Appeals Court Affirms Students' Free Speech -- April 2001 Education Reporter

Appeals Court Affirms Students' Free Speech

Brian Brown

PHILADELPHIA, PA - A Feb. 14 decision by the Third U.S. Circuit Court of Appeals in Pennsylvania held that the State College Area School District's (SCASD) anti-harassment policy is "overbroad" and violates the First Amendment right of free speech. The suit was filed by David Saxe, a member of the Pennsylvania State Board of Education who is also an unpaid volunteer for the 7,423-student SCASD. Saxe acted as legal guardian for two Christian student-plaintiffs, who feared punishment under the policy for speaking out against the "sinful nature and harmful effects of homosexuality." Because the policy prohibited negative speech about another's "values," the students further feared censure for engaging in "symbolic activities" reflecting their religious beliefs and for distributing religious literature.

In ruling for the plaintiffs, the three-judge panel unanimously found no "harassment exemption" to the First Amendment's free-speech clause. The court specifically objected to the policy's inclusion of a "catch-all" category called "other personal characteristics," which covered appearance, clothing, hobbies, values, and social skills.

"By prohibiting disparaging speech directed at a person's 'values,' the policy strikes at the heart of moral and political discourse - the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment," the court ruled in its 29-page opinion. "That speech about 'values' may offend is not cause for its prohibition, but rather the reason for its protection: a principal function of free speech under our system of government is to invite dispute. No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination."

Saxe was represented by Attorney Brian J. Brown of the American Family Association Center for Law and Policy in Tupelo, Miss. Brown told the Washington Times (2-16-01) after the ruling: "This is a resounding bell of freedom ringing in Philadelphia, reaffirming that indeed, students do not leave their First Amendment rights at the schoolhouse gate. It's hard to get more Orwellian than the speech code that was struck down."

The decision is binding in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, but is expected to have national implications since many school districts across the country have adopted anti-harassment policies.




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