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Free-Speech Ruling Voids
School District's Harassment Policy

by Kate Zernike (New York Times)
published in 2000

In a decision with potentially wide reverberations for school districts, a federal appeals court in Pennsylvania has ruled that a district's anti-harassment policy violated the First Amendment right of free speech.

A three-judge panel for the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled unanimously on Wednesday that the policy of the State College Area School District was vague and overbroad and would punish students for "simple acts of teasing and name calling."

The ruling came in a lawsuit by two students who said they feared punishment if they expressed their religious belief that homosexuality is a sin.

The district defined harassment as verbal or physical conduct based on race, sex, national origin, sexual orientation or other personal characteristics that has the effect of creating an intimidating or hostile environment. As examples of harassment, the policy included jokes, name-calling, graffiti and innuendo, as well as making fun of a student's clothing, social skills or surname.

Around the country, many districts have adopted policies to protect students from harassment and themselves from litigation, but it is unclear how many are as sweeping as the one in State College, home of Pennsylvania State University.

The State College school board, which oversees a student body of about 7,420 students, adopted its policy in August 1999 and applied it to all students and staff. Punishments ranged from counseling and warning to suspension, expulsion and firing.

David B. Consiglio, a lawyer for the district, said, "The motivation is the same motivation as in all their policies, which is to foster a safe and orderly school environment, which is as conducive as possible to good learning."

David Warren Saxe, a Penn State professor, member of the State Board of Education and legal guardian of two students in the school district, sued on behalf of the two. Mr. Saxe said that their religion taught that homosexuality was a sin and that the school board's policy interfered with their right to speak out about their religious beliefs.

A district court upheld the policy, saying it was no more broad than the policies that the federal government and many state agencies have adopted. The federal, appeals court overturned that ruling,' saying the policy was, far broader because it prohibited "a substantial amount of Speech that would not constitute actionable harassment under either federal or state law."

Judge Samuel A. Alito Jr. noted in the decision that previous courts had ruled that harassment statutes were not violated by epithets that injured someone's feelings, or mere "discourtesy and rudeness."

Judge Alito nonetheless made clear that preventing discrimination in schools and in the workplace was "not only a legitimate, but a compelling, government interest."

Mr. Saxe said yesterday that the board's policy "criminalized free speech."

"You could say something and have no idea you were being offensive, and be punished," he said. "How can we act as citizens under those conditions?"

Mr. Saxe said he believed that the district was trying to promote homosexuality. He first got involved with the schools, he said, after he and a group of parents objected to the schools' showing a film that he said depicted "a positive look at how teachers deal with homosexuality."

The anti-harassment policy, he said, was the board's effort to silence parents who objected to the film.

"They wanted to promote their liberal agenda in the public schools," Mr. Saxe said, adding that existing laws protected students from bullying or sexual harassment.

Mr. Consiglio said the school board would consider whether to appeal or change its policy after reading the decision more closely.

See Article: Local woman's reaction to police profiling in Bellingham, WA.