University Speech Codes, Reborn As “Anti-Bullying” Rules?

The Foundation for Individual Rights in Education (FIRE) is out with this timely warning about the “Tyler Clementi Higher Education Anti-Harassment Act,” a bill introduced in Congress by Sen. Frank Lautenberg and Rep. Rush Holt, both New Jersey Democrats:

…the bill redefines [campus-based] 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.

As FIRE President Greg Lukianoff points out, existing law gives universities (and civil authorities) ample authority to punish the serious breach of student privacy alleged in the Clementi case. Daniel Luzer of the Washington Monthly notes that Rutgers already had in place an anti-bullying policy of the sort envisioned by the bill.

Also of concern is the Lautenberg-Holt bill’s requirement that administrators move against off-campus or online student behavior. This provision, says FIRE, in practice “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.”