A Busy 2012 for Student Rights in Washington; 2013 Promises Even More Congressional Action

December 28, 2012

Just about every year, Congress considers legislation that, if passed, would impact student rights for better or worse. The soon-to-end 112th Congress was no exception, and I was happy to join FIRE this past March to spearhead our brand-new policy program designed to defend those rights legislatively.

With the congressional session drawing to a close, here’s a recap of some of the legislation that (if passed-and it still could be!) would have altered the rights students enjoy on campus, and a brief preview of the issues that Congress is likely to pick up when it reconvenes in the new year.

One of the hot topics on the Hill this year was anti-bullying legislation. In the wake of the tragic suicide of Rutgers University student Tyler Clementi, who killed himself after his roommate secretly recorded and then streamed video of him in an intimate encounter with a man in his dorm room, Senator Frank Lautenberg (D-NJ) and Representative Rush Holt (D-NJ) introduced the “Tyler Clementi Higher Education Anti-Harassment Act of 2011” (the “Clementi Act“), which, according to Senator Lautenberg’s press release, would:

require colleges and universities that receive federal student aid to have in place a policy that prohibits harassment of students based on their actual or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, or religion.

Prohibiting peer-on peer harassment at universities is certainly a laudable goal, but legislation like the Clementi Act is nevertheless problematic. First, it’s important to note that under Titles VI and IX of the Civil Rights Act of 1964, colleges and universities accepting federal funding are already required to maintain and enforce policies prohibiting precisely the kind of discriminatory harassment targeted by this legislation. But more problematic than the redundancy of the legislation is that it replaces an exacting, clear, speech-protective definition of harassment with a vague and subjective one that conflicts with Supreme Court precedent.

Since 1999, colleges and universities have had the guidance of the Supreme Court’s decision in Davis v. Monroe County Board of Education, in which the Court held that peer-on-peer hostile environment harassment was 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.” This precise definition of harassment allows for an appropriate balance between speech that is protected by the First Amendment and harassment, which is not protected. The definition of harassment provided in the Clementi Act, on the other hand, fails to strike that balance by omitting the requirement that the expression in question be “objectively offensive,” creating a situation where the most sensitive student on campus would be the one to determine what speech is and is not protected. In 2012, neither Clementi bill made it out of committee.

The Clementi Act wasn’t the only legislation addressing bullying considered in Congress this year. Five pieces of anti-bullying legislation were proposed in the House of Representatives, and one was proposed in the Senate. Although it’s important to note that many of these bills applied only to K-12 schools, legislation for addressing issues in the college context often directly borrows language from similar bills that focus on primary education. Like the Clementi Act, these bills failed to provide definitions of bullying or harassment that comported with the First Amendment, and none of the bills advanced out of committee in the 2012 session. FIRE believes strongly that any anti-bullying legislation must adopt the Supreme Court’s definition of peer-on-peer harassment in its entirety.

Anti-bullying bills were not the only acts potentially affecting student rights introduced in the 112th Congress. Legislation regarding the due process rights of students accused of sexual misconduct on campus also garnered congressional attention. Senator Robert Casey (D-PA) kicked things off by introducing the Campus Sexual Violence Elimination Act (the “Campus SaVE Act“). In its original form, this act would have required colleges and universities that accept federal funds to adopt our judiciary’s lowest burden of proof, the preponderance of the evidence standard, when adjudicating accusations of sexual misconduct on campus. Under that standard of proof, a student could be held responsible for sexual misconduct and disciplined if the fact-finder concluded that the accusations were a mere 50.01% likely to be true. This low burden of proof is particularly ill-suited for campus judiciaries, which routinely lack the meaningful due process protections that accompany the preponderance standard when it is used by courts.

Campus SaVE also would have subjected even those students exonerated under that low burden of proof to additional rounds of accusations by granting both the accuser and the accused the right to appeal a disciplinary finding-a threat to fundamental fairness similar to that prohibited in criminal hearings by the Bill of Rights’ bar against “double jeopardy.”

The Campus SaVE Act was rolled into the Senate version of the Violence Against Women Act  (VAWA) Reauthorization, making it far more likely to pass. (FIRE takes no position on the vast majority of VAWA, because most of it does not concern student rights.) Even at this late date, the VAWA Reauthorization is still pending in Congress. However, Senators Patrick Leahy (D-VT) and Robert Casey (D-PA) thankfully addressed FIRE’s concerns about the preponderance mandate by altering the language included in VAWA to simply require that proceedings in such cases be “prompt, fair, and impartial”-as justice demands. Now, the only provision threatening student rights in the Senate version of VAWA is the “double jeopardy” provision. The VAWA Reauthorization passed by the House of Representatives also originally contained the provisions in the Campus SaVE Act, but both of the troublesome provisions were removed in the Committee on the Judiciary. To date, neither House has taken the other’s bill into conference for consideration, and the fate of the VAWA Reauthorization remains uncertain.

Regardless of what happens in the closing days of this congressional session, it is likely that issues like bullying, harassment, and student due process will continue to remain on the congressional agenda. The 113th Congress will also likely consider legislation to reauthorize the Higher Education Act, which is set to expire, as well as the Student Right to Know Before You Go Act. One thing is certain: FIRE will continue to monitor the Hill and work closely with both parties to communicate the potential impact that legislation would have on campuses across the country.

Cases:  National: Violence Against Women Act Reauthorization