By Alexis Snyder. 114 Penn St. L. Rev. 367.
In the past two decades, the tension between the First Amendment’s free speech guarantee and harassment policies has been the subject of much commentary. This tension is particularly strong in the university setting. On the one hand, universities are seen as beacons of free thought and the exchange of ideas. On the other hand, universities have a duty to protect their students from harassment, which could interfere with a student’s right to participate fully in the learning environment.In fact, courts have indicated that a university can be legally liable for student-on-student sexual harassment under Title IX if the university knows about the harassment and fails to take any action . . . [keep reading]
In the past two decades, the tension between the First Amendment’s free speech guarantee[1] and harassment policies has been the subject of much commentary. This tension is particularly strong in the university setting.[2] On the one hand, universities are seen as beacons of free thought and the exchange of ideas. On the other hand, universities have a duty to protect their students from harassment, which could interfere with a student’s right to participate fully in the learning environment. In fact, courts have indicated that a university can be legally liable for student-on-student sexual harassment under Title IX if the university knows about the harassment and fails to take any action.[3]
[1]. The First Amendment to the United States Constitution states, in relevant part, “Congress shall make no law . . . abridging the freedom of speech. . . .” U.S. Const. amend. I. The First Amendment has limits, however; the free speech clause does not protect certain categories of speech, such as defamation and obscenity. Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002).
[2]. See generally Anita Cava & Beverly Earle, The Collision of Rights and a Search for Limits: Free Speech in the Academy and Freedom from Sexual Harassment on Campus, 18 Berkeley J. Emp. & Lab. L. 282 (1997) (examining the conflict between the First Amendment and university sexual harassment policies as applied to faculty); Joshua S. Press, Comment, Teachers, Leave Those Kids Alone? On Free Speech and Shouting Fiery Epithets in a Crowded Dormitory, 102 Nw. U. L. Rev. 987 (2008) (discussing the history of campus hate speech policies and suggesting that campus-wide anti-harassment policies are unconstitutional, but proposing that policies applicable only to dormitories would comply with the First Amendment).
[3]. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999) (holding that a school may be liable for damages in a private action under Title IX “where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities” and the sexual harassment is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”); Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1294-99 (11th Cir. 2007); see generally Karen E. Edmonson, Comment, Davis v. Monroe County Board of Education Goes to College: Holding Post-Secondary Institutions Liable Under Title IX For Peer Sexual Harassment, 75 Notre Dame L. Rev. 1203 (2000).