G.  Court Strikes One Provision

of School Racial Harassment Policy

 

      The U.S. Court of Appeals for the Third Circuit continued to examine the constitutionality of high school racial harassment policies in 2002.  Last year, the appeals court determined that a Pennsylvania school district’s policy violated the First Amendment in Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001).  That policy prohibited “harassment … 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 broadly defined harassment to include “name calling, gestures, or circulation of written materials or pictures.”

      The Third Circuit determined that the policy violated the U.S. Supreme Court’s student-speech standard articulated in its 1969 decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  In Tinker, the Court determined that school officials could only censor student speech if they could reasonably forecast that the student speech would create a substantial disruption of school activities or invade the rights of others. 

      According to the Third Circuit in Saxe, the Pennsylvania school district failed to show how “the broad swath of student speech prohibited under the Policy” would lead to disruption.  Some commentators feared that this ruling could spell doom for racial harassment policies in high schools. 

 

Sypniewski v. Warren Hills Regional Board of Education  

      The Third Circuit examined another high school racial harassment policy in 2002 -- this time a policy from Warren Hills, N.J.  Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3rd Cir. 2002).  The policy provided:

 

District employees and student(s) shall not racially harass or intimidate other student(s) or employee(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice.  District employees and students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred.  (Examples: clothing, articles, material, publications or any item that denotes Ku Klux Klan, Arayan [sic] Nation-White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other “hate” group.  This list is not intended to be all inclusive.)

 

The district adapted its policy from one in Derby, Kan., ruled constitutional by the U.S. Court of Appeals for the Tenth Circuit.  West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th Cir. 2000) (student suspended for doodling a picture of the Confederate flag in math class).

 

Jeff Foxworthy T-Shirt

      Thomas Sypniewski -- along with his brothers Matthew and Brian -- challenged the policy after Thomas was suspended for three days from Warren Hills Regional High School for wearing a Jeff Foxworthy T-shirt bearing redneck jokes.  Mr. Foxworthy is a famous comedian known for his redneck jokes starting with the refrain “You might be a redneck if.…”  A school official determined that the T-shirt violated both the school’s dress code and racial harassment policy. 

      The brothers -- all of whom attended a Warren Hills middle school or high school (Thomas has since graduated) -- contended that both policies violated the First Amendment.  A federal district court denied the plaintiffs’ motion for a preliminary injunction of the racial harassment policy but granted it for a portion of the dress code.  The plaintiffs appealed to the Third Circuit solely on the racial harassment policy issue.  The Third Circuit thus identified its “sole concern [as] whether the Warren Hills School District can continue constitutionally to enforce the racial harassment policy.”

      The school adopted the racial harassment policy after a series of disturbing incidents.  For instance, a student dressed for Halloween costume day by wearing overall jeans and a straw hat and “appearing in black face”; a student filed a racial harassment complaint based on several students wearing Confederate flags; a group of students calling themselves the “Hicks” observed “White Power Wednesdays” by wearing Confederate flag clothing; students told racially offensive jokes downloaded from the Internet; a white student friendly with several African-American students was called “nigger lover”; and a fight occurred between a white and black student requiring stitches. 

      Because of the cumulative effect of these incidents, school officials responded with the racial harassment policy cited above.  The school argued that the shirt was racially offensive, given the history of racial violence at the school.  However, the appeals court determined that the wearing of the redneck shirt did not violate the racial harassment policy.

      The appeals court first examined whether the Foxworthy shirt violated the racial harassment policy.  The court said no, mainly because the redneck shirt did not cause any disruption at school.  School officials contended the shirt was offensive and potentially disruptive because in the context of the racial troubles at the school, the term “redneck” was a term synonymous with the student group known as the “Hicks.” 

      The court rejected this argument, noting that “there is little or no evidence that the word ‘redneck’ had been used to harass or intimidate, or otherwise to offend.”  The court reasoned: “The most that could be said, given the District Court’s findings on this issue, is that ‘redneck’ might come to be offensive.  Yet, this does not amount to a well-founded fear of disturbance, but merely an undifferentiated fear or remote apprehension of disturbance.”

      The court determined that the school district’s reasoning “could encompass country music and any number of things identifiably ‘country’” and that “the First Amendment would have little meaning if schools could go that far.”  Sypniewski, 307 F.3d at 257.

 

Racial Harassment Policy

      The court next addressed whether the racial harassment policy on its face was consistent with the First Amendment.  The court determined that part of the policy was unconstitutional -- the part stating that harassment includes material that “creates ill will.”   

      “Understood broadly, it seems likely there will be a good deal of speech that creates ‘ill will’ that does not substantially interfere with the rights of other students or with the operation of the school as an educational institution,” the court wrote.  In other words, the appeals court believed that the part of the policy prohibiting any speech or expression that creates ill will goes far beyond the Tinker “substantial disruption” standard.  The court explained:

 

What is required is that the school has a well-founded fear that the material at issue “would substantially disrupt or interfere with the work of the school or the rights of other students.”  Saxe, 240 F.3d at 211.  And disruption for purposes of Tinker must be more than “the discomfort and unpleasantness that always accompany an unpopular viewpoint.”  Tinker, 393 U.S. at 509.  As a general matter, protecting expression that gives rise to ill will -- and nothing more -- is at the core of the First Amendment.  Sypniewski, 307 F.3d at 265.    

 

      However, the court of appeals found that the rest of the racial harassment policy was constitutional in light of the specific racial problems at Warren Hills.  The court emphasized that it was the specific racial problems at the particular school in question that justified the policy.  Without those specific racial problems, the court said the policy would likely be unconstitutional: “This reliance on the background of turmoil at a particular place and a particular time means that the policy would likely be unconstitutional in another school district, or even in Warren Hills at a different time.”  Id. 

      The Sypniewski decision indicates that school officials -- at least those within the Third Circuit -- must carefully document incidents of racial tension at their schools before adopting a racial harassment policy.  The decision at least partly conflicts with the Tenth Circuit’s decision in West v. Derby Unified School District No. 260.  The Supreme Court has been called upon to clarify this muddled area of the law.  Warren Hills Regional Board of Education v. Sypniewski, petition for cert. filed, No. 02-1328 (U.S. Jan. 27, 2003). 

 

--David L. Hudson, Jr.