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In a decision that could affect many local school districts, a unanimous 3rd U.S. Circuit Court of Appeals panel has ruled that a State College, Pa., Area School District “anti-harassment” policy prohibiting both verbal and physical conduct is unconstitutionally overbroad and violates First Amendment freedom of speech rights. “There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs,” Judge Samuel Alito wrote in Saxe v. State College Area School District. Alito was joined in his decision by Senior Judge John M. Duhe Jr. of the 5th Circuit and Judge Marjorie Rendell, who filed a concurring opinion. David Saxe, a member of the Pennsylvania State Board of Education and a volunteer for the school district with two children enrolled in SCASD schools, filed suit against the school district in federal court after it adopted an anti-harassment policy in August 1999. The policy defines 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, … which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.” It continues: “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 material or pictures.” Saxe, who identifies himself and his children as Christian, alleged that the policy was both unconstitutionally vague and overly broad under the First Amendment’s freedom of speech provision. Under the policy, he said, his children could be punished for speaking out against homosexuality, which they believe to be a sin, or on other moral and religious issues. The policy considers harassment on the basis of sexual orientation to include “negative name calling and degrading behavior.” The policy, which applies to “any harassment of a student by a member of the school community,” establishes a list of punishments ranging from warning to expulsion or termination. Middle District Judge James F. McClure dismissed the action, finding that the policy did not prohibit “anything that is not already prohibited by law.” The standard for defining harassment that the policy employs is similar to the one used in Title VII, Title IX and Pennsylvania Human Relations Act cases, McClure said. “Harassment has never been considered to be protected activity under the First Amendment,” he added. The 3rd Circuit disagreed. NO ‘HARASSMENT EXCEPTION’ “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause. Moreover, the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law,” Alito said. “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.” Although McClure considered the policy to be “a tool which gives the SCASD the ability to take action itself against harassment which may subject it to civil liability,” the 3rd Circuit found the policy’s reach was far broader than current federal anti-discrimination laws. The policy prohibits harassment based not only on characteristics protected under federal law — sex, race, color, national origin, age and disability — but also harassment based on “other personal characteristics” such as “clothing,” “appearance,” “hobbies and values” and “social skills.” “Insofar as the policy attempts to prevent students from making negative comments about each others’ ‘appearance,’ ‘clothing’ and ‘social skills,’ it may be brave, futile or merely silly. But … 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, but rather reason for its protection,” Alito wrote. However, the court added: “We do not suggest, of course, that no application of anti-harassment law to expressive speech can survive First Amendment scrutiny. Certainly, preventing discrimination in the workplace — and in the schools — is not only a legitimate, but a compelling, government interest … . We simply note we have found no categorical rule that divests ‘harassing’ speech, as defined by federal anti-discrimination statutes, of First Amendment protection.” In her concurring opinion, Judge Marjorie Rendell separated herself from this analysis of anti-harassment law, voicing her strong disagreement that “judicial analysis of permissible restrictions on speech in a given setting should be affected — let alone dictated — by legislative enactments intended to proscribe activity that could be classified as ‘harassment.’ “ “[This case] is framed by appellants as a First Amendment speech case. Moreover, it is a school speech case. While reliance on provisions of harassment laws or policies might be an easy way to resolve difficult cases such as this one, therein lies the rub — there are no easy ways in the complex area of First Amendment jurisprudence.” ‘TINKER’ AND FREEDOM OF EXPRESSION A student’s right to freedom of expression while in school has been shaped by several U.S. Supreme Court cases, beginning with Tinker v. Des Moines Independent Community School District. That 1969 decision held that students wearing armbands in protest of the Vietnam War were exercising their free speech rights. It established that the regulation of student speech is permissible only when the speech would disrupt the school or interfere with the rights of other students. Later cases emphasized the need for fear of a “significant disruption.” Two other Supreme Court cases, Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier, carved out categories of speech that a school may restrict without this fear of disruption — a prohibition on lewd, vulgar or profane language and a regulation of school-sponsored speech for pedagogical reasons, respectively. All other speech, the 3rd Circuit said, falls under the Tinker rule: “It may be regulated only if it would substantially disrupt school operations or interfere with the right of others.” Reading the SCASD policy narrowly, the 3rd Circuit found “the policy would require the following elements before speech could be deemed harassing: (1) verbal or physical conduct (2) that is based on one’s actual or perceived personal characteristics and (3) that has the purpose or effect of either (3a) substantially interfering with a student’s educational performance or (3b) creating an intimidating, hostile, or offensive environment.” These elements, Alito said, do not confine themselves to speech that can be restricted under Fraser and Hazelwood. “SCASD must therefore satisfy the Tinker test … . Applying this test we conclude that the Policy is substantially overbroad.” The policy fails the test for punishing not only speech that disrupts but also speech that intends to, Alito explained, and the policy’s definition of harassment also does not meet the “substantial disruption” requirements of Tinker. And although the school district has a compelling interest in promoting a safe learning environment, “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.”

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