Problematic 'Tyler Clementi Higher Education Anti-Harassment Act' Returns to Congress

Yesterday, Senator Frank Lautenberg (D-NJ) and Representative Rush Holt (D-NJ) reintroduced the Tyler Clementi Higher Education Anti-Harassment Act in both the Senate and the House of Representatives. The legislation was first introduced last November, but failed to reach a vote before the end of the 111th Congress.

The exact text of the newly reintroduced bill is not yet available on Thomas.gov, the Library of Congress' legislative information tracker, and as of this morning, neither Senator Lautenberg's nor Representative Holt's offices were able to provide the exact text or to confirm that the text of the legislation is unchanged. However, Senator Lautenberg's press release indicates that the new bill will mirror the previously introduced legislation. According to Senator Lautenberg's press release, if enacted the legislation would:

require colleges and universities that receive federal student aid to have in place a policy that prohibits harassment of students based on their actual or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, or religion.  Schools would have to distribute that policy to all students, along with information about the procedure to follow should an incident of harassment occur, and notify students of counseling, mental health, and other services available to victims or perpetrators of harassment.  The legislation would require schools to recognize cyberbullying as a form of harassment and it would create a new grant program at the U.S. Department of Education to help colleges and universities establish programs to prevent harassment of students.

Unfortunately, based on this summary, it seems all but certain that the new bill recreates the significant First Amendment problems presented by its previous incarnation. FIRE warned about the free speech problems posed by this legislation in a press release last November—a warning echoed by FIRE Co-founder Harvey Silverglate in Forbes and by FIRE President Greg Lukianoff in the Congressional Quarterly Researcher.

Let's review these problems now.

Harassment is already prohibited on campus. Under Titles VI and IX of the Civil Rights Act of 1964, colleges and universities accepting federal funding are already required to maintain and enforce policies prohibiting precisely the kind of discriminatory harassment targeted by this legislation. Senator Lautenberg's press release claims that the bill would "require for the first time that colleges and universities have anti-harassment policies on the books," but this simply isn't true. Like colleges across the country, Rutgers had an anti-harassment policy on the books last fall, at the time of Tyler Clementi's tragic ordeal.

If Senator Lautenberg means that the bill requires schools to address harassment based on sexual orientation for the first time, well, that isn't true either. As Harvey pointed out in his column for Forbes:

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.

Besides, if the bill's purpose is to explicitly prohibit peer-on-peer harassment based on sexual orientation, why not just amend existing law to do so?

The legislation's definition of harassment is vague and subjective, and conflicts with Supreme Court precedent. If the new bill defines harassment anything like it did when introduced last fall, that's a big problem for free speech on campus because it replaces an exacting, clear, speech-protective definition of harassment with a vague and subjective one.

For the past 12 years, colleges and universities have been guided by the Supreme Court's decision in Davis v. Monroe County Board of Education (1999), in which the Court held that peer-on-peer hostile environment harassment was 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 is a very precise definition of harassment, and it allows for an appropriate balance between protected speech and unprotected harassment.

Compare that definition of harassment with the one contained in last fall's bill, which 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."

That may look similar, but it's not. There's no requirement that the expression in question be "objectively offensive," meaning that the most sensitive student on campus will be the one to determine what speech is and is not protected. There's no definition of a "hostile or abusive educational environment," meaning that college administrators will be the ones to determine whether speech is sufficiently "abusive" or "hostile" to warrant punishment. Unfortunately, FIRE's extensive case archives make clear that administrators will inevitably use this power to silence speech they find disagreeable, offensive, inconvenient, or otherwise, without regard to whether or not it's protected.

Making the bill's problems still worse, courts have relied on the Davis standard for years in determining whether or not college harassment policies pass constitutional muster. For a recent example, in DeJohn v. Temple University, 537 F. 3d 301 (3rd Cir. 2008), the United States Court of Appeals for the Third Circuit 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 "[a]bsent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work—the policy provides no shelter for core protected speech." Citing DeJohn, the Third Circuit echoed these same points last year in McCauley v. University of the Virgin Islands, 618 F. 3d 232 (3rd Cir. 2010), in finding that the University of the Virgin Islands' speech codes similarly restricted protected speech.

Ironically, because the Third Circuit's jurisdicton includes New Jersey, any college in Senator Lautenberg's and Representative Holt's home state that maintains the definition of harassment proposed by the legislation would be in direct conflict with not only Supreme Court precedent, but also that of the Third Circuit--both of which are legally binding on public institutions in the state.

New laws aren't needed to address "cyberbullying." Senator Lautenberg's press release states that under the legislation, colleges and universities would be required to "recognize cyberbullying as a form of harassment." While outlawing "cyberbullying" may make for a good soundbite on the evening news, the legislation ignores the fact that the behavior we're apparently now calling "cyberbullying" is already prohibited by colleges and universities across the country; it's just referred to as discriminatory harassment, intimidation, true threats, or other behavior that is unprotected or illegal. At the risk of sounding redundant myself, the abhorrent treatment of Tyler Clementi was already prohibited under both Rutgers policy and state law. The answer to the problem isn't new legislation; it's enforcing what we already have in place.

Young adults don't need special laws that treat them like children. It is strange to think, as this bill implies, that people who turn 18 and go to college are actually less able to handle one another's expression than young adults who don't attend college and instead head straight to the "real world." The idea of treating college students like children who need a mom or dad to tell them how to behave—the doctrine of in loco parentis—went out in the 1960s. While other high school graduates and high school dropouts have to follow no more than existing law when they leave work and go to the park or go home to eat and sleep, under this bill college students—particularly residential students—will be treated like children who need special additional rules 24 hours a day, both on and off campus.

We'll have much more on the Tyler Clementi Higher Education Anti-Harassment Act here on The Torch in the days to come--beginning when the text of the bill is finally available online.