11/24/10-by Bridgette P. LaVictoire
The Foundation for Individual Rights In Education has decided unilaterally that it is necessary to maintain harassment and discrimination against students in schools because they believe that it is alright to bully lesbians and gays. Of course, they claim that the Tyler Clementi bill would violate the First Amendment, but they do not seem to have a lot of proof to back this up.
“Tyler Clementi was subjected to an unconscionable violation of privacy, but that conduct was already criminal and prohibited by every college in America. For decades, colleges have used vague, broad harassment codes to silence even the most innocuous speech on campus. The proposed law requires universities to police even more student speech under a hopelessly vague standard that will be a disaster for open debate and discourse on campus. And all this in response to student behavior that was already illegal.”
Ah, but before that violation of privacy, there was a lot more harassment. He also glosses over the deaths of another dozen gay students who took their lives via one method or another in the months after Clementi took his own life. FIRE, which is rather strongly tied to groups like the Alliance Defense Fund and the Family Research Council claims to work on “behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities.” Unfortunately, when it has come to trying to combat the damage that bullying and harassing has done in this nation, especially when directed towards lesbians and gays, it has done its best to side with those who cause the suicides and not those who are victims of the bullying.
After Senator Frank Lautenberg and Representative Rush Holt introduced the “Tyler Clementi Higher Education Anti-Harassment Act,” Senator Lautenberg declared that “it is time for our colleges to put policies on the books that would protect students from harassment.” But such policies are already in place. For decades, colleges that receive federal funding have been required to maintain policies that address discriminatory harassment under Titles VI and IX of the Civil Rights Act of 1964.
The bill, which would amend the Higher Education Act, flies in the face of that very law. When Congress reauthorized the Act in 2008, it added a “sense of Congress” provision noting that “an institution of higher education should facilitate the free and open exchange of ideas.”
In contrast, the bill redefines harassment in a manner that is at odds with the Supreme Court’s exacting definition of student-on-student harassment, which successfully balances the need to respond to extreme behavior with the importance of free speech on campus. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court defined student-on-student harassment as 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.” This definition has been relied upon by courts for more than a decade and has been adopted by many institutions across the country, including the entire University of California system.
Flouting the Supreme Court’s carefully crafted balance, the bill removes the requirement that the behavior in question be objectively offensive. The loss of this crucial “reasonable person” standard means that those most interested in silencing viewpoints they don’t like will effectively determine what speech should be banned from campus. Unconstitutional definitions of “harassment” have already provided the most commonly abused rationale justifying censorship, having been applied to a student magazine at Tufts University that published true if unflattering facts about Islam, a Brandeis professor who used an epithet in order to explain its origins and condemn its use as a slur, and even a student at an Indiana college simply for publicly reading a book.
FIRE continues on, but does not actually provide anything to actually back up their assertions. They have not appeared to offer up an alternative either that would protect these individuals from being bullied. Instead, they have decided that this bill is wrong absolutely and that it should not be enacted. Why not prove that FIRE is both worried about the lives of bullying victims and the First Amendment by getting their experts to write up a new bill that will do all of this.
If not, then FIRE only proves itself to be more than willing to sacrifice the lives of young women and men everywhere. Prove this characterization wrong and provide a decent bill that will protect our youth AND our rights.