Unconstitutional ‘SAFER Act’ violates the First Amendment, undermines academic freedom, and seeks to upend decades of anti-discrimination law

Article here. Excerpt:

'Earlier this month, Senators Bob Casey and Mazie Hirono and Representatives Jahana Hayes and Debbie Dingell introduced the “Students’ Access to Freedom and Educational Rights Act of 2022” (the “SAFER Act”; S. 5158/H.R. 9387) in their respective chambers of Congress.

If enacted, the SAFER Act would amend federal anti-discrimination laws in ways that would upend decades of legal precedent and threaten the civil liberties of students and faculty alike.

While there are numerous problems with the legislation, three of them stand out above the others.

The SAFER Act seeks to define sexual harassment in a way that would violate long-standing Supreme Court precedent and the First Amendment. The Supreme Court articulated a definition of discriminatory harassment in the educational context in a 1999 case, Davis v. Monroe County Board of Education. In an opinion authored by Justice Sandra Day O’Connor and joined by Justices Stevens, Souter, Ginsburg, and Breyer, the Court defined discriminatory harassment as 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.”

This speech-protective standard recognizes that federal anti-discrimination laws like Title IX must work in concert with the First Amendment. Courts have effectively used this standard to find in support of both students alleging that institutions failed to prevent prohibited harassment, and students alleging that their school violated the First Amendment by not adhering to this standard. Davis is still binding precedent, and it still protects students from both discriminatory harassment and censorship.'