Civil Liberties

FIRE to Congress, university presidents: Don’t expand censorship. End it.

No hypocrisy. No double standards.

by Nico Perrino December 6, 2023

For FIRE's statement on University of Pennsylvania President Liz Magill's troubling follow-up statement to her testimony before the House Committee on Education & the Workforce, see: "Penn President Liz Magill signals profoundly misguided willingness to abandon free expression."

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FIRE has battled vague, broad college harassment policies since our founding in 1999. We have defeated hundreds of unconstitutional, illiberal harassment policies at campuses nationwide — and we target these particular speech codes because harassment policies have long been the tool of choice for censorial college administrators. FIRE’s case archives prove that harassment charges are regularly used to censor all kinds of speech, from punishing a student group at Long Island University critical of trans issues to investigating pro-choice students at American University.

Of course, Harvard, Penn, and MIT all have harassment policies that are ripe for abuse. So — given their testimony yesterday and apparent newfound commitment to free speech — we invite these institutions to reform their policies once and for all. Students have both a right to free expression and a right to learn free of discriminatory harassment. Institutions like Harvard, Penn, and MIT have a legal and moral obligation to deliver both.

Fortunately, we have legal guidelines for what constitutes unprotected discriminatory harassment. We don’t need to guess. The Supreme Court laid out the standard for peer-on-peer harassment in 1999: The conduct in question must be targeted, unwelcome, and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” This is a high, but not insurmountable, bar. Some individuals on campus may well be engaging in behavior that qualifies as harassment. ... The bottom line is that harassment is a pattern of targeted behavior. For example, it’s hard to see how the single utterance Rep. Elise Stefanik asked about during the hearing — no matter how offensive — would qualify given this pervasiveness requirement.

Link to tweet

No student may be expelled — or otherwise punished — for expression that is protected by the First Amendment on a public college campus, or by similarly stringent institutional promises on a private college campus. But when students engage in conduct that isn’t protected under the First Amendment — for example, by disrupting events, blocking egress in and out of buildings, engaging in violence, or issuing true threats to others — those actions are not protected by the First Amendment. Institutions must take all reasonable measures to protect students from unprotected conduct that stifles free speech or credibly threatens the physical safety of others.

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