‘Bullying Free Speech': FIRE Chairman Warns of Threat to Student Speech Posed by Federal Anti-Bullying Legislation

By January 7, 2011

FIRE Chairman and Co-founder Harvey Silverglate has a new article on Forbes.com discussing the threat to student speech posed by the "Tyler Clementi Higher Education Anti-Harassment Act," introduced in Congress by Senator Frank Lautenberg and Representative Rush Holt last November. Harvey’s warnings about how the bill would erode freedom of expression on campus are timely and important; the bill’s authors say that they plan to reintroduce the legislation in the new Congress soon.

In his article, entitled "Bullying Free Speech," Harvey argues that the proposed legislation is "deeply flawed," pointing out that it introduces new restrictions on student expression that are "redundant, frustratingly vague, and dangerously broad." Harvey writes:

What the bill’s authors fail to acknowledge is that federal laws already require colleges to prohibit the kind of harassing behavior that constitutes serious bullying. Announcing the bill, Senator Lautenberg stated that bullying has "damaged too many young adults, and it is time for our colleges to put policies on the books that would protect students from harassment." Yet under Title VI and Title IX of the Civil Rights Act of 1964, federally funded colleges and universitiesthe overwhelming majority of public and private institutions of higher learningalready must deal severely with discriminatory harassment.

Representative Holt has contended that the legislation is necessary because Titles VI and IX bar discrimination based on race, color, national origin, and gender, but do not include a similar ban on discrimination based on sexual orientation. Harvey addresses this argument head-on:

[C]ourts have already held that discrimination on the basis of actual or perceived sexual orientation can count as gender-based harassment under Title IX, and that same-sex discrimination is just as prohibited as male-on-female or female-on-male discrimination. The Department of Education has agreed. As a result, this legislation is redundant, at best.

Not only would this legislation be redundant, Harvey writes, it would also replace the Supreme Court’s precise, exacting standard for peer-on-peer harassment in the educational setting with a far more confused, uncertain definition:

In Davis v. Monroe County Board of Education (1999), the Supreme Court struck a necessary balance between merely unpleasant speech and truly harassing verbal behavior that transcends simple disapproval or disagreement. The high court defined student-on-student harassment as conduct "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."

By contrast, the proposed legislation defines harassment as "acts of verbal, nonverbal, or physical aggression, intimidation, or hostility" that are "sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment."

These two formulations may at first blush seem similar, but in the context of campus life they are worlds apart. Gone from the bill’s formulation is the "objectively offensive" threshold from the Supreme Court’s Davis definition, empowering, in effect, the most easily offended to determine what speech qualifies as harassment. Nor is any definition of what constitutes a "hostile or abusive educational environment" even attempted, leaving college administrators as the sole judges of whether speech is sufficiently "hostile" or "abusive" to warrant punishment. Administrators invariably will interpret these phrases over-broadly in order to avert trouble on their watch.

Harvey’s article makes other strong arguments against the legislation, so it’s tempting to quote nearly the whole thing herebut I’ll let you read the rest yourselves. I had the privilege of contributing to the piece, and I think it’s an eloquent, accessible explanation of the problems with the legislation. I urge you to check it out.

Cases: Federal Anti-Harassment Bill Threatens First Amendment Rights on Campus