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RenewingMinds
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Anti-harassment policy suffers setback in court
By Andrea Billups
THE WASHINGTON TIMES, 12
Feb. 2001
A federal appeals court ruled that a Pennsylvania
school district's anti-harassment policy was overbroad and
violated the rights of two Christian students who sought to speak out against
homosexuality in accordance with their beliefs.
In a 3-0 ruling
that is certain to be studied closely by school attorneys and districts around
the nation, many of which have crafted similar harassment policies, judges from
the 3rd Circuit Court of Appeals ruled that there was no
"harassment exemption" to the First Amendment's free-speech clause.
"No court or legislature has ever suggested that
unwelcome speech directed at another's 'values' may be prohibited under the
rubric of anti-discrimination,"
wrote the judges in their 29-page opinion.
"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. That speech about 'values' may offend is not cause for
its prohibition . . ." the judges ruled.
The decision is
binding in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands.
The ruling came in the case of David Warren Saxe, an associate professor of
education at Pennsylvania State University, who sued the 7,423-student State
College Area School District for its anti-harassment policy. Under the policy,
adopted by the district in 1999, students could be punished for making any
remarks at school that other students overheard and found to be offensive, based
on the district's definition of harassment.
Mr. Saxe serves as legal
guardian to the two students, who attend public schools in the district, and
brought the lawsuit on their behalf.
An attorney for Mr. Saxe called the
decision
"a tremendous blow against the political correctness
movement."
"This is a resounding bell of freedom ringing in
Philadelphia today reaffirming that indeed, students do not leave their First
Amendment rights at the schoolhouse gate," said Bryan J. Brown, an attorney for
the American Family Association Center for Law and Policy in Tupelo, Miss., who
represented Mr. Saxe.
"It's hard to get more Orwellian than the speech
code that was struck down," said Mr. Brown.
Attorneys for the school
district have not decided if they will appeal, but Mr. Brown said
he hopes they petition the Supreme Court to take the case because of the
importance of the issues involved.
Harassment has been an ongoing
concern for school districts around the country, many of which fear litigation
from parents if they fail to take action to protect children who report they
have been abused.
Mr. Saxe, a Republican who was appointed to the state
board of education by Gov. Tom Ridge, said he urged the State College school
board to reconsider the anti-harassment policy when they adopted it two years
ago, but they persisted, prompting his lawsuit.
"If any American
institution should teach about our constitutional rights and our sacred First
Amendment, it is the public school," said Mr. Saxe.
Since 1969, the
Supreme Court has said that schools can ban "lewd, vulgar or profane language,"
and regulate speech for a "legitimate pedagogical concern," wrote U.S. Circuit
Judge Samuel A. Alito Jr., who made the ruling along with Judge Marjorie O.
Rendell and Judge John M. Duhe Jr., a senior judge from the U.S. Court of
Appeals for the Fifth Circuit, who sat on the Third Circuit panel by
designation.
However, noted Judge Alito, "Speech falling outside of
these categories . . . may be regulated only it if would substantially disrupt
school operations or interfere with the rights of others."
Speaking from
his home yesterday, Mr. Saxe said he was pleased by the court's decision but
noted his intent in the lawsuit has been misrepresented.
"All I'm
hearing is this is about two kids who want to talk about homosexuality in
school. That is not true," he said. "I stand for the Constitution and its
principles. This lawsuit was about everyone's freedom of speech. I'm not using
the Constitution to attack gay people."
[Red and underline emphasis ours.]
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