Discrimination & Harassment

When speech crosses the line into discrimination or harassment, it is no longer protected, and universities have both a right and an obligation to hold people accountable for it. Discrimination and harassment can create a hostile environment for those affected, impinging on their free expression rights and preventing them from fully participating in the academic life of the institution. While most forms of discrimination and harassment in university settings do not primarily involve speech, this section focuses only on verbal forms. Policies concerning verbal discrimination and harassment cannot be so overbroad as to restrict or chill speech, but ideals of free expression cannot and should never be used as an excuse to justify harassment.

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The two most significant federal statutes regulating speech in higher education are Title VI and Title IX, which prevent discrimination on the basis of race and sex, respectively. The Office of Civil Rights in the Department of Education has stated that these federal regulations are “not intended to restrict the exercise of expressive activities protected under the U.S. Constitution.” Rather, these regulations only apply to unprotected speech that constitutes discrimination and harassment and creates a hostile environment. A hostile environment is created when the harassment is “severe, persistent, or pervasive” and “sufficiently serious to deny or limit a student’s ability to participate in or benefit from an educational program.” Federal and state statutes also exist which criminalize certain kinds of harassment if it is of a recurring, invasive, violent, or otherwise abusive nature.

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• Hateful speech that is intended to menace, intimidate or discriminate against an individual based upon a personal characteristic or membership in a group can impair equal access to the full benefits of a college education and the ability of all students to participate in campus discourse.
• Administrators have an imperative to be responsive to threats, hateful intimidation, and students’ encounters with overt racism and other forms of discrimination. This responsiveness is imperative to nurturing an environment where all feel empowered to participate in the free exchange of ideas and opinions.
• There is no contradiction between advocating for more stringent measures to address sexual harassment and assault on campus and insisting on measures to protect free speech and academic freedom.
• Universities should reiterate the centrality of academic freedom when they address issues of harassment.
• Campus speech legislation should preserve the ability of public colleges to prevent discrimination based on race, ethnicity, religion, or other protected class by publicly funded student organizations.

If you feel you have been the target of online harassment consult our Online Harassment Field Manual to learn more about ways to prepare and respond to online abuse. If you feel you have been the victim of a criminal act or recurring incident of harassment, please consult the U.S. Department of Education Office of Civil Rights or the Lawyers Committee Stop Hate Project.