Securing Freedom from Harassment without Reducing Freedom of Speech: Doe v. University of Michigan
![handle is hein.journals/ilr76 and id is 401 raw text is: Securing Freedom from Harassment
Without Reducing Freedom of Speech:
Doe v. University of Michigan
Robin M. Hulshizer*
[Jiustice as fairness rests on the assumption of a natural right of all
men and women to equality of concern and respect, a right they possess not
by virtue of birth or characteristic or merit or excellence but simply as
human beings....1
Incidents of hate-related crime2 resulting from bigotry occur through-
out the country every day.3 Surprisingly, hate-driven violence and intimi-
*Law student, University of Iowa.
1. R. Dworkin, Taking Rights Seriously 182 (1978).
- 2. Hate-related crime refers to crime in which the perpetrator is motivated to inflict
mental or physical harm on a victim because that victim is perceived by the perpetrator to be
a member of a group against whom the perpetrator is prejudiced. The groups most often
victimized by such violence include those defined by age, disability, ethnicity, gender, national
origin, physical condition, political belief, race, religion, or sexual orientation. See Group
Violence in the U.S.A., National Institute Against Prejudice & Violence-Forum, Jan./Feb.
1990, at 5 (noting that the above groups are typically victims of group violence).
3. In response to evidence that crimes manifesting prejudice were on the rise, Congress
passed the Hate Crimes Statistics Act, Pub. L. No. 101-275, 104 Stat. 140 (1990). The purpose
of this Act is to establish a national data collection system for compilation of statistics regarding
crimes motivated by prejudice based on race, religion, sexual orientation, or ethnicity. Id. At
least two states have enacted similar legislation. See Iowa Code § 80A0 (West Supp. 1990)
(establishing program to collect statistics regarding crimes committed because of prejudice and
in violation of individual rights); 71 Pa. Cons. Stat. Ann. § 250 (Purdon Supp. 1987) (same);
see also They Don't All Wear Sheets: A Chronology of Racist and Far Right Violence- 1980-
1986 (C. Lutz comp. 1987) (compiling information about more than 3,000 incidents of bigoted
violence reported in the years 1980-1986); Weiss, Prejudice, Conflict, and Ethnoviolence: A
National Dilemma, U.S.A. Today, May 1989, at 27 (citing Anti-Defamation League of B'nai
B'rith report of 1,018 anti-Semitic incidents in 1987 and National Gay and Lesbian Task Force
report of 7,000 antigay incidents in 1986); Bigots' Crimes Called More Violent than Perceived,
Chicago Tribune, Mar. 28, 1989, at 3, col. 2 (citing a National Institute Against Prejudice and
Violence study finding that one out of four or five minority persons is the victim of
hate-related crime in the course of a year).
Many states have enacted statutes imposing heightened penalties for people convicted of
committing certain crimes motivated by prejudice. Hogan & Hartson, Striking Back at
Bigotry: Remedies Under Federal and State Law for Violence Motivated by Racial, Religious,
and Ethnic Prejudice 63 (1986 & Supp. 1988); see, e.g., Iowa Code § 729.5(3) (1989) (The fact
that a person committed a felony or misdemeanor.., because of the victim's race, color,
religion, ancestry, national origin, political affiliation, or sex, sexual orientation, age, or
disability, shall be considered a circumstance in aggravation of any crime in imposing sentence
[and fine].); Ill. Rev. Stat. ch. 38, para. 12-7.1 (1989) (similar); Mass. Gen. L. ch. 265, § 39
(1986) (similar); N.Y. Penal Law §§ 240.30-.31 (McKinney 1990) (similar); Or. Rev. Stat.
§§ 166.155, .165 (Supp. 1989) (similar); 18 Pa. Cons. Stat. Ann. § 2710 (Purdon 1983)
(similar); R.I. Gen. Laws § 11-42-3 (Supp. 1990) (similar); Wash. Rev. Code § 9A.36.080
(1987) (similar).](ViewImageLocal?handle=hein.journals/ilr76&div=24&collection=&method=preview&ext=.png&size=3)
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Securing Freedom from Harassment without Reducing Freedom of Speech: Doe v. University of Michigan
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