The proposed bill alters this careful balance by removing the requirement that the behavior in question be objectively offensive. This is a crucial difference, because no longer will the standard be that a “reasonable person” would find the behavior offensive. Instead, what is “offensive” may be determined by the sensibilities of the victim alone, which the speaker may not be aware of, or which may even be totally irrational. This would give power over campus speech to the most perpetually aggrieved among us — a terrible idea anywhere, but especially bad in a place like a university that is supposed to serve as a “marketplace of ideas.”
Another problem is that under the proposed bill, rather than effectively deny a student equal access to “an institution’s resources and opportunities,” as the Supreme Court requires, expression must only “limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education.” Am I splitting hairs here? Again, no. There are a lot of things that are likely to “limit” the benefits of an activity at college that should not be considered harassment. Does holding an “affirmative action bake sale” protest limit the psychological benefits of affirmative action programs? It might. What about holding a counter-protest during a rally in favor of in-state tuition for illegal immigrants? Would this limit the benefits of participating in such a rally? Arguably, yes. It’s not hard to come up with other potential examples. This flimsy standard is ripe for abuse.
The bill also leaves it up to college administrators to determine what constitutes a “hostile or abusive” educational environment. That has repeatedly been shown to be a big mistake. FIRE has handled hundreds of cases in which students and faculty members face censorship, investigation, or punishment for such crimes as writing and performing a parody musical, satirizing feminist flyers, protesting an unconstitutional free speech zone or the actions of government officials, and discussing issues like terrorism through protest or art. Giving college administrators even broader authority to make such decisions will guarantee that even more bad decisions get made.
The bill also mandates that universities extend their jurisdiction in these matters to the online world, meaning that students would face discipline for their speech anywhere in the world. In order to fulfill this requirement, universities are likely to turn to Orwellian means to monitor student behavior in unprecedented ways — including full-scale monitoring of social networking sites like Facebook and Twitter — in order to ward off potential lawsuits. Here’s a stock tip: there are already companies making money on programs that do just that. They must be licking their chops over the reintroduction of the bill.
Other than students, the other group that would be likely to bear the brunt of this bill would be taxpayers. Since the bill would require every public university in America to pass unconstitutional policies, every public university would then be vulnerable to civil rights lawsuits stemming from the enforcement of its provisions. Just as it isn’t fair to strip students of their rights, it’s not fair to put universities between a rock and a hard place by forcing them to adopt such policies. And it can get expensive fast. For example, a community college in Texas, Tarrant County College, was recently ordered to pay $240,000 in legal fees for censoring pro-gun speech.
The inescapable fact is that what happened to Tyler Clementi was a crime, complete with criminal records and jail time if the alleged perpetrators are convicted. Not only that, a moment’s reflection would have made it glaringly obvious that it was a crime. If Ravi and Wei didn’t think about that at the time they allegedly decided to broadcast Clementi on the Internet, why in the world would a new federal law and the resulting university regulations make any difference? When considering this bill, Congress should put aside its emotional origins and see it for what it is — just another effort in the seemingly unending crusade to ensure that students at America’s universities think the way the authorities would like them to think.