‘San Francisco Chronicle’ on Threat of New Federal Harassment Law

October 19, 2010

Debra Saunders’ column in today’s San Francisco Chronicle reports on a puzzling and potentially dangerous development for free speech on campus: an initiative by Senator Frank Lautenberg of New Jersey to enact a new federal law aimed at harassment and cyberbullying in colleges and universities. As I will briefly explain here and in further analysis on The Torch, this is a bad idea for several reasons.

In her column, Saunders describes the development as follows:

Lautenberg hasn’t written a bill yet, but his office sent out a press release announcing "a new legislative effort to ensure that colleges and universities have in place anti-harassment policies, which are not currently required by federal law." It also would require schools that receive federal funds "to recognize cyber-bullying as a form of harassment."

Lautenberg’s initiative comes in the wake of the tragic death of Rutgers University student Tyler Clementi, who committed suicide after a roommate allegedly videotaped and broadcast, over the Internet, Clementi having an intimate encounter in their dorm room.

Clementi’s story is truly a sad one, as anyone can appreciate. But the answer is not another federal regulation, and certainly not what Lautenberg seems to be interested in. As FIRE’s Robert Shibley explains to Saunders:

"I was a little puzzled" by the Lautenberg press release, Robert L. Shibley, senior vice president of the Foundation for Individual Rights in Education (FIRE), told me. "As terrible as the Tyler Clementi case was – and it was – it was already forbidden by harassment policies that every university in America has on the books."

And: "You don’t need a new law to know that that’s illegal." In fact, New Jersey prosecutors have charged two students with two counts each of invasion of privacy.

Indeed, colleges and universities that accept federal funding are already legally required to address and prevent discriminatory harassment, whether on the basis of gender (pursuant to Title IX of the Civil Rights Act of 1964) or on the basis of race, color, or national origin (pursuant to Title VI). As Robert notes, virtually every college and university in the United States has a harassment policyor more typically, a number of harassment policiesin place to meet these obligations, as well as procedures and support systems aimed at remedying occurrences of true harassment and preventing such harassment from taking place again.

The bill that Senator Lautenberg seeks to introduce is therefore redundant. To boot, Saunders makes clear that the requirements Senator Lautenberg seeks would be superfluous right on Rutgers’ campus:

Rutgers already has a student code of conduct with a list of offenses that can lead to expulsion. The list includes "intentionally or recklessly endangering the welfare of any individual" – but more to the point, "making or attempting to make an audio or video recording of any person(s) on University premises in bathrooms, showers, bedrooms, or other premises where there is an expectation of privacy with respect to nudity and/or sexual activity." Under "prohibited conduct," Rutgers lists "cyberbullying."

Lautenberg’s initiative can only muddle things by defining harassment and cyberbullying in ways that restrict a substantial amount of protected speech. This is of course of great concern to FIRE, as the law on student-on-student (or peer) harassment should by now be clear to university administrations and their legal counsels. As we have had to point out far too many times, the Supreme Court has already provided the answer as to what constitutes peer harassment in education, and schools should easily be able to bring their policies in line with the Supreme Court by defining harassment in no more and no less stringent terms.

I therefore especially enjoyed this close to Saunders’ column:

When I mentioned that Rutgers already has the policies Lautenberg advocated, spokeswoman Gail Ribas responded, "It would be a national law."

No, it would be a national imposition. It would be another feel-good bill that a headline-happy senator offered without appearing to have asked himself if the law is redundant, necessary or likely to help.

Very well said, and I couldn’t have put it any better myself. This effort, at least as currently described, is such a bad idea that, again, it merits further analysis here on The Torch. Stay tuned.