Advancing Religious Liberty
4/13/11 at 02:37 PM 0 Comments

Anti-Harassment Legislation that Offends the First Amendment

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Author: ADF Legal Counsel David J. Hacker

Will Creeley has a spot-on analysis in today’s Chronicle of Higher Education discussing why the Tyler Clementi Higher Education Anti-Harassment Act is unconstitutional and unnecessary.  Last month, Sen. Frank R. Lautenberg (NJ) reintroduced the bill in Congress, which is named after the Rutgers University student who tragically took his life last year.  Sen. Lautenberg claims the purpose of the bill is “to support colleges as they put in place and strengthen anti-harassment and anti-bullying programs.”  But the bill is flush with overbroad and vague restrictions on speech: 

[A] closer examination of the bill, reintroduced in both houses of Congress last month, reveals a serious threat to student speech on campuses­ and a looming predicament for college administrators. Were the act to pass, students would face an unacceptable risk of punishment simply for engaging in protected expression. For their part, administrators would be stuck in a legal limbo, caught uncomfortably amid the First Amendment, federal courts, and legislation.

As Creeley explains, the bill’s definition of harassment conflicts with the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education by failing to require that harassment be objectively offensive before it may be deemed prohibited.  This leaves the definition of harassment in the subjective hands of listeners and administrators. 

What’s more, if the bill passed both houses of Congress, it would immediately conflict with the U.S. Court of Appeals for the Third Circuit’s 2008 decision in DeJohn v. Temple University (I represented Mr. DeJohn).  As Creeley concludes, in DeJohn:

the appeals court struck down Temple’s former sexual-harassment policy on First Amendment grounds because it failed to track the Davisstandard. The Third Circuit held that because Temple’s policy failed to require that the conduct “objectively” created a hostile environment, it provided “no shelter for core protected speech.” In other words, because Temple’s policy suffered from precisely the same deficiency now found in the proposed Tyler Clementi Act, it violated the First Amendment.

In other words, the federal appeals court that has jurisdiction over Sen. Lautenberg’s home state of New Jersey, has already ruled that much of the language in his bill violates the First Amendment.  Universities have enough trouble writing harassment policies that comply with the First Amendment.  The Tyler Clementi Act doesn’t help.

This post originally appeared here.

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