The Huffington Post reported last week that Senator Patty Murray of Washington will reintroduce the Tyler Clementi Higher Education Anti-Harassment Act after learning of harassment suffered by one of her interns while attending college. The intern’s story is shocking, and the Act is well-intentioned. Unfortunately, it is still as flawed as it was when introduced by Senator Frank Lautenberg of New Jersey back in 2010 following the tragic death of Rutgers University student Tyler Clementi.
Senator Murray was inspired to reintroduce the Act after intern Kristopher Sharp told her of harassment he endured as a student at the University of Houston - Downtown (UHD). Sharp, who is gay, was running for student government last year as a junior when flyers that displayed Sharp’s medical records were distributed across campus, indicating that Sharp is HIV-positive. The other side of the flyers included a crossed-out picture of Sharp and read “WANT AIDS? DON’T SUPPORT THE Isaac and Kris HOMOSEXUAL AGENDA.” Per Murray and Sharp, UHD administrators refused to take action against whoever was responsible for posting the flyers:
The dean told Sharp nothing could be done, Murray recalled. "The injustice of the fact that somebody can put his HIV status on a flyer distribute it, violate his privacy, and [the dean says] there's nothing I can do about it, is just horrendous," she said.
Sharp described the incident as "devastating."
"This is the dean of students," he said during the interview with Murray. "This is an administrative official in the university who has clearly articulated to me that the things that are happening are not things they can do anything about."
Sharp considered transferring, but stayed at UHD and won the election. Now, Sharp’s ordeal has prompted Senator Murray to take action by reintroducing the Tyler Clementi Higher Education Anti-Harassment Act.
Regrettably, the Act presents the same concerns it did when it was first introduced in 2010. That’s unsurprising, given that the text of this year’s Act is virtually unchanged from its first iteration. Just as in 2010, there are two main problems with the bill: It’s redundant and it threatens expression protected by the First Amendment.
Let’s start with the bill’s redundancy.
As an initial observation, it’s worth noting that the shocking behavior that prompted the Act’s reintroduction—disclosing private medical records—is already illegal. (Similarly, the shocking behavior that prompted the Act’s initial introduction—Clementi’s roommate surreptitiously filming him engaging in sexual conduct—was also already prohibited by law.) Here, the malicious and unauthorized disclosure of Sharp’s medical records is prohibited by the Texas Health and Safety Code, and an individual found responsible could face both civil and criminal liability. Indeed, per the Code, each disclosure of a confidential test result is a separate offense, so distribution of flyers campuswide that revealed Sharp’s medical status might have resulted in considerable penalties. GayRVA reported last April that Sharp was not interested in pursuing civil damages or pressing charges, which was his choice to make. But when assessing the usefulness of new legislation, it is important to note when the conduct sought to be prohibited is in fact already illegal.
Next, the Act would require all colleges that accept federal funding to maintain policies prohibiting harassment on the basis of race, sex, color, national origin, disability, sexual orientation, gender identity, or religion. But this is largely redundant, as well.
Regulations in place under federal anti-discrimination laws like Titles IV, VI, IX, and the Americans with Disabilities Act mean that colleges and universities must already prohibit harassment on the basis of race, sex, color, national origin, disability, age, and religion. (FIRE has never encountered a college that lacks a harassment policy.) With regard to sexual orientation, the Department of Education’s Office for Civil Rights (OCR) has found that Title IX outlaws discriminatory harassment on that basis, stating in 2001 that “sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's program constitutes sexual harassment prohibited by Title IX.” Federal courts have agreed. Similarly, with regard to gender identity, OCR has invoked Title IX, making clear that “gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond, if it rises to a level that denies or limits a student's ability to participate in or benefit from the educational program.”
In other words, federal law and the accompanying jurisprudence already requires colleges to maintain policies prohibiting harassment based on the class statuses addressed by the Act, rendering the Act redundant. (A Yale Daily News article about the Act published today unfortunately gets this important fact wrong, claiming that under the law, “colleges and universities would be required by the federal government to enact anti-harassment policies for the first time.”)
Now, if the animating impetus here is to explicitly codify the prohibition of harassment based on sexual orientation and gender identity into federal law, reinforcing interpretative guidance and federal court decisions, then Congress should write legislation that does just that, as I’ve written before. As a practical matter, this codification would not functionally change the responsibility that colleges and universities already have under the law, but would simply ground that duty in legislation rather than regulation.
Unfortunately, the proposed bill goes further. And that’s where the First Amendment problem arises—specifically, in the bill’s definition of harassment.
The bill requires colleges to maintain policies prohibiting harassment, which it defines as conduct that is "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 at an institution of higher education." The problem with this definition—again, as FIRE has explained before—is that it fails to track the definition of discriminatory harassment provided by the Supreme Court of the United States in its clearest decision on harassment in the educational context.
