Judge fears Yale has forgotten commitment to free expression

A federal judge with ties to Yale University is deeply concerned about developments in recent years that “have challenged Yale’s commitment to freedom of expression.”

In an essay for the Yale Law & Public Policy Review, U.S. Circuit Judge Jose A. Cabranes (who previously served as Yale’s first general counsel) asserts that the recent decision by Encounter Books to republish hard copies of the Woodward Report, a document affirming Yale’s commitment to freedom of expression that was partially adopted as official school policy in 1975, underscores the degree to which free speech and due process are currently endangered at the Ivy League institution.

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Cabranes says it is “bad news” that Encounter feels the need to reprint the report today, calling it an indication that the support for free expression articulated in the Woodward Report has faded in the face of calls for trigger warnings and safe spaces, shaming of invited guest speakers who hold “distasteful” views, adoption of bias reporting systems, and removal of due process from sexual assault investigations.

He also expresses concern that “Yale, along with other universities, has ostentatiously declared a commitment to ‘civility,’” pointing out that while the concept sounds innocuous enough on the surface, “problems arise when we are told that ‘uncivil’ speech has turned the campus, or parts of the campus, into a ‘hostile environment’—and, more dangerously still, when we are told that university officials have a duty to make campus ‘safe’ again by suppressing alleged incivility.”

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“We can toss our hands up and say that the malaise so palpably evident at Yale is simply part of larger cultural phenomena, national and international,” Cabranes remarks, but argues that “those who care about Yale will also recall that Yale is supposed to lead by example, not to be swept along by a national tide.”

Indeed, Cabranes frets that the Woodward Report has “faded from view” not just metaphorically, but literally as well, pointing out that the seminal document “is accorded no more prominence on Yale’s website than any other report or regulation,” receiving as much attention as computing and field trip policies.

While he acknowledges that part of the reason for this has to do with efforts to “go green” by converting physical documents to digital versions, Cabranes contends that the conclusions drawn from the Woodward Committee are just as relevant today as they were in 1975, and that it is therefore uniquely important to make the report available in hardcopy.

“Despite repeated invocations of freedom of expression, it is clear that the current university leadership has been poorly advised on the Woodward Report’s commitment to freedom of expression in accordance with its own terms,” he states. “By its actions, Yale has effectively disavowed the Woodward Report’s fundamental premise that ‘[i]t may sometimes be necessary in a university for civility and mutual respect to be superseded by the need to guarantee free expression.’”

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Cabranes does not think it is too late to turn the tide of curbed speech at Yale, however, pointing out that in addition to following the lead of speech-friendly schools like the University of Chicago, Yale must also protect the “bedrock principles of freedom of expression” as well as the “historic due process rights for those accused of misconduct.”

Cabranes closes by quoting former Yale President C. Vann Woodward, who warned in 1974 that “the university is in danger of sacrificing principle to expediency,” and urges Yale not to let that happen today.

Follow the author of this article on Twitter: @amber_athey