Legal scholars, educational administrators, journalists, and students have all witnessed a rise in students being disciplined by university officials for speech and conduct deemed inappropriate for college campuses. In endeavoring to explain this trend, some academics point to the disconnect between the Department of Education and university administrators regarding the legal standards for campus anti-harassment policies. The lack of clarity regarding what constitutes harassment on college campuses has resulted in the punishment of students by universities for speech and conduct that is normally considered to be protected speech under the First Amendment. This note first provides an overview of the First Amendment and its application to students. This note then examines why colleges and universities are perplexed about the standards that should guide their anti-harassment policies. Lastly, this note introduces a solution to the confusion, one that includes a well-supported, former standard for evaluating peer-on-peer harassment, but also incorporates existing First Amendment jurisprudence. This solution would hopefully allow universities to better balance the equally important interests of protecting students from legitimate harassment and fostering free speech and free expression on college campuses.
A Balancing Act for American Universities: Anti-Harassment Policy v. Freedom of Speech,
25 J. L. & Pol'y
Available at: https://brooklynworks.brooklaw.edu/jlp/vol25/iss1/14