On Friday, I blogged about Rutgers University’s bias investigation of the student satire publication The Medium for jokingly attributing a fake article praising Adolf Hitler to another student. As we made clear in the letter we sent Rutgers, punishing the protected expression of The Medium—or even allowing the impression to take hold that such expression was punishable—would be an impermissible violation of the paper’s First Amendment rights.
Hardly had my entry gone live on our website, however, when FIRE received a response from Rutgers Assistant General Counsel Sarah Luke, responding in relevant part:
The university very scrupulously addresses First Amendment issues like the one you have highlighted, and students are not punished for exercising their right to free speech, including speech in student publications.
After chilling free speech at Rutgers for the past three weeks, this is a welcome affirmation of the free speech rights of The Medium, and of all student media at Rutgers. Luke then continues:
Instead, Rutgers is working hard with all the various members of the university community to promote a robust exchange of divergent ideas and to safeguard the right of Rutgers students to enjoy an educational environment free from unlawful discrimination and harassment.
Indeed, as a public university bound by the First Amendment and federal civil rights statutes, Rutgers University is obligated to accomplish both these ends. Fortunately, the Supreme Court’s controlling ruling on peer harassment in the educational setting provides clear guidance on how Rutgers can do so. As we wrote in our April 20 letter:
[T]he parody … fails to meet the Supreme Court’s carefully crafted description of student-on-student hostile environment harassment in the educational context in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). That is, in order for student behavior to be actionable harassment, it must be conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "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." No more and no less than this standard is required to protect student expression while meeting universities’ obligations to address true harassment.
Indeed, the Davis standard provides just the recipe for meeting the university’s dual obligations, and hopefully FIRE and the Rutgers student community can take Rutgers’ response as a sign that it will refrain from chilling expression going forward. We appreciate Rutgers’ affirmation of the First Amendment rights of The Medium and of all Rutgers student publications.