The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights

Abstract

This article argues that many colleges and universities have misapplied hostile environment harassment law to restrict students’ speech rights. Colleges and universities, in clear contravention of the case law, have both implemented constitutionally vague and over broad harassment policies and applied their policies against protected student speech. In doing so, these institutions have misinterpreted their obligations under Title IX and Title VI to prevent true hostile environment harassment of students and, crucially, have ignored the need to preserve and protect the unfettered exchange of ideas on the college campus. One major factor contributing to the problem has been the practice of conflating employment harassment law under Title VII with student-on-student (or peer) harassment law under Title IX and Title VI. This article argues that Title VII hostile environment standards should not be used to shape university policy and practice regarding student conduct, and that to the extent universities wish to regulate student interactions, they should properly follow the peer harassment standard established by the Supreme Court in Davis v. Monroe County Board of Education. Additionally, the article advocates for the elimination of institutional liability under Title IX and Title VI for peer harassment, as this would advance campus speech rights greatly by eliminating a primary motive universities have for censoring and punishing student expression.

Keywords: Hostile environment, peer harassment, higher education, freedom of speech, First Amendment, Title IX, Title VI, Title VII, sexual harassment, racial harassment