I. Third Circuit Strikes School Anti-Harassment Speech Code

    Many school districts and legislatures have begun regulating student speech in the hope of providing a safer learning environment.  Several states have considered or passed legislation designed to curtail bullying in schools.  In 2001, the Colorado legislature passed a bill that requires school districts to adopt anti-bullying policies. In March 2002, the Washington legislature passed a similar measure.

     In a ruling that could spell doom for speech codes at public high schools, however, the U.S. Court of Appeals for the Third Circuit struck down a Pennsylvania school district anti-harassment policy on First Amendment grounds.  Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001).

     Because several of the young killers in recent school shootings apparently acted after being the victims of ridicule by other students, officials in many locales have been trying to encourage more civility among students.  While few would criticize such well-meaning attempts, some schools may have gone too far in adopting harassment policies that forbid uncivil remarks. 

     In August 1999, the State College Area School District in Pennsylvania adopted an anti-harassment policy.  The policy sought to provide students “with a safe, secure, and nurturing school environment.”  It said that “disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual.”

     The policy defined harassment as “verbal or physical conduct based on one’s actual or perceived race, religion, color, national origin, gender, sexual orientation, disability or other personal characteristics, and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.”

     The policy gave several examples:  

Harassment can include any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above.  Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display or circulation of written materials or pictures.

Another section of the policy prohibited harassment on the basis of characteristics such as “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values.”

     Two students, through their legal guardian David Saxe (a member of the Pennsylvania State Board of Education), challenged the policy in federal court.  They argued that the policy violated the First Amendment on its face.  The students claimed that the policy infringed on their ability to speak their religious belief that homosexuality was a sin.

     The district court dismissed Mr. Saxe’s challenge, finding that the policy was facially constitutional.  Saxe v. State College Area School District, 77 F. Supp. 2d 621 (M.D. Pa. 1999).  The district court reasoned that the policy’s definition of harassment was similar to the standard for harassment under federal civil rights laws, Title VII and Title IX, and the Pennsylvania Human Relations Act.  The district court wrote that “harassment has never been considered to be protected activity under the First Amendment.”

     On appeal, a three-judge panel of the Third Circuit reversed, taking particular exception to the district court’s statement that harassment is never protected under the First Amendment.

     “The District Court’s categorical pronouncement exaggerates the current state of the law in this area,” the appeals panel wrote.  “Such a categorical rule is without precedent in the decisions of the Supreme Court or this Court, and it belies the very real tension between anti-harassment laws and the Constitution’s guarantee of freedom of speech.”

     The Third Circuit noted that the anti-harassment policy prohibited harassment on “other personal characteristics” not protected under federal civil rights law, including “appearance, clothing, and social skills.”  The court determined this policy simply went too far under the Constitution.  “By prohibiting disparaging speech directed at a person’s ‘values,’ the Policy strikes at the heart of moral and political discourse -- the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment,” the court wrote.

     The school district sought to justify the policy under the U.S. Supreme Court’s student expression cases of Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).  In Fraser, the Supreme Court ruled that a school district could punish a student for giving a lewd speech before a student assembly.  Many lower courts have interpreted Fraser as allowing school officials to prohibit lewd and plainly offensive student language.  In Hazelwood, the Supreme Court said that a school could censor school-sponsored student expression if school officials had a legitimate educational reason for their decision.

     The Third Circuit reasoned that the policy covered more speech than school officials could prohibit under Fraser and Hazelwood.  “The policy’s scope is clearly broader,” the court concluded, than the Fraser standard of vulgar and lewd speech.  The policy also clearly affects more speech than the Hazelwood standard, because it applies to all student speech, not just to school-sponsored student expression, the court said.

     The appeals court determined that the school must justify its policy under the Court’s 1969 student free-speech case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  In Tinker, the High Court ruled that school officials could not censor student expression unless they could reasonably forecast that the student expression would cause a substantial disruption of school activities or invade the rights of others.  The appeals court determined that the Pennsylvania policy swept too broadly to be justified under Tinker’s substantial disruption standard.

     The Third Circuit wrote that the policy “fails to provide any particularized reason as to why it anticipates substantial disruption from the broad swath of student speech prohibited under the Policy.”  The panel pointed out that the policy could prohibit “core political and religious speech” that does not create a substantial disruption but merely offends another student.

     Kevin O’Shea, publisher of the monthly legal newsletter First Amendment Rights in Education, says the decision is troubling.  In his March 2001 issue, he wrote that “the ruling creates even more confusion regarding the appropriate standard for determining how far is too far when it comes to the rights of public school students under the Free Speech Clause of the First Amendment.”  

     At the college level, many speech codes have been struck down on First Amendment grounds.  Mr. O’Shea predicts that “we could very well be witnessing the initial stages of a similar phenomenon in public elementary and secondary schools.”   

-- David L. Hudson, Jr.