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School ruled too strict

Decision striking down anti-harassment code could force changes in other districts

Friday, February 16, 2001

By Jane Elizabeth and Eleanor Chute, Post-Gazette Education Writers

In a ruling with statewide repercussions, a federal appeals court has struck down the State College Area School District's anti-harassment policy, saying it violates students' free-speech rights.

A sampling of policy's restrictions

Here is an excerpt from the State College Area School District's anti-harassment policy, overturned as unconstitutional this week by a federal appeals court:

"Sexual harassment can include unwelcome verbal, written or physical conduct, directed at or related to a person's gender, such as sexual gossip or personal comments of a sexual nature, sexually suggestive or foul language, sexual jokes, whistling, spreading rumors or lies of a sexual nature about someone, demanding sexual favors, forcing sexual activity by threat of punishment or offer of educational reward, obscene graffiti, display or sending of pornographic pictures or objects, offensive touching, pinching, grabbing, kissing or hugging or restraining someone's movement in a sexual way.

"Racial and color harassment can include unwelcome verbal, written or physical conduct directed at the characteristics of a person's race or color, such as nicknames emphasizing stereotypes, racial slurs, comments on manner of speaking, and negative reference to racial customs."


School districts throughout Pennsylvania have adopted policies similar to the one invalidated Wednesday. The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that the district went too far in seeking to prohibit students from harassing one another based on race, sexual orientation, gender or appearance.

Judge Samuel A. Alito Jr., writing for a three-judge panel, said although school officials correctly maintained that they had a duty to keep classrooms safe and conducive to learning, the district "failed to show why it anticipates substantial disruption from the broad swath of student speech prohibited under the policy."

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

Locally, school districts have been designing, approving and printing harassment policies in student handbooks for the past several months.

Their efforts to subdue name-calling, teasing and taunting generally began after the April 1999 deaths of 15 people at Columbine High School in Colorado. Two high school juniors killed 12 students and a teacher before turning the guns on themselves, and students later said that the two boys dressed oddly and had been harassed by other students.

In the State College case, David Warren Saxe, a Penn State University assistant professor of education and member of the state Board of Education, sued in October 1999 on behalf of two students for whom he is legal guardian.

He said that under the State College harassment policy, the two students would be prohibited from expressing their religious beliefs against homosexuality.

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

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

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

State College officials said they were disappointed and had not decided whether to appeal.

Bryan J. Brown of the Mississippi-based American Family Association Center for Law and Policy argued the case on behalf of Saxe.

The center provides legal representation to Christians on First Amendment free speech and free exercise rights and anti-pornography and anti-obscenity initiatives.

Brown said there are many policies like State College's and predicted "a lot of them are going to fall."

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

Area school officials said yesterday that they planned to review their harassment policies, many of which are part of school safety rules, to see if changes are needed.

"We're definitely going to have to study [our policy]," said Philip Parr, chief of staff for the Pittsburgh school district. But he said the State College policy appeared "far more encompassing."

Pittsburgh's policy "precludes invidious discrimination on the basis of race, gender, religion, age, national origin, disability, sexual orientation or socioeconomic background."

Joy Ed, spokeswoman for the North Allegheny School District, said a management team would review the district's policy.

Linda Andreassi, spokeswoman for the Seneca Valley School District, said she did not believe the case applied to its policies on racial and ethnic intimidation and sexual harassment. "Neither goes into discussion about clothing, appearance or social skills," she said.

Woodland Hills School District spokeswoman Patricia Dawson said the district hadn't yet reviewed the appeals court's decision.

The district's policy was revised in January 2000 to "take a very strong line on any type of harassment, including racial, sexual and ethnic. We have the same anti-harassment policy for staff, so it also includes age."

Matthew Hoffman, solicitor for several area school districts, including Seneca Valley, East Allegheny, Wilkinsburg and Sto-Rox, said he will review the policies of school boards he represents.

"The primary lesson of the case is that school districts need to refrain from using over-broad policy statements to legislate against student-to-student harassment," he said.

"I don't think the opinion in any way diminishes a school district's ability to discipline particular speech or conduct that has a systemic effect of interfering with another student's education or substantially interferes [with] or disrupts the educational environment."

Ira Weiss, solicitor for Montour and West Jefferson Hills school districts, said the case conforms with Tinker vs. Des Moines, a Vietnam-era case in which the Supreme Court sided with students who wore black armbands to school to protest the war.

The court ruled that students don't forfeit "their constitutional rights to freedom of speech or expression at the schoolhouse gate."

"I think in many ways it's a recognition by the courts that public schools are an extension of the world around them and they can't be a world apart," he said. "I think the important thing is that if you want to live in a society that allows free speech, some people are going to be aggravated some of the time."

To view the appeals court ruling on the Internet, go to and click on "recent opinions."

The Associated Press and Post-Gazette staff writers Rhonda Miller and Pamela R. Winnick contributed to this report.

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