PHILADELPHIA —An "anti-bullying" bill introduced in Congress gravely threatens free speech on America's college campuses. Despite the bill's admirable intention of preventing future tragedies, the Foundation for Individual Rights in Education (FIRE) has determined that the bill is at odds with the Supreme Court's carefully crafted definition of harassment and would require colleges to violate the First Amendment.
"Tyler Clementi was subjected to an unconscionable violation of privacy, but that conduct was already criminal and prohibited by every college in America," FIRE President Greg Lukianoff said. "For decades, colleges have used vague, broad harassment codes to silence even the most innocuous speech on campus. The proposed law requires universities to police even more student speech under a hopelessly vague standard that will be a disaster for open debate and discourse on campus. And all this in response to student behavior that was already illegal."
After Senator Frank Lautenberg and Representative Rush Holt introduced the "Tyler Clementi Higher Education Anti-Harassment Act," Senator Lautenberg declared that "it is time for our colleges to put policies on the books that would protect students from harassment." But such policies are already in place. For decades, colleges that receive federal funding have been required to maintain policies that address discriminatory harassment under Titles VI and IX of the Civil Rights Act of 1964.
The bill, which would amend the Higher Education Act, flies in the face of that very law. When Congress reauthorized the Act in 2008, it added a "sense of Congress" provision noting that "an institution of higher education should facilitate the free and open exchange of ideas."
In contrast, the bill redefines harassment in a manner that is at odds with the Supreme Court's exacting definition of student-on-student harassment, which successfully balances the need to respond to extreme behavior with the importance of free speech on campus. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court defined student-on-student harassment as conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." This definition has been relied upon by courts for more than a decade and has been adopted by many institutions across the country, including the entire University of California system.
Flouting the Supreme Court's carefully crafted balance, the bill removes the requirement that the behavior in question be objectively offensive. The loss of this crucial "reasonable person" standard means that those most interested in silencing viewpoints they don't like will effectively determine what speech should be banned from campus. Unconstitutional definitions of "harassment" have already provided the most commonly abused rationale justifying censorship, having been applied to a student magazine at Tufts University that published true if unflattering facts about Islam, a Brandeis professor who used an epithet in order to explain its origins and condemn its use as a slur, and even a student at an Indiana college simply for publicly reading a book.
Because this bill has the potential to be a powerful tool for censorship, it would likely be ruled unconstitutional were it to become law. Indeed, since 1989 there have been at least sixteen successful challenges to campus codes that included similarly broad and vague harassment provisions. Every one of those lawsuits has resulted in the challenged policy either being declared unconstitutional or revised as part of an out-of-court settlement. If passed, the bill is likely to violate students' rights while leading colleges into expensive, embarrassing, and unsuccessful litigation.
"What happened to Tyler Clementi was already illegal. This bill cannot prevent future students from breaking the law, but it surely will provide students and administrators with new tools to punish views or expression they simply dislike. FIRE's experience demonstrates that when speech is not unambiguously protected, censorship and punishment of unpopular views follows," Lukianoff said.
The bill also fails to define what constitutes a "hostile or abusive" educational environment, leaving that determination to college administrators. Unfortunately, FIRE's extensive experience defending student speech demonstrates that college administrators are often incapable of enforcing unclear policies governing student speech either fairly or rationally. FIRE's case archive provides hundreds of examples of students and faculty members who have faced censorship, investigation, or punishment for parody, satire, speaking out against campus policies or public figures, and discussing important issues facing our society through protest and even through art.
Those concerned about speech rights on the Internet also have great reason to worry, as the bill requires university harassment policies to cover behavior that occurs online or off campus—anywhere in the world. In practice, this requirement is likely to compel universities to monitor student behavior in unprecedented ways—including close and comprehensive monitoring of social networking sites like Facebook and Twitter—in order to ward off potential lawsuits.
"For over a decade, FIRE has been successfully fighting the illiberal influence of speech codes at our nation's colleges and universities. But this bill threatens the significant progress made by FIRE and those students, faculty, alumni, and citizens that share our commitment to free speech on campus," said Will Creeley, FIRE's Director of Legal and Public Advocacy. "We must not let tragedy serve as a justification for rolling back the First Amendment."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities.