Appellate court overturns school district policy banning harassing speech as ‘overbroad’

PENNSYLVANIA — A federal appeals court voted unanimously in Februaryto overturn a school district’s anti-harassment policy, claiming it violatedstudents’ First Amendment rights.

A three-judge panel of the U.S. Court of Appeals for the Third Circuitruled that the State College Area School District’s anti-harassment policy,which was implemented in 1999, was “overbroad” and “covered more speechthan could be prohibited.”

The policy prohibited harassment, defined by the school district asverbal or physical conduct based on race, religion, national origin, sexualorientation, age, gende, or “personal characteristics.” According to thepolicy, harassment could include “the display or circulation of writtenmaterial or pictures.”

“The policy, even narrowly read, prohibits a substantial amount of non-vulgar,non-sponsored student speech,” Judge Samuel A. Alito wrote in the decision.”Such speech, when it does not pose a realistic threat of substantial disruption,is within a student’s First Amendment rights.”

David Saxe, an assistant professor at Pennsylvania State Universityand member of the Pennsylvania State Board of Education, filed the lawsuitagainst the school district in October 1999 on behalf of two students.He appealed the case to the Third Circuit after a district court judgeruled that the policy did not violate students’ First Amendment rights.

“Any litigation like this is going to make you sad that you have tofight for the First Amendment,” said Saxe. “These are the rights that belongto everyone, and when the state starts to work on these rights and takeaway these rights it becomes a very serious matter.”

Saxe, who believes the school board should enforce the previous anti-harassmentpolicy, which excluded sexual orientation and personal characteristics,criticized the board for creating the new policy, saying it wants “to silenceany intellectual dissent.”

Superintendent Patricia Best, who said she was disappointed with thedecision, disagreed.

“The purpose of the policy was to provide a safe, secure environmentfor all students and to be very clear about standards of behavior withrespect to how students treat each other in a building,” Best said.

She added, “This was, in our view, a way to try and get at some of thebullying, and the difficulties that some of the children experience inschool, where they are made fun of or belittled for characteristics thatare not related to race or national origin.”

But Judge Alito said in the decision that “the mere desire to avoiddiscomfort or unpleasantness is not enough to justify restricting studentspeech.”

According to Best, the school district will not decide whether to appealthe decision until after it has reviewed and rewritten the policy withan attorney. She added that although the rewritten policy will includethe same objectives as the original, the school district would give seriousthought to the objections made by the court before drafting a new policy.

For More Information:

The Third Circuit’s decision in Saxe v. State College Area SchoolDistrict is available online at: