������ýapp�ٷ�

First Amendment for College Administrators

Lesson 4: Harassment Policies on Campus

Video 4: Why "Davis"?

View video

Video Transcript

Most people understand the First Amendment protects unpopular speech, and thus protects speech we might find annoying, inappropriate, or even offensive. But at what point do annoying, offensive, or inappropriate comments based on sex, race, national origin, or other protected class become harassment — and lose the First Amendment’s protection? 

Fortunately, the line dividing First Amendment-protected speech from unprotected discriminatory harassment on campus is not a matter of opinion, but a matter of law. At colleges and universities that receive federal funding, including federal Pell grants and other financial assistance — that's the vast majority of institutions nationwide — the line is governed by the Supreme Court's landmark 1999 decision in Davis v. Monroe County Board of Education. 

Davis dealt with an elementary school student in Georgia who was subjected to a months-long pattern of conduct by a fellow student that included repeated attempts to touch her breasts and genitals and repeated, sexually explicit comments made to and about her. When the school took little action in response, the student filed suit.

In considering when educational institutions have an obligation to intervene, the Supreme Court set the standard for discriminatory peer harassment as targeted, unwelcome conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” 

So, what’s so special about this case? Why is this the right standard?

First, the Davis standard is intentionally protective of student speech. The standard was carefully crafted by the Supreme Court to avoid putting educational institutions in a position where they would have to infringe upon students’ free speech rights in order to avoid liability for their own inaction. Justice O’Connor’s majority opinion took pains to address Justice Kennedy’s concern, in dissent, that permitting schools to police hostile environments would step on students’ First Amendment rights. The result is a standard purposefully designed to impose what O’Connor characterized as “very real limitations,” on schools’ liability for discriminatory peer harassment, in part as recognition of the importance of protecting campus speech rights. 

Next, the high — but not impossible — standard Davis sets for when speech crosses the line into discriminatory harassment is the one standard consistently used nationwide. Since 1999, courts across the country have applied the Davis standard even more broadly than the school liability context, including to grant injunctive relief in student free speech claims. And the Department of Education’s Office of Civil Rights has even adopted it, though perhaps inconsistently as administrations have come and gone. A common criticism of Davis is that it comes from a case that only addressed schools’ liability for ignoring harassment — but in the years since, it’s become the standard for defining harassment in any context, and for protecting speech that falls short of it.

Now let’s look at the issues with some of the proposed alternatives to Davis FIREhas seen in its nearly 20 years reviewing campus harassment policies. 

First, policies that define sexual harassment as merely “any unwelcome conduct of a sexual nature.” This overbroad definition could be used to punish a student for a crude joke or even a failed attempt to ask someone on a date. It’s also vague, giving students no notice of what speech crosses the line, since “unwelcome” is entirely up to the listener. 

Especially in the area of sexual harassment, speech addressing sex related topics such as gender transitioning, gay marriage, and abortion, may at times reasonably offend individual students, yet they are also vitally important issues for students to be free to discuss without fear of reprisal.

Next, a small change to the Davis standard that has a big impact — let’s see if you can spot it: unwelcome conduct that is “so severe, pervasive, or objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Changing “and” to “or,” as schools sometimes do, undermines the Davis standard. Allowing even objectively offensive speech that is either “severe” or “pervasive,” but not both, to be actionable would mean a severe utterance, never repeated, would become punishable. FIREcould also be punished for mildly offensive speech that is merely repeated. If a student — no matter how unusually sensitive — feels that speech constitutes discriminatory harassment, the speaker could be punished.

Here’s a hypothetical example based on ������ýapp�ٷ�'s experience on campus: In a first-year criminal justice class, discussions of race and sex profiling come up on multiple days throughout the semester. Discussions generally spill out into the hallway after class. A number of students on those days civilly argue whether police should profile murder suspects based on both sex and race proportionate to statistical murder rates. The students in favor of profiling argue that concerns about discrimination should give way to the state’s interest in data-driven homicide prevention. A student feels singled out on the basis of both his race and sex and files a complaint. The student plausibly alleges a pervasive atmosphere of discriminatory harassment, but does not allege the comments made were severe.

Under the “or” formulation, students could be punished for engaging in this debate. Offensive speech that is repeated — like this multi-day and, thus, potentially “pervasive” discussion — would be punishable because a single student felt that a debate about racial profiling among criminal justice students effectively denied him access to his education. Such a result is clearly contrary to the truth-seeking mission of colleges and universities.

In conclusion, the Davis standard is the legally required standard when addressing discriminatory harassment in the educational setting because it was carefully crafted and established by the Supreme Court  and thoughtfully balances the concern over protecting students from harassment with the need for freedom of expression on university campuses.

In the next video, we will learn about the importance of administrators understanding the contours of the First Amendment so institutions do not launch unfounded investigations into expression that is protected under the law.

Suggested Resources

•  (1999)

• Robert Shibley, "Why the Supreme Court’s Davis standard is necessary to restore free speech to America’s college campuses: Part I" (2019)

• Robert Shibley, "Why the Supreme Court’s Davis standard is necessary to restore free speech to America’s college campuses: Part II" (20190

• Hawk v. Easton Area School District (3d Cir. 2013) (upholding preliminary injunction against school for banning students from wearing bracelets because the school failed to show that the “bracelets would breed an environment of pervasive and severe harassment” under Davis)

• DeJohn v. Temple University (3d Cir. 2008) (affirming injunction of policy as overbroad “[a]bsent any requirement akin to a showing of severity or pervasiveness,” as set out in Davis)