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Fraternities: Disastrous for Free Speech on Campus?

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This will likely come as a surprise to no one: Fraternities consistently produce some of the least sympathetic cases for campus free speech advocates. Those of you who have followed my work over the years know that college students can and do get in trouble for remarkably tame speech, from the student who was expelled for a Facebook collage criticizing a parking garage to, more recently, a student who was not allowed to walk at his graduation because of his mild criticism of his university's bureaucracy. Fraternities, on the other hand, sometimes get in trouble for incidents like dressing in blackface and Klan robes for a Halloween party, as Tau Kappa Epsilon at the University of Louisville did in 2001. Most recently, in the fall of 2010, Yale's chapter of Delta Kappa Epsilon (DKE) apparently required pledges to march around campus chanting repugnant slogans like "My name is Jack, I'm a necrophiliac, I fuck dead women" and "No means yes, yes means anal." While Supreme Court decisions in favor of the likes of Fred Phelps and the Westboro Baptist Church demonstrate that the offensiveness of a particular expression is not a legitimate reason to ban it, the often intentionally puerile and offensive speech of fraternity members poses a real challenge to those of us who try to build grassroots support for free speech on campus. But make no mistake, the dilemmas posed by fraternity incidents like these and, more importantly, from the way fraternities choose to handle them, have ramifications far beyond the strange parallel universe of Greek life. The free speech controversies posed by fraternities -- and the responses to them -- often threaten the free speech rights of all students. This concern applies equally to public colleges, which are directly bound by the First Amendment, and to most private colleges, which are bound by their explicit promises to respect their students' freedom of expression. In my 10 years defending student rights at the Foundation for Individual Rights in Education, fraternity free speech cases have often followed this pattern:
  1. Fraternity members do something specifically intended to offend -- and, lest we ignore much of modern day comedy and satire, it is important to note we often value poking fun at sacred cows -- but the frat brothers overshoot their mark. Word gets out to the larger campus and the community erupts in calls to punish the fraternity.
  2. The fraternity members and the fraternity itself apologize, and the students throw themselves at the mercy of the college and their superiors within the frat. Often the fraternity or its national organization will launch some kind of investigation resulting in the punishment of individual members, if not the whole fraternity.
  3. Occasionally, instead of apologizing, a member of the fraternity realizes that even though the speech was offensive, it's probably protected by the First Amendment, and so he decides to stand up for himself. In that case, time and time again, his fellow members will not support him and the student ends up being both punished by the fraternity and rendered defenseless against the university.
  4. In the rare case that the entire campus chapter fraternity is united in its desire to fight for its First Amendment rights to provoke and offend, their national organization does not have their back and either pressures the fraternity to back down or punishes it outright.
One of the interesting things about this pattern is that when a fraternity does choose to stand up for its First Amendment rights, it often wins. So, why should we care about frat boys getting in trouble for saying stuff that they know to be offensive? If fraternities want to shoot themselves in the foot, that's their choice, and it doesn't have any bearing on the free speech rights of non-fraternity members, right? Wrong. The downside of this "offend, capitulate, offend, capitulate, repeat" pattern is that it provides an excuse for unconstitutional and illiberal speech codes, and other crackdowns on student speech, in general. The DKE case at Yale is perhaps the most spectacular example of this. At first, the case followed the familiar pattern: The fraternity made their pledges say obnoxious chants specifically because they knew it would offend the community, the campus predictably became angry and offended, the fraternity members apologized, the national fraternity promised an investigation and punishment, and Yale condemned the fraternity speech, but didn't express a clear interest in punishing the fraternity because it had agreed to discipline its own members. If it ended there, this would all be no big deal. Fraternities certainly have every right to punish their own members for breaking their rules or otherwise acting ungentlemanly. Furthermore, you have just as much of a free speech right to apologize for offensive speech, if you so choose, as you do to engage in it. However, the combination of the DKE case and Yale's allegedly weak action in other cases (including the serious charge that Yale did not adequately punish those found guilty of assault) angered students enough to prompt complaints to the Department of Education's Office for Civil Rights (OCR). OCR then launched an investigation of Yale, with the power to act to ensure that Yale enforces anti-discrimination laws. In fact, OCR can punish universities for their inaction on such issues by taking away all of their federal funding. At Yale, this means a potential loss of half a billion dollars per year. In the face of this huge financial threat, Yale rushed to announce that it was individually punishing students involved in the chanting incident on charges of intimidation and harassment and had suspended the campus chapter of DKE for five years. Despite all these punishments, the national DKE organization (at least for now) has chosen not to fight the ruling, although it has stressed that "Equating this behavior to illegal harassment is an unjust overreaching by an administration looking to shift campus anger away from real issues of harassment." Nor have the DKE students at Yale decided to defend their rights. The failure to fight back has bad ramifications for student free speech at colleges and universities across the country. If colleges know that they can be subjected to an onerous OCR investigation and potentially face a ruinous financial hit if they do not punish "offensive" speech on campus -- even if that speech would've been protected by the First Amendment outside university walls -- they have every incentive to overreact. And as I've seen over the years, some campus administrators hardly need an excuse to punish students who dissent, offend, or provoke, or those whom they simply dislike, so the climate for free speech on campus may have just become far worse in one fell swoop. So, DKE members, it is not too late to change your mind. By all means apologize for your members' behavior as your conscience dictates, but push back on the punishments that are strictly based on offensive speech. Yes, the university may still punish you for behavior that actually breaks Yale's rules, or it may redefine its charges as hazing, rather than harassment, and perhaps retry the case, but this case has become much bigger than you. It's true that your members have provided the fraternity with an extremely unsympathetic set of facts with which to argue your case, but keep in mind that the principles at stake are the same ones that allow students to question authority and ask the kind of provocative questions that need to be asked on a college campus.