In a recent piece at the Washington Post, Eugene Volokh recounted a briefing at the U.S. Commission on Civil Rights. The exchange was enlightening.

U.S. Commission on Civil Rights member, on university speech codes

I testified last week at a U.S. Commission on Civil Rights briefing on sexual harassment law in education, and I found these comments from Commissioner Michael Yaki — a former senior adviser to Rep. Nancy Pelosi, and a former member of the San Francisco Board of Supervisors — to be particularly interesting. The briefing discussed both the handling of sexual assault claims and campus speech codes, with some of the discussion of the latter going beyond just sex and covering material that’s offensive based on race and other characteristics. Here’s an excerpt from the tentative transcript, which matches my recollection of the comments; Commissioner Yaki is questioning Greg Lukianoff of the Foundation for Individual Rights in Education:

I guess I’m having some, a topic that I’ve been following for a number of years and it stems in part from the time that Mr. Marcus was our staff director, has to do with hate speech, hate crimes against groups of individuals on campus.

And it seems to me that there are ways that you can create a very apprehensive coordinate [possible transcription error -EV] of sexual harassment on a campus, but you [Greg Lukianoff -EV] probably would not find any prohibition by a university on that type of conduct to pass muster. Would that be correct? …

What about a slave auction at a fraternity engagement or a day where another group decides that they’re going to celebrate Latino culture by making everyone dress as janitors and mop floors or a situation involving women, have them as a ritual parade around in skimpy clothing and turn in some show or something.

I mean where do you think you can, that the university can’t deal with ensuring the route it has environment that is not oppressive or hostile because obviously a campus, especially certain types of campuses where there’s a lot of, where, that are geographically compact, that have a lot of working and living situations in a close area to create a campus atmosphere.

I mean doesn’t the campus only ensure itself being much more, being somewhat more closed than just sort of random person on the street where there’s shouting at someone?

Doesn’t that gravitate toward having greater ability to proscribe certain types of conduct that have the ability to escalate beyond what anyone would consider to be reasonable or acceptable?

It thus appears to me that Commissioner Yaki is coming out in support of speech codes that ban speech and symbolic expression that is perceived as conveying a racist or sexist message — despite past court decisions striking down such restrictions, including specifically in the context of racially and sexually offensive fraternity activities (see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993)).