In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court defined student-on-student harassment as 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.” This standard strikes an appropriate balance between the twin moral and legal obligations of colleges to both prohibit unlawfully harassing conduct and respect expression protected by the First Amendment. Davis concerned peer-on-peer sexual harassment, but Justice Sandra Day O’Connor’s careful standard works equally well in cases of discriminatory harassment based on any protected class—not just sexual harassment.
Unsurprisingly, given this clear pronouncement from our nation’s highest court, lower courts have relied on this definition in adjudicating Title IX liability cases ever since. Colleges and universities have adopted this definition for discriminatory harassment, too, including the entire University of California system (though compliance at some UC institutions has been disappointing). FIRE has been advising colleges and universities to adopt the Davis definition of harassment for years, and so have risk management professionals (PDF). Again, it’s easy to see why: It’s a well thought-out standard, it’s authored by the Supreme Court, and as a result, it’s all but guaranteed to hold up in a lawsuit, whether the complaint concerns anti-discrimination laws or the First Amendment.
In contrast with the clarity of the Davis standard, the Act’s definition is a muddle. For one, it lacks Davis’ requirement that the conduct in question be objectively offensive. Why does this matter? Well, an objectivity requirement means that a reasonable person would find the behavior offensive. So without it, the behavior need only be “sufficiently severe, persistent, or pervasive” that it limits anyone’s ability to participate in a school’s programs or activities, no matter how unreasonable the response. In other words, the Act’s definition allows the most subjectively, unreasonably offended student to decide the limits of campus expression.
Just as worryingly, the Act alternatively defines harassment as behavior that “create[s] a hostile or abusive educational environment at an institution of higher education.” This standard is troublingly broad, leaving college administrators with all but unfettered discretion to determine whether speech is “hostile” or “abusive” enough to warrant punishment as harassment. Unfortunately, FIRE’s extensive experience defending student speech demonstrates that college administrators are often incapable of enforcing similarly vague policies governing student speech either fairly or rationally. Time and time again, FIRE has seen constitutionally protected student speech shut down or investigated following harassment charges. Indeed, as FIRE noted in a 2010 press release about the Act the first time it was introduced, our case archive contains “hundreds of examples of students and faculty members who have faced censorship, investigation, or punishment for parody, satire, speaking out against campus policies or public figures, and discussing important issues facing our society through protest and even through art.” Depressingly, the list of examples has only grown longer in the past four years.
Speaking of administrators, the Act does them no favors. College harassment policies that lack objectivity requirements, like the Act’s definition does, or are otherwise vague or broad, like the Act is, have been consistently struck down in federal courts for nearly 30 years. So were the Act to be passed, administrators would be faced with an impossible choice: violate the Act, or violate the First Amendment. In an op-ed I wrote about the Act back in 2011 for The Chronicle of Higher Education, I explained the problem:
In addition to being forced to supply substance to vague terms when assessing student speech, administrators would face an equally fraught decision between implementing the new law and respecting decisions handed down in recent years by federal courts.
For example, the U.S. Court of Appeals for the Third Circuit has relied on the Davis standard to determine whether or not colleges' harassment policies conflict with students' First Amendment rights. In 2008's DeJohn v. Temple University, the appeals court struck down Temple's former sexual-harassment policy on First Amendment grounds because it failed to track the Davis standard. The Third Circuit held that because Temple's policy failed to require that the conduct "objectively" created a hostile environment, it provided "no shelter for core protected speech." In other words, because Temple's policy suffered from precisely the same deficiency now found in the proposed Tyler Clementi Act, it violated the First Amendment.
Because the Third Circuit's jurisdiction includes New Jersey, its decision in DeJohn is legally binding on state public universities like Rutgers. Were the act to pass, Rutgers administrators would be forced by Congress to ignore the First Amendment in implementing a law named after one of their own students gone too soon. But, given Third Circuit precedent, once that law is challenged, a loss on constitutional grounds in federal court is all but certain.
Because the operative language of the reintroduced Act is identical to the Act I was writing about three years ago, this problem remains.
But a simple fix remains as well. As I wrote in that same article, “Luckily, the problems with the legislation can be dealt with easily: The Davis standard should be written into the bill's definition of harassment. That way the conflict between Congress and the courts can be avoided, student-speech rights can be protected, and truly harassing conduct can continue to be addressed.” That holds true today, too.
When confronted with tragic events like Tyler Clementi’s heartbreaking death or unconscionable treatment like that suffered by Kristopher Sharp, legislators understandably feel an urge to do something. But when the conduct at issue is already prohibited by law, legislation isn’t the answer. And when the legislation that is nevertheless introduced threatens First Amendment rights, it must be revised or rejected. Otherwise, one problem is simply leading to another—a result that fails everyone.