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Saturday, June 21, 2008

Pennsylvania has already shown us how

Saxe v. State College Area School District


Summary: The guardian for two students challenged a school district's anti-harassment policy, contending it violated their First Amendment rights. From a free speech perspective, the guardian held that the policy prohibited students and other citizens from voicing opinions that were constitutionally protected.
Background Information: Fearing that the directors of the State College Area School Board would not listen to their concerns about the Board's proposed anti-harassment policy, a group of local parents approached David Saxe, a Member of the Pennsylvania State Board of Education, to present their objections. The Board, however, did not respond. Three months later, the Board scheduled a "town meeting" to attend to the growing dissent over the proposed policy. Dr. Saxe again attempted to persuade the School Board to revise the policy. He was, however, denied the opportunity when the School Board removed his name from the official speakers list claiming that the list of speakers was too long. In order to limit the number of speakers, the Board held a lottery; Dr. Saxe was not selected as a speaker.
Setting the stage for a legal challenge, a month later the School Board passed the policy without revision or recognition of the policy's Constitutional flaws as suggested by Dr. Saxe in his initial presentation to the Board or in subsequent media presentations.
In specific, the policy provided several examples of harassment, including: "any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual" because of "race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics." Essentially, any comment/action that was deemed offensive could invoke penalties. The policy protected all individuals in the school and also applied to comments/action of any individual directed at students or school personnel on or outside of school property. The broad and sweeping character of the policy attracted the attention of Constitutional specialists from the legal department of the American Family Association.
Believing they had found an ideal test case to expose unconstitutional attempts to curb student speech, AFA lawyers visited State College to discuss legal options with parents. Aligned to the case's First Amendment concerns, David Saxe agreed to take the lead position with the litigation.
The District Court at Williamsport supported the School Board's policy. Saxe then appealed to the Third Circuit Court of Appeals seated in Philadelphia.

In a 3-0 decision, the panel held that such a broadly worded policy prohibits too much speech and violates the First Amendment.
The court held that the policy prohibits a substantial amount of speech that is neither vulgar within the meaning of the Fraser standard nor school-sponsored within the meaning of the Hazelwood standard. It even prohibits speech that harasses someone based on "clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies, or values."
The policy must be judged under the Tinker "substantial disruption" test. This policy could essentially be applied to any speech that another might find offensive. "This could include much 'core' political and religious speech," the panel wrote. "The policy, then, appears to cover substantially more speech than could be prohibited under Tinker’s substantial disruption test."
No college, under this legal decision, could successfully be sued for failing to prohibit such speech. Indeed, public campuses are subject to legal liability for failing to protect the First Amendment rights of students. Private campuses that claimed that they believed in free speech but were forced, by law, to restrict it, now can honor their commitment. In short, all campuses now have a strong incentive to abolish such codes.
This decision is consistent with the holdings of virtually every other federal appellate court faced with a similar question. The Third Circuit went farther than any other court, however, in drawing the line between legally sanctionable true "harassment" and speech that, because of its unpopularity, is deemed "harassment" by school administrators. Although "non-expressive, physically harassing conduct is entirely outside the gambit of the free speech clause," the Court held, "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." Warning school authorities against the use of "harassment" codes to silence speech, the Court noted that "where pure expression is involved, anti-discrimination laws steer into the territory of the First Amendment."
The Court made clear that harassment laws purporting to prohibit verbal activity "that objectively denies a student equal access to a school's educational resources"—the purpose claimed by proponents of academic speech codes—are not constitutional when what they actually do is prohibit speech seen as offensive by those who disagree with or are annoyed by it. Furthermore, the claim that the government has the power to curtail speech when it is likely to produce "a specific and significant fear of disruption" cannot justify the banning of offensive speech in a free society that is protected by the First Amendment. As the Court ruled: "The Supreme Court has held time and again, both within and outside the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it."

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