School anti-harassment policy overturned

By The Associated Press

02.15.01

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STATE COLLEGE, Pa. — A federal appeals court in Philadelphia has overturned the State College Area School District's anti-harassment policy, saying the policy violated the free speech rights of students.

Yesterday's unanimous ruling by a three-judge panel of the 3rd U.S. Circuit Court of Appeals will likely force hundreds of school districts to reassess their own policies to ensure they comply with the ruling.

The court, whose rulings are binding over federal judges in Pennsylvania, New Jersey, Delaware and the Virgin Islands, ruled that the school district went too far when it passed a policy in August 1999 that broadly prohibited harassment based on everything from race and sexual orientation to "other personal characteristics," including clothing, appearance and social skills.

"Although SCASD correctly asserts that it has a compelling interest in promoting an education environment that is safe and conducive to learning, it fails to provide any particularized reason as to why it anticipates substantial disruption from the broad swath of student speech prohibited under the policy," Judge Samuel A. Alito wrote for the court.

Alito added that the policy "appears to cover substantially more speech than could be prohibited" under existing U.S. Supreme Court precedents.

David Warren Saxe, a Penn State University assistant professor and member of the state board of education, had sued the school district in October 1999 on behalf of two students, for whom he is legal guardian.

"I'm really pleased with the decision," Saxe said last night. "But I'm also deeply saddened by the whole litigation. I'm saddened that the very people we trust with the education of our children, including my own four, they failed to serve this community."

Superintendent Patricia Best said she was disappointed with the decision, but that she had not had a chance to review it with other district officials or with the district's attorneys. Best said she didn't know whether the district would appeal the ruling.

One expert told The Philadelphia Inquirer that the ruling could have a sweeping impact.

"I don't know how many school districts have policies as broad as State College's, but it is probably a significant number," said Michael I. Levin, a lawyer for the Pennsylvania School Boards Association.

Bryan J. Brown of the Mississippi-based American Family Association Center for Law and Policy argued the case on behalf of Saxe. He said there are many policies like State College's and predicted "a lot of them are going to fall."

In his suit, Saxe said the policy would prohibit the two students, who were not named in the suit, from expressing their religious beliefs regarding homosexuality.

"They believe, and their religion teaches, that homosexuality is a sin," the suit said. "Plaintiffs further believe that they have a right to speak out about the sinful nature and harmful effects of homosexuality."

The U.S. District Court rejected Saxe's suit, saying harassing speech has never been protected under the free speech protection of the First Amendment.

Although the 3rd Circuit agreed that the Supreme Court had indicated several circumstances under which speech could be regulated, the court found no blanket prohibition of speech simply because it is harassing.

Alito wrote that such a "sweeping assertion" is "without precedent in the decisions of the Supreme Court."

Saxe said the school district already had policies prohibiting violence and other physical harassment in schools, but that the new policy went too far.

"What this policy was about is the content of somebody's speech," Saxe said, "and it chilled the First Amendment rights of every child in that school, every teacher, every visitor."

Last year, Saxe filed a second lawsuit against the school district, saying the winter holiday program at Corl Street Elementary School presented Christmas as "a celebration unworthy of respect."

U.S. District Judge James J. McClure Jr. dismissed that suit in November, but Saxe said he would appeal to the 3rd Circuit.