April 3 2017
Be careful what you write about Socrates.
That may be one takeaway in an unusual lawsuit involving the outcome of a rape accusation at Yale.
There are two important aspects of the suit--Doe v. Yale--which Peter Berkowitz analyzes in today's Wall Street Journal.
The first involves a novel take on gender discrimination. The second is Socrates.
In 2014 Doe was found by the university to have engaged in sexual intercourse with a woman who had not consented. Doe claims in the lawsuit that the woman not only consented but harassed him.
The lawsuit further argues that Doe did not get a fair hearing because the university did not give him a chance to defend himself on account his being a male student.
This case is unusual in several respects. Doe advances one relatively new and one completely novel legal theory. The relatively new one revolves around Title IX, the 1972 federal law that provides that “no person” may be discriminated against based on sex in educational programs that receive federal assistance.
In April 2011, the Education Department’s Office for Civil Rights issued a “Dear Colleague” letter declaring that Title IX imposed a duty on colleges and universities receiving federal funding—as virtually all do—to investigate, prosecute and adjudicate sexual-assault allegations and impose punishments where appropriate. The letter also directed schools to reduce due-process protections for the accused, typically men.
Doe insists that Title IX must protect men as well as women. In punishing him for sexual assault on the basis of allegations that were either unfounded or refuted by facts to which both sides of the dispute agreed, the lawsuit argues, Yale discriminated against him on the basis of his sex in violation of Title IX.
But the claim of gender discrimination against a male student under Title IX isn't the only unusual aspect of the lawsuit. Free speech gets into the mix because of a paper Doe previously had written on Socrates:
This case also involves free expression because it began, Doe alleges, with Yale’s draconian regulation of his speech. According to his lawsuit, in late 2013 a female philosophy teaching assistant filed a complaint with the university’s Title IX office about a short paper Doe had written. In the context of Socrates ’ account in Plato’s “Republic” of the tripartite soul, the paper argued that rape was an irrational act in which the soul’s appetitive and spirited parts overwhelm reason, which by right rules.
According to the lawsuit, Pamela Schirmeister, Title IX coordinator and an associate dean in the Graduate School of Arts and Sciences, summoned Doe to her office and told him his rape example was “unnecessarily provocative.” She ordered him to have no contact with the teaching assistant and directed him to attend sensitivity training at the university’s mental-health center. She also informed him that he had become a “person of interest” to Yale, which meant that the university had to intervene to ensure he “was not a perpetrator himself,” in the lawsuit’s words. A few months later, the same Title IX office initiated the sexual-assault investigation against him.
Through a spokeswoman, Yale described the lawsuit as “legally baseless and factually inaccurate” but declined on confidentiality grounds to address any specific factual allegations.
If the lawsuit’s account is accurate, Yale has reached a new low in the annals of campus policing of speech. Surely no female student would incur criticism, much less censorship or punishment, for providing weighty philosophical authority in support of the proposition that rape is wrong.
If Doe’s story is true, Yale is no longer satisfied in enforcing correct opinions. To utter the correct opinion, Yale also demands that you be the correct sex. Far from protecting the right to “discuss the unmentionable” in accordance with the Woodward Report, Yale is stretching the boundaries of censorship by abridging the right to discuss even the uncontroversial.
The Woodward Report is a 1974 document that affirms the paramount importance of free speech at Yale.