Criticism of FIRE’s Stance on ‘Tyler Clementi Higher Education Anti-Harassment Act’ Misses the Mark

By November 30, 2010

Last week, FIRE issued a press release criticizing the "Tyler Clementi Higher Education Anti-Harassment Act," explaining at length that the proposed legislation’s sloppy definition of harassment would threaten speech on campus. Our press release detailed exactly how the bill’s definition of harassment contradicts and weakens the precise definition of peer-on-peer harassment in the educational context provided by the Supreme Court in the 1999 case Davis v. Monroe County Board of Educationand thus would worsen the already shocking problem of censorship on campus.

Unfortunatelybut perhaps not surprisingly, given the understandably powerful emotions driving the legislationsome have taken our criticism of the bill as evidence that FIRE is serving some sinister partisan agenda. Or, worse still, that we simply don’t care about bullying and are happy to "side with those who cause the suicides and not those who are victims of the bullying," as blogger Bridgette P. LaVictoire put it in a recent entry for Lez Get Real.  

Both charges are entirely without merit, and I’m happy to explain why. Indeed, given the potential damage to student rights, it’s important to answer these kinds of criticisms in order to keep the focus squarely on the bill.

First, the old saw about FIRE being a partisan group is as groundless now as it was back in 2007 and 2008, when FIRE President Greg Lukianoff addressed similarly baseless attempts to discredit the work we do on behalf of student rights. As such, it’s unnecessary for me to restate Greg’s definitive statements on this point once againespecially when even a very quick perusal of our case archives demonstrates conclusively that FIRE defends the rights of all students, wherever they may fall on the ideological spectrum.

As "proof" of our hidden agenda, LaVictoire charges that FIRE is "rather strongly tied to groups like the Alliance Defense Fund and the Family Research Council." But this lazy guilt-by-association dog won’t hunt. While FIRE has successfully worked with the Alliance Defense Fund to defend First Amendment rights on campus, so too have we won crucial victories with many state and regional chapters of the American Civil Liberties Union. I’m unaware of what "strong ties" we have to the Family Research Council, other than their reporting on cases we’ve handled. If that constitutes a "strong tie" in LaVictoire’s estimation, then FIRE is just as "strongly tied" to the Associated Press, The New York Times, the Los Angeles Times, the Washington Post, and the many other media outlets that have covered our work.

LaVictoire’s second argumentthat FIRE is somehow working to protect bullies at the expense of victimsis every bit as untrue, and even more disheartening. LaVictoire writes:

The Foundation for Individual Rights In Education has decided unilaterally that it is necessary to maintain harassment and discrimination against students in schools because they believe that it is alright to bully lesbians and gays.

[...]

Unfortunately, when it has come to trying to combat the damage that bullying and harassing has done in this nation, especially when directed towards lesbians and gays, it has done its best to side with those who cause the suicides and not those who are victims of the bullying.

So FIRE believes it’s okay to bully lesbians and gays? Give me a break. This is a ridiculous assertion and LaVictoire should be ashamed of her intellectual dishonesty. Given that LaVictoire does not–indeed, cannot–provide any evidence whatsoever for this smear, it is tempting to ignore it altogether. But again, given the high stakes here, it is better to directly answer this line of argument rather than have casual observers conclude that our silence indicates a tacit acknowledgment of truth.

As we’ve stated time and again here on The Torch, what happened to Tyler Clementi was a tragedy. And to be clear, FIRE does not believe that discriminatory harassment against lesbians, gays, or any other students is acceptable. It is not. Discriminatory harassment is properly excluded from First Amendment protection.

What we do believe, however, is that discriminatory harassment must be clearly and carefully defined, so as to ensure that students with dissenting or unpopular views are not silenced simply for speaking their minds. We’re concerned about the Tyler Clementi Higher Education Anti-Harassment Act because its definition of harassment is both overly broad and vague, not because it aims to prevent discriminatory harassment at all. LaVictoire must not have read our press release, which explains:

[T]he 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.

As I wrote a few weeks back:

[S]tudents engaged in bullying can already be disciplined under the carefully tailored standard the Court announced in Davis. I call the Davis standard "carefully tailored" because it strikes a delicate but necessary balance between prohibiting harassment and protecting students’ First Amendment rights. This is crucial because while public colleges are already required by law to address harassment on campus, they must also uphold the First Amendment. Thankfully, with the Davis standard, these dual obligations don’t have to be in tension-truly harassing behavior is grounds for punishment, but speech protected by the First Amendment isn’t.

Again, it’s worth repeating that colleges and universities receiving federal funding are already required to maintain policies outlawing discriminatory harassment. The students who reportedly broadcast Clementi’s encounter with another man over the Internet, both of whom already face criminal charges, would have been subject to punishment under Rutgers University’s existing harassment policies, as well. Pointing out that the bill’s definition of harassment is redundant and sloppy and will almost certainly be abused is most certainly not the same as "sid[ing] with those who cause the suicides and not those who are victims of the bullying."

Pressing on, LaVictoire writes:

[FIRE] does not actually provide anything to actually back up their assertions. They have not appeared to offer up an alternative either that would protect these individuals from being bullied. Instead, they have decided that this bill is wrong absolutely and that it should not be enacted.

Contrary to LaVictoire’s contention, our press release explains each of our objections to the proposed bill and provides evidence for each of our assertions. We say the bill’s definition of harassment is redundant, and we explain how schools are already required to maintain anti-harassment policies under Titles VI and IX. We say the bill’s definition of harassment differs from the Supreme Court’s, and we explain exactly where and how the language differs. We say the bill’s definition of harassment is likely to increase censorship on campus, and we explain how our case archives demonstrate that poorly crafted harassment policies have been repeatedly invoked to justify punishing protected expression. So what have we failed to back up?

Finally, we’ve also offered an alternative to the proposed legislation. As we’ve said many times in this space, we believe that colleges and universities should enforce the standard that the Supreme Court has already announced for peer-on-peer harassment in the educational context. Prohibiting behavior 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"–and punishing such behavior when it takes place–allows institutions to address bullying while also guaranteeing that free speech is properly respected on campus.

I very much appreciate LaVictoire’s desire to protect students from harm of the sort that Clementi suffered. But simply invoking Clementi’s name in the title of the bill does not render it worthy of passage, nor does it justify the bill’s infringements upon freedom of speech.

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