Summary of Bullying Free Speech

Summary of Bullying Free Speech

By Harvey Silverglate

In the article titled, "Bullying Free Speech," Harvey Silverglate concluded that the Clementi Higher Education Anti-Harassment Act should not be passed. The act was initiated by Senator Frank Laughtenburg and Rep. Rush Holt, who authored the bill to prevent future incidents of bullying and to expand anti-harassment regulations. This bill was created in response to Freshmen Tyler Clementi who took his own life, because two students filmed and made public his gay sexual encounter.

Silverglate argues that the bill is redundant, because genuine bullying is already a violation under Title VI and Title IX of 1964. For example, In Davis v. Monroe County board of Education, the Supreme Court defined student-on-student harassment as a distinction between merely unpleasant speech and truly harassing verbal behavior, which is conduct so severe, objectively offensive, and detracts from victim-students educational experience and equal access to institution resources. In contrast the proposed legislation replaces objectively offensive with sufficiently severe as to limit a person's ability to participate or benefit from a program or activity.

Silverglate stated Representative Rush Holt's rebuttal, that the bill is necessary because the laws ban harassment on everything except sexual orientation, yet the court already held discrimination as gender-based harassment under Title IX, and that same-sex discrimination is just as prohibited as male-on-female or female-on-male discrimination.

Silverglate argues that the bill is vague because the new definition will easily allow offended people to file claims. If enacted, it will cause more erosion of college speech rights. For example, the bill would replace the definition of harassment with a vague one, thus it is setting an environment where students will likely avoid prohibited subjects. Silverglate also argues that there is no exact definition of what constitutes hostile or an abusive educational environment, and the result of this is administrators will become the sole judges. Silverglate suggests that such determinations are beyond administrators.

Silverglate cites (FIRE) the independent watchdog group who believes that charges of harassment are the most abused tool to punish speech on campuses. For example, a student-employee of Indiana public college was found guilty of racial harassment for reading, during his work breaks, the book Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. Under the proposed bill crackdowns on protected speech will grow, which teaches students wrong lesson about free speech in democracy.

Silverglate disagrees with the Clementi Anti-Harassment Act and prefers to protect academic free speech.