‘Inside Higher Ed’ Quotes Will on Department of Education’s New Anti-Discrimination Guidelines

October 27, 2010

Yesterday, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a "Dear Colleague" letter to colleges and universities across the country reminding them of their obligations under federal regulations to remedy and prevent student-on-student harassment in the educational setting. As Inside Higher Ed reports today, OCR’s letter instructs colleges that some forms of bullying that occur on campuses go beyond violating campus codes of conduct and other institutional policy; they fall under schools’ legal duty pursuant to federal law to address peer harassment.

The issues of bullying and peer harassment at universities have been in the news quite a bit lately, as we’ve covered on The Torch. In the wake of the sad story of Rutgers University student Tyler Clementi, Senator Frank Lautenberg of New Jersey has proposed new federal legislation addressing universities’ obligations to prevent harassment, including cyberbullying. As I’ve written here, such initiatives are in fact redundant with universities’ already-existing obligations under the law, and, worse still, endanger the freedom of speech to which students are entitled on a college campus.

Likewise, FIRE’s Will Creeley weighs in to Inside Higher Ed about the need to uphold students’ free speech rights under the First Amendment when universities work to meet their obligations under harassment law. Given the almost routine abuse of harassment codes that FIRE sees by colleges to restrict and punish all kinds of protected expression, Will’s words are timely, to say the least.

Inside Higher Ed‘s Dan Berrett writes:

Others saw in the letter an even more unwelcome blending of assumptions of the roles played by K-12 and higher education institutions. The letter urges a paternalistic stance that is inappropriate for colleges and universities and would impinge on the First Amendment right of free speech, wrote Will Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education, in Philadelphia.

"At an institution of higher education, students may range in age from 17 to 67 and beyond, and must be treated like the adults they are," Creeley wrote in an e-mail. "Our nation’s colleges and universities have a legal duty to respond to instances of true harassment. They must also respect the expressive rights of their students. These dual obligations to protect free speech and prosecute actual harassment need not be in tension."


Colleges and universities must always remember that they have a dual obligation in these matters. Just as they must respond to instances of true harassment and prevent such harassment from occurring again, they are legally required to respect students’ freedom of expression at all times.

As we’ve said many times before, the answer to these balancing interests has been provided by the Supreme Court: In the case of Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Court held that peer harassment in the educational context is limited to only that 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."

In a 2003 "Dear Colleague" letter, OCR recognized a slightly less speech-protective version of the Davis standard, observing that harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." Yesterday’s letter from OCR reaffirms this standard, recognizes that some instances of alleged harassment implicate the First Amendment, and explicitly directs administrators to OCR’s 2003 letter for guidance in understanding the relationship between free expression and hostile environment harassment. 

So while yesterday’s OCR letter strongly reminds institutions of their obligations under harassment law, the First Amendment isn’t going anywhere, either. And if it is FIRE’s job to keep reminding schools of that, we will do so. We ask that colleges and universities heed the Supreme Court’s guidance and adopt policies that track the precise harassment standard announced in Davis. Only by doing so will schools successfully balance the rights of all students and ensure that the college campus remains, in the words of Justice William Brennan, "peculiarly the ‘marketplace of ideas.’"