Federal Government’s Legislative and Regulatory Push Ignores Individual Rights in Zeal to Protect Students

May 6, 2011

Recent regulatory and legislative efforts from Washington demonstrate the lengths to which the federal government will go to mandate widespread cultural changes on campus. Although well-intended, this push largely ignores free speech and due process rights in its apparently single-minded focus on protecting students from sexual violence, harassment, or bullying.

A central example of this overzealousness is the federal Tyler Clementi Higher Education Anti-Harassment Act. The Act, sponsored by Senator Frank Lautenberg and Representative Rush Holt, both of New Jersey, was introduced in response to actions that already constituted a criminal offense­—the illegal videotaping and transmission of a sexual encounter involving Rutgers University student Tyler Clementiwhich subsequently led to his suicide. As reintroduced to Congress in March, the Act would require universities to promulgate highly speech-restrictive harassment and cyberbullying policies. The federal government’s misplaced desire to protect students from all emotional harmsthe same desire that inspires many unconstitutional speech codes at universitieswas ignited by the unfortunate loss of a gifted musician and promising student. However, as we have argued extensively, the new bill that bears Tyler Clementi’s name not only would intrude upon free speech rights, but also is largely redundant, vague, and subjective.

The federal government’s response to the problem of sexual violence on campus similarly exemplifies a desire to sacrifice student rights in a misguided effort to protect students. As we detailed yesterday, FIRE wrote an open letter to the Department of Education’s Office for Civil Rights (OCR) in response to OCR’s April 4, 2011, "Dear Colleague" letter outlining new requirements for universities handling complaints of sexual harassment or sexual violence. Among other problems, OCR mandated that universities employ the lax "preponderance of the evidence" standard (by which an accused student is considered guilty if the evidence presented tips just slightly in favor of the accuser), instead of the more robust "clear and convincing evidence" standard, for adjudicating student complaints of sexual harassment or assault. This standard of proof would deprive universities of the ability to give those accused of heinous criminal offenses fair process and, as a result, would undermine the certainty of the results in these campus disciplinary hearings. As with the Tyler Clementi Higher Education Anti-Harassment Act, this type of single-minded governance will ultimately harm students.

Finally, the Campus Sexual Violence Elimination (SaVE) Act, introduced in Congress by Senator Bob Casey, also requires schools to use the preponderance of the evidence standard in disciplinary hearings involving complaints of sexual violence or stalking. Attorney and author Wendy Kaminer, a member of FIRE’s Board of Advisors, highlights in The Altantic the ways in which the SaVe Act presumes the guilt of those simply accused of sexual violence and explores the myriad other problems with this piece of legislation, despite the fact that the bill was called a "no brainer" by Senator Casey’s deputy chief of staff. The Daily Caller‘s Caroline May has more reactions against the bill from civil libertarians in an article published today.

Deterring and punishing illegal activity, especially illegal activity against students trying to advance their education, is of critical importance. However, the loss of a sense of perspective by many government officials demonstrates not only a desire to protect students, but a goal of creating widespread cultural change, promoted without taking the time to examine the consequences of such heavy-handed governmental intrusion. (Interestingly, the United States is not alone here. Other countries are also resorting to extreme measures to protect the mental and physical health of students. In France, for example, the government has decided to shut down the Facebook accounts of any student found to be bullying others.) It seems that these government officials no longer sufficiently trust in alternatives, like using social stigmas to combat bullying, or creating harassment and assault awareness programs, that already exist without violating fundamental rights.

Government officials’ recent "at all costs" approach to protecting students from certain acts does not respect America’s unique traditions of robust free speech protections and rights for the accused. The latest legislative and regulatory efforts, although perhaps seeming to be necessary and appropriate to some, are ultimately misguided, wrongheaded, and harmful to the very students they seek to protect.

Cases:  U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections