Bullying Free Speech

By January 6, 2011

Few American institutions best the Congress in the destructive practice of turning a human tragedy into an assault on liberty. Exhibit A is the ongoing effort to ratchet up anti-bullying measures on campus—with potentially dire consequences for campus free speech.

Last fall, Rutgers University freshman Tyler Clementi took his life after discovering that two students had surreptitiously spied on his dorm room sexual encounter with a male, streaming video of it online. In response, Sen. Frank Lautenberg (D., N.J.) and Rep. Rush Holt (D., N.J.) have authored a bill—dubbed “The Tyler Clementi Higher Education Anti-Harassment Act”—that aims to prevent future incidents of collegiate “bullying” by dramatically expanding the scope of existing anti-harassment regulations. First introduced in November during the last Congress’ lame-duck session, Representative Holt stated this week that the bill will be reintroduced in the new Congress.

Even if well-intentioned, this proposed legislation is deeply flawed: Its restrictions are redundant, frustratingly vague, and dangerously broad. If enacted, the law would further erode college students’ speech rights, a foundational tenet of liberal education.

The supreme irony is that, under state and federal laws, genuine bullying is already a violation. The extreme conduct that precipitated Clementi’s suicide— broadcasting a fellow student’s private sexual encounters—is a felony in New Jersey, as in many other states. Both students, one of whom was Clementi’s roommate, now face state charges of felonious invasion of privacy.

What the bill’s authors fail to acknowledge is that federal laws already require colleges to prohibit the kind of harassing behavior that constitutes serious bullying. Announcing the bill, Senator Lautenberg stated that bullying has “damaged too many young adults, and it is time for our colleges to put policies on the books that would protect students from harassment.” Yet under Title VI and Title IX of the Civil Rights Act of 1964, federally funded colleges and universities—the overwhelming majority of public and private institutions of higher learning—already must deal severely with discriminatory harassment.Rush D. Holt, Jr.

Representative Holt has argued that the bill is necessary because federal anti-harassment laws ban harassment on the basis of race, color, national origin, and gender, but not sexual orientation. While such an expansion could be made by adding a single phrase to existing law, this proposal goes much further. What’s more, courts have already held that discrimination on the basis of actual or perceived sexual orientation can count as gender-based harassment under Title IX, and that same-sex discrimination is just as prohibited as male-on-female or female-on-male discrimination. The Department of Education has agreed. As a result, this legislation is redundant, at best.

Redundancy, unfortunately common in federal legislation, is pernicious enough on its own. But this bill would replace a comparatively precise definition of harassment with a vague one, inviting punishment of speech protected by the First Amendment. Since most students would not risk their college careers, much less their freedom, on the altar of free expression, they will inevitably avoid hot button and taboo subjects during the very years when students’ urge to explore the world of ideas is at its apex.

In Davis v. Monroe County Board of Education (1999), the Supreme Court struck a necessary balance between merely unpleasant speech and truly harassing verbal behavior that transcends simple disapproval or disagreement. The high court defined student-on-student harassment as 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.”

By contrast, the proposed legislation defines harassment as “acts of verbal, nonverbal, or physical aggression, intimidation, or hostility” that are “sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment.”

These two formulations may at first blush seem similar, but in the context of campus life they are worlds apart. Gone from the bill’s formulation is the “objectively offensive” threshold from the Supreme Court’s Davis definition, empowering, in effect, the most easily offended to determine what speech qualifies as harassment. Nor is any definition of what constitutes a “hostile or abusive educational environment” even attempted, leaving college administrators as the sole judges of whether speech is sufficiently “hostile” or “abusive” to warrant punishment. Administrators invariably will interpret these phrases over-broadly in order to avert trouble on their watch.

Such determinations are far beyond the pay grade of most academic administrators, as the ever-expanding case archives of the Foundation for Individual Rights in Education (FIRE)—a nonprofit, nonpartisan watchdog for civil liberties on campus—make clear. FIRE has learned in its decade of experience that charges of “harassment” are already easily the most abused tool to punish speech on campus. This occurs even under the current, considerably narrower definitions than those contained in the proposed legislation.

Consider the student-employee from a public college in Indiana who was found guilty in 2007 of racial harassment for merely reading, during his work breaks, the book Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. Or the entire staff of a conservative student newspaper at Tufts University, found guilty of harassment for publishing an article containing true but unflattering facts about Islam that same year. Under the proposed bill, these types of crackdowns on protected speech will mushroom, teaching students precisely the wrong lesson about free speech in a modern democracy.

Emotion and anger are understandable responses to tragedies like the one that has befallen the Clementi and Rutgers families. But lawmakers have a duty to determine whether a proposed legislative remedy would have prevented the heartache more effectively than existing laws, or if new legislation will do little more than restrict legitimate student expression. This balancing test, applied to the Lautenberg and Holt legislation, makes a “no” vote the only acceptable one in a free nation.

Will Creeley, FIRE’s Director of Legal and Public Advocacy, contributed to this piece.