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Despite clear holdings in the case law counseling against this practice, those colleges and universities have applied “overbroad harassment rationales” against student expression simply because it is deemed to be offensive, disagreeable, or critical of another person or group, even though such speech falls well short of the legal standards for sexual and racial harassment. The Third Circuit’s recent ruling in is only the most recent in a line of cases, spanning the past two decades, which have uniformly struck down college and university harassment policies.[2] As a strongly worded federal circuit court decision, should send an unequivocal message to institution administrators, one which is much-needed in light of the misuse and abuse of harassment law that has long been a problem in the college and university setting.

This is somewhat surprising given the amount of coverage, both in legal scholarship and in mainstream media, on general free speech issues in higher education[14] and on the impact of harassment law in employment.[15] This article seeks to fill the gap in the legal scholarship by analyzing the restriction of speech and doctrinal difficulties created by the misapplication of peer harassment law in the college and university setting, the root causes of this misapplication, and the most logical methods for correcting the problem.

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This article will focus on peer harassment in higher education.

The doctrinal analysis and prescriptions I offer are directed solely toward the subject of peer harassment, as the issues raised by professor-on-student or employee-on-student harassment require a separate analysis.