Steven Nelson of The Daily Caller is the latest commentator to bring attention to the serious free speech concerns presented by the recently proposed Tyler Clementi Higher Education Anti-Harassment Act. We’ve had plenty to say about the flawed federal bill in recent weeks, as have others, so it’s nice to see others join the discussion on this important matter.
The bill, introduced in Congress last month by Senator Frank Lautenberg and Representative Rush Holt, would amend the Higher Education Act and require federally funded colleges and universities to have policies in place to prevent and address peer harassment and bullying, including cyberbullying. If that seems like a strange thing to put into federal law, it is—because universities are already required under federal law to have harassment policies and procedures in place, making the proposed law highly redundant.
Moreover, as we explained in our press release in response to the bill’s introduction, this new law would mandate a flawed definition of peer harassment that would contravene established Supreme Court precedent and place university students’ freedom of expression in peril. The bill’s vague standard for harassment ignores that, 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." The bill removes the requirement that the behavior in question be objectively offensive, meaning that those who wish to censor opinions or expression they don’t like wouldn’t be held to a "reasonable person" standard. The bill also fails to define what constitutes a "hostile or abusive" environment, leaving too much discretion in the hands of those administrators who would implement and enforce the bill’s requirements.
Thus, it’s good that the bill continues to undergo public scrutiny in the weeks following its introduction in Congress. Nelson, writing for the Daily Caller, first notes that the bill "may not be fast-tracked for a vote during the lame duck session of Congress," which he rightly characterizes as "a relief to free speech advocates." Nelson then gets a take on the free speech infirmities of the bill from FIRE’s Will Creeley:
Will Creeley, FIRE’s director of legal and public advocacy, told The Daily Caller that he believes that aspects of the act "threaten free speech on campus and are likely to be found unconstitutional if challenged in court."
Creeley explained that failure to define behavior that creates a "hostile or abusive educational environment" establishes a vague standard that would likely be abused by college administrators.
"Unconstitutional definitions of ‘harassment’ are the most commonly abused rationale justifying censorship," Creeley said, noting that a similar policy was applied "to a student magazine at Tufts University that published true if unflattering facts about Islam."
Indeed, the Tufts University case, which we highlighted in our press release, is one of the best examples of what can (and often does) go wrong when universities have doctrinally flawed harassment policies on the books and enforce their policies against obviously protected expression. Tufts provides just one of many cautionary tales against expanding harassment rationales in precisely the way the proposed federal bill does.
Next, Nelson cites the analysis of Jimmy LaSalvia of GOProud, "an organization of gay conservatives." LaSalvia weighs in with the opinion that the proposed bill’s impact would not amount to much:
"It would require that colleges and universities receiving federal funds have the same policies as Rutgers did when the Tyler Clementi tragedy occurred," says LaSalvia. "I hope that Congress deals with the pressing matters facing the nation before dealing with this."
LaSalvia continued, saying, "[T]his is a very serious issue that should be taken seriously, but the United States Congress isn’t the place to deal with this issue."
Again, the redundancy. I applaud LaSalvia for his spot-on analysis; instead of proposing new laws named after people recently in the news—even someone whose life ended in tragedy, as Tyler Clementi’s certainly did—we should be counseling universities about how they can prevent such tragedies from occurring while balancing their obligations to uphold students’ freedom of speech. As Will said, quoted in the Daily Caller article,
"[S]imply 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."
Exactly right, Will.
Our thanks to Nelson and the Daily Caller for bringing further attention to this important matter. Let us hope that the members of Congress heed the words of FIRE and other free speech advocates who understand what is wrong with this bill. FIRE will continue to monitor developments in the coming weeks and months.