Anti-Harassment Policies in Public Schools: Are They Vulnerable?
by Martha McCarthy, Ph.D.

In February 2001, the Third Circuit Court of Appeals rendered a surprising ruling, Saxe v. State College Area School District, striking down a Pennsylvania school district’s anti-harassment policy and thereby overturning the lower court’s decision. The policy defines harassment as “verbal or physical conduct based on one’s actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile, or offensive environment.” The policy gives specific examples of offending behaviors, such as slurs, graffiti and demeaning gestures.

Controversy arose because the plaintiffs feared reprisals under the policy for voicing their religious views about moral issues including the harmful effects of homosexuality. The federal district court reasoned that the policy did no more than bar conduct already impermissible under federal civil rights laws and thus ruled in favor of the school district. Disagreeing, the appeals court found the policy unconstitutionally over-broad and relied on cases from higher education and non-school settings. Although the Third Circuit acknowledged that the public school environment differs from other contexts as to speech protections, it did not seem to apply this distinction.

On several occasions the Supreme Court has recognized that to advance important government goals, student expression and behavior in public schools can be subjected to constraints that exceed those permissible on speech elsewhere. In addition to restrictions on inflammatory, obscene and libelous expression that have traditionally been upheld, school personnel can also prohibit student expression that is disruptive, lewd or vulgar; threatens the rights of others; or interferes with the school’s educational mission. Harassing speech or conduct among public school students would seem to fall within several of these prohibited categories.

To illustrate, if a student called a classmate derogatory names because of a disability, the remarks would be inconsistent with the school’s mission of inculcating basic democratic values, such as civility and respect for diversity. Similarly, if a student wrote racial slurs on a bathroom wall, the graffiti might be considered inflammatory or at least pose the threat of a disruption. However, the Third Circuit reasoned that the anti-harassment policy at issue prohibited a substantial amount of non-vulgar, non-school-sponsored student speech that would not lead to a disruption or interfere with the rights of other students. The court had particular problems with the “other personal characteristics” aspect of the policy, reasoning that this provision would allow individuals to be punished for almost any comments that someone might find offensive.

It remains to be seen whether the Third Circuit’s Saxe decision is simply an outlier among cases involving students’ expression rights or a harbinger of future rulings. If additional courts should strike down school districts’ similar anti-harassment policies, efforts to instill civil expression and conduct among public school students could be significantly affected.

Martha McCarthy, Ph.D. is the Chancellor Professor, School of Education, Indiana University.

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