Law & Courts

District’s Anti-Harassment Policy Too Broad, Court Rules

By Lisa Fine — February 28, 2001 3 min read

A federal appeals court in Pennsylvania has ruled that a school district’s anti-harassment policy was unconstitutional because it violated the First Amendment right of freedom of speech.

In a unanimous Feb. 14 opinion, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled that the State College Area School District’s policy was too broad and could potentially punish students for expressing their opinions.

The ruling stemmed from a lawsuit filed by the legal guardian of two students in the 7,400-student district, who said they feared the policy would punish them for expressing their religious belief that homosexuality is a sin. The opinion overturned a lower-court ruling that had upheld the policy on the grounds that harassment is not entitled to free-speech protection.

Adopted in 1999, the district’s policy defined harassment as verbal or physical conduct based on race, sex, national origin, sexual orientation, or other personal characteristics that had the effect of creating an intimidating or hostile environment.

The policy went further than those of most other districts, by providing examples of harassment that included jokes, name calling, graffiti, and innuendo, or making fun of a student’s clothing, social skills, or surname. The punishments for violations of the policy, which applied to the district’s students and employees, ranged from counseling to suspension, expulsion, or firing.

“The [district’s] policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law,” Judge Samuel A. Alito Jr. wrote in his opinion for the appellate panel.

Still, the opinion made clear that discrimination should be prevented at schools and in the workplace, an effort that Judge Alito described as a “compelling government interest.”

Going Too Far?

David Warren Saxe, who filed the suit on behalf of two students identified in court papers as Student Doe 1 and 2, argued that the district’s policy had created an environment in which students could not express opinions that opposed the popular “liberal” view.

“This victory represents the first blow to the politically correct movement that restricts freedom of speech,” said Mr. Saxe, a professor in Pennsylvania State University’s college of education and a member of the state board of education. “When you take out the emotional part that it is bad for someone to be teased, there’s the fact that the Constitution does not protect an individual from being offended.”

Mr. Saxe said he did not believe the court’s decision in the case, Saxe v. State College Area School District, would have a negative impact on gay students or others who could be targets of harassment. He said teachers and parents could prevent harassment by educating students about sensitivity and civility.

The head of a leading advocacy group for gay students agreed with the court’s decision, but stressed the necessity for anti-harassment policies.

“No one is well-served by policies that place an unreasonable restriction on free speech, that are indeed overly broad,” said Kevin Jennings, the executive director of the Gay, Lesbian, Straight Education Network, or GLSEN, based in New York City. “However, freedom of speech does not equal the freedom to harass, which is why anti-harassment policies remain a necessary and appropriate tool to ensure equal educational access for all.”

Larry Frankel, the director of the Pennsylvania chapter of the American Civil Liberties Union, agreed. “The fact is, schools have a responsibility to protect students from being harassed or threatened,” he said. “The State College policy just went much too far with restriction of verbal conduct.”

Superintendent Patricia Best of the State College district, which is located in the central part of the state and is home to Penn State’s main campus, said other schools should take their cue from the court’s decision and review their own policies.

“The decision certainly points out that there is a question mark in school districts’ minds about their obligations to provide a safe environment,” Ms. Best said. “The challenge is to create one that is conducive to free speech.”

The superintendent said the district would decide soon whether to appeal the decision.

“It’s the wording of the policy that we need to re- examine, not our goal of making sure all students are safe,” she said.

The ruling applies directly only to schools in the 3rd Circuit, which covers Pennsylvania, Delaware, and New Jersey.

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A version of this article appeared in the February 28, 2001 edition of Education Week as District’s Anti-Harassment Policy Too Broad, Court Rules

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