STATE COLLEGE, Pa. — A federal appeals court in
Philadelphia has overturned the State College Area School
District's anti-harassment policy, saying the policy violated the
free speech rights of students.
Yesterday's unanimous ruling by a three-judge panel of the 3rd
U.S. Circuit Court of Appeals will likely force hundreds of school
districts to reassess their own policies to ensure they comply with
The court, whose rulings are binding over federal judges in
Pennsylvania, New Jersey, Delaware and the Virgin Islands, ruled
that the school district went too far when it passed a policy in
August 1999 that broadly prohibited harassment based on everything
from race and sexual orientation to "other personal
characteristics," including clothing, appearance and social
"Although SCASD correctly asserts that it has a compelling
interest in promoting an education environment that is safe and
conducive to learning, 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," Judge
Samuel A. Alito wrote for the court.
Alito added that the policy "appears to cover substantially
more speech than could be prohibited" under existing U.S. Supreme
David Warren Saxe, a Penn State University assistant professor
and member of the state board of education, had sued the school
district in October 1999 on behalf of two students, for whom he is
"I'm really pleased with the decision," Saxe said last night. "But I'm also deeply saddened by the whole litigation. I'm
saddened that the very people we trust with the education of our
children, including my own four, they failed to serve this
Superintendent Patricia Best said she was disappointed with the
decision, but that she had not had a chance to review it with other
district officials or with the district's attorneys. Best said she
didn't know whether the district would appeal the ruling.
One expert told The Philadelphia Inquirer that the ruling could
have a sweeping impact.
"I don't know how many school districts have policies as broad
as State College's, but it is probably a significant number," said
Michael I. Levin, a lawyer for the Pennsylvania School Boards
Bryan J. Brown of the Mississippi-based American Family
Association Center for Law and Policy argued the case on behalf of
Saxe. He said there are many policies like State College's and
predicted "a lot of them are going to fall."
In his suit, Saxe said the policy would prohibit the two
students, who were not named in the suit, from expressing their
religious beliefs regarding homosexuality.
"They believe, and their religion teaches, that homosexuality
is a sin," the suit said. "Plaintiffs further believe that they
have a right to speak out about the sinful nature and harmful
effects of homosexuality."
The U.S. District Court rejected Saxe's suit, saying harassing
speech has never been protected under the free speech protection of
the First Amendment.
Although the 3rd Circuit agreed that the Supreme Court had
indicated several circumstances under which speech could be
regulated, the court found no blanket prohibition of speech simply
because it is harassing.
Alito wrote that such a "sweeping assertion" is "without
precedent in the decisions of the Supreme Court."
Saxe said the school district already had policies prohibiting
violence and other physical harassment in schools, but that the new
policy went too far.
"What this policy was about is the content of somebody's
speech," Saxe said, "and it chilled the First Amendment rights of
every child in that school, every teacher, every visitor."
Last year, Saxe filed a second lawsuit against the school
district, saying the winter holiday program at Corl Street
Elementary School presented Christmas as "a celebration unworthy
U.S. District Judge James J. McClure Jr. dismissed that suit in
November, but Saxe said he would appeal to the 3rd Circuit.