WASHINGTON, January 6, 2012—In an open letter sent today, the Foundation for Individual Rights in Education (FIRE) and ten other organizations urge the Department of Education’s Office for Civil Rights (OCR) to defend free speech on campus by ending the lingering confusion surrounding the definition of student harassment.
“Since the 1980s, universities have relied on broad, shockingly unconstitutional definitions of ‘harassment’ to justify generations of campus speech codes and countless punishments of students for speech clearly protected under the First Amendment,” said FIRE President Greg Lukianoff. “Joined by a broad coalition, FIRE is asking OCR to put an end to this confusion so that necessary bans on real harassment don’t continue to be an excuse for illiberal campus speech codes and punishments.”
While the last two decades have provided a consistent string of First Amendment defeats for unconstitutional harassment codes in court, restrictions on student speech continue to be enforced by universities nationwide. In response, the letter’s signatories ask OCR to publicly affirm that harassment means no more and no less than the speech-protective standard for student harassment announced by the Supreme Court in a 1999 decision.
FIRE is joined in signing today’s letter by Accuracy in Academia, the Alliance Defense Fund Center for Academic Freedom, the American Booksellers Foundation for Free Expression, the American Council of Trustees and Alumni, Feminists for Free Expression, the Heartland Institute, the National Association of Scholars, the National Coalition Against Censorship, the Tully Center for Free Speech at Syracuse University, and the Woodhull Sexual Freedom Alliance. The open letter’s call for clarity is echoed in an op-ed by Lukianoff published today in The Washington Post.
The Office for Civil Rights is responsible for enforcing federal anti-discrimination laws on campus. Previous OCR guidance made clear that these statutory obligations in no way require colleges to maintain policies that violate student First Amendment rights. However, in recent initiatives concerning bullying and sexual harassment, OCR has shied away from explicitly safeguarding First Amendment rights.
In the absence of clarity from OCR, colleges have continued to enforce overly broad and confusingly vague definitions of campus harassment. As the open letter notes, Jackson State University in Mississippi, for example, defines harassment as “verbally abusive language by any person on University-owned or controlled property”—a policy that bans simply calling a person or idea “stupid.” Marshall University in West Virginia does the same by maintaining a harassment policy banning expression that causes or is intended to cause “mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment.” These restrictions—and many similar policies in force at institutions across the country—prohibit a vast amount of speech protected by the First Amendment and in common use by nearly every American.
Today’s open letter and op-ed ask OCR to endorse the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education (1999). In Davis, the Court defined student-on-student harassment as targeted discriminatory conduct which 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 carefully crafted standard strikes an appropriate balance between prohibiting harassing behavior and protecting free expression on campus. As the open letter states: “Under the Davis standard, heated discussion is acceptable, but the truly harassing behavior that federal anti-discrimination laws are intended to prohibit is not.” The letter’s signatories call on OCR to “recognize Davis as the controlling standard for student-on-student harassment in the educational context” and to mandate that colleges adopt no more and no less than the Davis standard to be deemed compliant with federal law.
“By simply following the Supreme Court’s guidance, the OCR would assure that serious harassment is punished on campus while free speech is robustly protected,” writes Lukianoff today in The Washington Post. “In one move, OCR could rid campuses of a substantial portion of all speech codes, while protecting institutions from losing still more First Amendment lawsuits.”
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. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.
Greg Lukianoff, President, FIRE: 215-717-3473; firstname.lastname@example.org