Clear campus rules needed on ‘harassment’

But last year the OCR backpedaled. The agency issued a 19-page letter in April dictating to colleges the procedures they must follow in sexual harassment and assault cases. Among its many troubling points, including a requirement that sexual harassment cases be adjudicated using the lowest possible standard of evidence allowable in court, is the fact that the letter makes no mention of the First Amendment or free speech. This ignores the role that vague and broad definitions of harassment have played in justifying campus speech codes and censorship over the past few decades. By mandating so many procedural steps colleges must take to respond to allegations of sexual harassment while simultaneously failing to mandate a consistent, limited and constitutional definition of harassment, the OCR encourages those on campus who are already inclined to use such codes to punish speech they simply dislike.

Rather than proffer shifting rules, the OCR should end the threat of harassment-based campus speech codes once and for all. The Supreme Court offered its only guidance on the thorny issue of student-on-student harassment in the 1999 case Davis v. Monroe County Board of Education . The justices recognized the necessity of carefully defining what constitutes “harassment” in the educational context, lest everyday interactions be rendered a federal offense. The court defined harassment as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Personal Post

This definition, if applied fairly, poses little threat to free speech and effectively prohibits real harassment.

This week, FIRE and a broad coalition of organizations (the Tully Center for Free Speech at Syracuse University, National Coalition Against Censorship, the Heartland Institute, National Association of Scholars, Alliance Defense Fund Center for Academic Freedom, Feminists for Free Expression, Woodhull Sexual Freedom Alliance, American Booksellers Foundation for Free Expression, Accuracy in Academia, and the American Council of Trustees and Alumni) are writing to the OCR to request that it publicly affirm the Davis standard as the controlling definition for harassment on campus.

By simply following the Supreme Court’s guidance, the OCR would assure that serious harassment is punished on campus while free speech is robustly protected. In one move, OCR could rid campuses of a substantial portion of all speech codes while protecting institutions from losing still more First Amendment lawsuits. Most important, by recognizing the Davis standard, the OCR would send a message that free speech and free minds are essential to — not incompatible with — the development of creative, critical and innovative thinkers on our nation’s campuses.