Back to the campus speech code wars?

by Walter Olson on November 23, 2010

According to FIRE, the Foundation for Individual Rights in Education, an “anti-bullying” bill lately introduced in Congress would alter the definition of harassment in such a way as to give university administrations a strong incentive to punish many forms of controversial student speech, and also press those administrations to monitor students’ use of Facebook and other social media in intrusive ways. I’ve got a new post at Cato at Liberty relaying some of the warnings (welcome Instapundit and Fark readers).

{ 1 comment }

1 Hans Bader 11.24.10 at 3:54 pm

FIRE understates how much the bill changes the definition of harassment.

Under the Supreme Court’s decision in Davis v. Monroe County Board of Education (1999), harassment in schools must be severe AND pervasive AND objectively offensive to be actionable.

The bill would merely require it to be severe OR pervasive OR persistent.

FIRE notes that the bill would eliminate the “objective offensiveness” element in existing law.

But it would go well beyond that to allow claims to be based on trivial conduct that is pervasive but NOT severe, since it replaces severe AND pervasive with severe OR pervasive, and for good measure, allows liability based on “persistent” speech that isn’t EITHER pervasive OR severe (it requires only that speech or conduct be “severe, pervasive, OR persistent”). (In the workplace, harassment need only be severe OR pervasive, but “persistent” isn’t a basis for liability where the conduct is too trivial to pervade the workplace).

The bill’s language superficially resembles the Education Department Office for Civil Rights (OCR) guidance that was effectively abrogated by the Supreme Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). (Although it does not fully comport with OCR’s guidance, either, and OCR requires objective offensiveness).

The bill also adds entirely new protected categories like “gender identity” and sexual orientation. (The former opens a big can of worms).

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