By Will Creeley
At first glance, the Tyler Clementi Higher Education Anti-Harassment Act might appear to be helpful, important legislation. The bill would require colleges that receive federal aid to prohibit harassment based on certain characteristics, including sexual orientation. Named in honor of a Rutgers University student who took his own life last fall after his intimate encounter with another man was secretly broadcast online by fellow students, the proposed legislation is evidently a product of good intentions.
But a closer examination of the bill, reintroduced in both houses of Congress last month, reveals a serious threat to student speech on campuses and a looming predicament for college administrators. Were the act to pass, students would face an unacceptable risk of punishment simply for engaging in protected expression. For their part, administrators would be stuck in a legal limbo, caught uncomfortably amid the First Amendment, federal courts, and legislation.
So what's wrong with the bill?
First of all, it's redundant. Colleges and universities already must maintain and enforce policies prohibiting discriminatory harassment under existing federal law. Sen. Frank R. Lautenberg's office claims that the law would require "for the first time that colleges and universities have antiharassment policies on the books"—but this just isn't the case, as any student-conduct administrator worth his or her salt could have told the gentleman from New Jersey. Perhaps Lautenberg, who sponsored the bill in the Senate, meant that it would require colleges to address harassment based on sexual orientation for the first time. But that wouldn't be quite true, either: Courts have found that discrimination based on actual or perceived sexual orientation may qualify as actionable harassment, and the Department of Education has said the same.
If redundancy were the only problem presented by the bill, it might be of less concern. Unfortunately, it's not: The legislation's definition of harassment is vague, subjective, and at odds with Supreme Court precedent.
In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court defined hostile-environment peer 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." This exacting definition strikes an appropriate balance between protected speech and unprotected harassment—which is exactly why it has been cited for the past decade by colleges, courts, and the Department of Education's Office for Civil Rights.
In contrast, the proposed legislation's definition of harassment is vague and subjective. It 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."
While this may seem functionally similar to the Davis standard, it isn't. For one, the bill's definition fails to require that the allegedly harassing expression be "objectively offensive." Without this built-in "reasonable person" standard, whether or not speech is actionable harassment will effectively be determined by the most sensitive student on campus, no matter how unreasonably offended he or she may be by protected speech.
Making matters worse, the bill also fails to define what constitutes a "hostile or abusive educational environment," apparently leaving student-conduct administrators to determine whether or not speech is sufficiently "hostile" or "abusive" as they see fit. This newfound discretion would prove to be a curse to administrators: Fail to punish protected speech that an alleged victim deemed "hostile" enough to qualify as harassment, and risk a lawsuit from the accuser; punish speech that, despite being protected, seemed to create a "hostile" environment, and risk a lawsuit from the accused.
Unfortunately, the problems presented by the new bill wouldn't stop there for college administrators. 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.
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. But even with that change, legislators and the general public should realize that new legislation isn't always the answer. Remember, the unconscionable treatment of Tyler Clementi was already prohibited under both university policy and state criminal law.
Campus-conduct administrators have been under intense scrutiny since Clementi's tragic story hit newspapers. Given the shock and sadness engendered by Clementi's death, it's not surprising that legislators have felt the urge to "do something." But however admirable the intentions, the act as written fails to protect student-speech rights and puts administrators in a miserable position.
Will Creeley is director of legal and public advocacy at the Foundation for Individual Rights in Education.