Clementi Anti-Harassment Education Act Introduced- Again

Congressman Rush Holt, (D-NJ)

By Brody Levesque | WASHINGTON -- During a dedication ceremony Monday of the Tyler Clementi Center at Rutgers University in New Jersey, U. S. Representative Rush Holt, (D-NJ) announced that he and New Jersey Democratic U. S. Senator Frank Lautenberg have reintroduced legislation in Congress that would require colleges to implement anti-harassment policies.

The Tyler Clementi Higher Education Anti-Harassment Act was first introduced shortly after Clementi’s death in 2010.

Clementi was a Rutgers freshman in the first weeks of his first semester when he jumped off the George Washington Bridge in September 2010.

In the days before his death, Clementi learned his roommate, Dharun Ravi, used a webcam to watch him hugging and kissing another man in their dorm room. Clementi learned Ravi had recounted what he saw on Twitter, then tried to use the webcam to catch him in a second romantic encounter.

Ravi was found later guilty of invasion of privacy, bias intimidation and other charges last year and served less than a month in county jail. Both Ravi and prosecutors have appealed the case, which drew international attention.

Holt told the audience that included Jane Clementi, her husband Joseph Clementi and sons James Clementi and Brian Clementi, the legislation would make grants available to help colleges find creative ways to battle bullying and help students in Clementi’s memory.

“There will be change. There already is and this will bring about even more,” Holt said.

If enacted the legislation would require colleges and universities that receive federal student aid to have in place a policy that prohibits harassment of students based on their actual or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, or religion.  Schools would have to distribute that policy to all students, along with information about the procedure to follow should an incident of harassment occur, and notify students of counseling, mental health, and other services available to victims or perpetrators of harassment.  The legislation would require schools to recognize cyberbullying as a form of harassment and it would create a new grant program at the U.S. Department of Education to help colleges and universities establish programs to prevent harassment of students.

The proposed law has failed to garner enough support for passage over the past two Congressional sessions and according to political analysts and a Senior Legislative Counsel for the Human Rights Campaign, most likely will not make it through the current GOP controlled House.

In a phone interview Tuesday, Joe Cohn, the Legislative & Policy Director for the Philadelphia based Foundation for Individual Rights in Education (FIRE)- a nonpartisan, nonprofit organization dedicated to defending core constitutional rights on the nation’s college and university campuses- told LGBTQ Nation that such legislation can be problematic.

"Policy makers and public university administrators have a moral and legal obligation to make sure that the definitions of harassment and bullying written into law and policy properly recognize both the need to provide safe learning environments for all and the need to comply with First Amendment's guarantee of free speech. These two goals do not need to conflict." Cohn said.

Referring to a U. S. Supreme Court decision, [Davis v. Monroe County Board of Education (1999)], Cohn noted that the Supreme Court reconciled these objectives in holding that, in the context of a K-12 student-on-student sexual harassment case, harassment is 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.”

"The text of the newly reintroduced Tyler Clementi bill has not yet been released publicly. However, a key reason that the definition of harassment provided in the previous versions failed to track the Supreme Court’s Davis standard was that it did not require that prohibited conduct be objectively offensive, meaning that a reasonable person would find the conduct offensive. FIRE is hopeful that Congress will redress this constitutional deficiency in the Clementi legislation and any future anti-bullying bills."

Cohn also pointed out that many courts have already interpreted Title IX, which prohibits discrimination on the basis of gender, to include a prohibition on harassment on the basis of the target’s non-conformance with gender stereotyping.