Yale: The Power of Speech by David Cole | NYR Daily | The New York Review of Books
by David Cole (Georgetown Law School)
***The First Amendment does not apply to a private institution like Yale University. But the same principles of free expression animate the doctrine of academic freedom. And while that entails requiring a certain level of decorum in classroom discussions, in order to make possible civil discourse among people who hold very different beliefs, it does not countenance punishing a professor (or student) for sending a public email questioning administration policy, much less for espousing bedrock principles of free expression. That Ms. Christakis was an associate master of the college, in charge of a residential community, does not diminish her right to express such opinions, and punishing the Christakises by removing them from their positions would send an unacceptable message of intolerance.
It is also a mistake to seek to suppress speech in the name of equality. Free speech and association are tools for the minority, whoever they are at a given moment—as the Yale students themselves have admirably demonstrated. The First Amendment empowers them to express their views, to dissent from majority policies, and to organize politically to advance their interests, just as, before them, it protected Martin Luther King Jr., Malcolm X, and other civil rights activists. The last thing a minority group should seek is the suppression of free expression.
Focusing on offensive speech also distracts from the more significant issues of racial injustice that persist more than sixty years after Brown v. Board of Education declared segregation unconstitutional—and that remain the Yale students’ principal concerns. African-Americans are disproportionately the victims of violence, both from the police and from their fellow citizens. They have far fewer economic and educational opportunities, and virtually the only American institutions in which they are over- rather than under-represented are prisons and the military. They have less wealth and shorter life expectancy than whites. And countless studies have shown that they are the victims of the implicit, often unconscious biases of doctors, employers, teachers, police, and probably everyone else they encounter. These are the pressing racial problems of our time—not Erika Christakis’s email. As media reactions illustrate there is a real risk that by going after the Christakises the students’ very legitimate complaints about much more serious problems will be drowned out.
Yale students are right to complain that their critics have failed to look beyond the viral video. If we want to understand the controversy at Yale, or at any of the many colleges that are experiencing similar protests, we must take seriously the deep and lasting wounds that continue to afflict the African-American community. We must demand, with the students, more diversity in faculty and staff, greater resources for minority students, and greater sensitivity to the challenges of building an integrated community of mutual respect. If President Salovey’s promises of significant change are realized, the students will have won—for the good of the whole university. But the struggle is not over. Responding to the challenges of diversity in a racially divided world is a full-time job. And continued activism will be needed to keep the administration to its promises. Demands to punish Erika Christakis because her genuine expression of opinion was deemed offensive undermine the cause. The students would do well to abandon that request and focus their and our attention on the more systemic problems of equal justice that continue to plague Yale, and the nation.