the case of patently bad ideas like ‘no means yes, and yes means anal,’ society will rightfully reject the offending thought without any criminalization neccesary.
Part b) is a thornier question, both morally and legally. Title IX pretty clearly requires universities receiving federal funds to prevent ‘severe or pervasive’ sexual harassment; nearly all universities both private and public receive money from Federal scholarships and grants, thus placing them under Title IX’s jurisdiction (this is why even private universities may not support more men’s sports teams than women’s). One argument would be that as a private university, but one enjoined by Title IX, Yale has both the right and the responsibility to punish DKE and the perpetrators of the various other incidents. Obviously, private institutions are not prohibited from restricting speech, even severely; I do not have a 1st Amendment case if the owner of this blog was to delete my post, for example.
However, even private institutions are legally required to honor their contractual obligations to their customers- in the case of private universities, their students. Yale, along with many other private universities, has a publicly available committment to free expression:
The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable. Above all, every member of the university has an obligation to permit free expression in the university. No member has a right to prevent such expression. Every official of the university, moreover, has a special obligation to foster free expression and to ensure that it is not obstructed… We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.