Pennsylvania appellate court overturns school district policy banning harassing speech

A federal appeals court in Pennsylvania voted unanimously Feb. 14 to overturn a school district's anti-harassment policy, claiming it violated students' First Amendment rights.

A three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that the State College Area School District's anti-harassment policy, which was implemented in 1999, was "overbroad" and "covered more speech than could be prohibited."

The policy prohibited harassment, defined by the school district as verbal or physical conduct based on race, religion, national origin, sexual orientation, age, gender, or "personal characteristics." According to the policy, harassment could include "the display or circulation of written material 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 University and member of the Pennsylvania State Board of Education, filed the lawsuit against the school district in October 1999 on behalf of two students. He appealed the case to the Third Circuit after a district court judge ruled that the policy did not violate students' First Amendment rights.

"Any litigation like this is going to make you sad that you have to fight for the First Amendment," said Saxe. "These are the rights that belong to everyone, and when the state starts to work on these rights and take away these rights it becomes a very serious matter."

Superintendent Patricia Best said she was disappointed with the decision.

"This was, in our view, a way to try and get at some of the bullying, and the difficulties that some of the children experience in school, where they are made fun of or belittled for characteristics that are not related to race or national origin."

But Judge Alito said in the decision that "the mere desire to avoid discomfort or unpleasantness is not enough to justify restricting student speech."

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

SPLC SENSE: This case adds to the growing number of cases that have struck down as unconstitutional school or campus "speech codes." While such codes are often adopted by those with good intentions, courts have consistently ruled that government bans on speech must be narrowly drawn using very precise, finely crafted language that does not outlaw protected speech in the process. For example, while most can understand the sentiments behind a ban on "harmful" or "insulting" language, such "squishy" terms, lacking a clear legal definition, could easily be misused by unscrupulous school officials to prohibit almost any speech. This case and others could prove very helpful to students, particularly those involved with non-school-sponsored or "underground" media, wishing to contest their own school policies, many of which are full of such vague, overly restrictive language.