Hundreds of overbroad harassment policies severely endanger protected speech

FIRE frequently encounters speech codes that threaten constitutionally protected speech, but none appear more often than overbroad or vague harassment policies. We see these policies so often we became curious — just how many of these problematic policies do not comply with the Supreme Court’s standard for student-on-student (or peer) harassment? 753 individual policies, it turns out.

Properly defined, peer harassment is not protected speech. However, under the standard for peer harassment provided by the Supreme Court, alleged harassment must be 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.” Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). As the Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this issue. Unfortunately, colleges and universities often maintain overbroad harassment policies that punish both protected and unprotected speech.

In November, FIRE reviewed policies at 411 colleges and universities that either define or address harassment, and found 753 speech codes at these institutions that fall short of the Supreme Court’s Davis standard for peer harassment. That massive number is due in large part to the common occurrence of institutions maintaining multiple, contradictory harassment policies. The problem is further complicated when, in addition to traditional harassment and sexual misconduct policies, institutions also maintain anti-bullying policies, internet usage policies, and bias incident/hate speech policies that address harassment. These policies often define harassment in a way that is inconsistent with the institution’s official harassment policy.

Uniform compliance with the Supreme Court’s peer harassment standard would effect major policy change on our nation’s campuses. Of the 411 colleges and universities we reviewed, 374 schools maintain one or more harassment policy that does not meet the Davis standard. Of those institutions, 17 would immediately obtain a “green light,” our highest speech code rating, if they were to implement the proper definition of peer harassment in their policies.

Due to the sweeping nature of this problem, FIRE urges Congress to codify the Davis peer harassment standard, which would legally obligate colleges and universities to revise their unconstitutional policies. Clearly, colleges and universities often fail to limit their policies on harassment to the narrow definition set out by the Supreme Court in Davis. As evidenced by our review of affected policies, this misstatement of the legal standard in university policies unconstitutionally restricts the speech of hundreds of thousands of students across the nation. We hope Congress will reverse the course of this illiberal trend.