240 F.3d 200 (3rd Cir. 2001), 99-4081, Saxe v State College Area School District

Docket Nº:99-4081
Citation:240 F.3d 200
Party Name:DAVID WARREN SAXE; STUDENT DOE 1, BY AND THROUGH HIS NEXT FRIEND, DAVID WARREN SAXE; STUDENT DOE 2, BY AND THROUGH HIS NEXT FRIEND, DAVID WARREN SAXE, APPELLANTS V. STATE COLLEGE AREA SCHOOL DISTRICT; CONSTANCE MARTIN, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE STATE COLLEGE AREA SCHOOL DISTRICT
Case Date:February 14, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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240 F.3d 200 (3rd Cir. 2001)

DAVID WARREN SAXE; STUDENT DOE 1, BY AND THROUGH HIS NEXT FRIEND, DAVID WARREN SAXE; STUDENT DOE 2, BY AND THROUGH HIS NEXT FRIEND, DAVID WARREN SAXE, APPELLANTS

V.

STATE COLLEGE AREA SCHOOL DISTRICT; CONSTANCE MARTIN, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE STATE COLLEGE AREA SCHOOL DISTRICT

No. 99-4081

United States Court of Appeals, Third Circuit

February 14, 2001

Argued: May 23, 2000

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA District Court Judge: James F. McClure, Jr. (Dist. Court No. 99-CV-01757)

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[Copyrighted Material Omitted]

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Bryan J. Brown (Argued) Stephen M. Crampton Brian Fahling Michael J. Deprimo Afa Center for Law and Policy P.O. Box 2440 100 Parkgate Drive, Suite 2-b Tupelo, MS 38803, Scott Williams P.O. Box 357 East 4th Street Williamsport, PA 17701, Counsel for Appellants

John R. Miller, Jr., David B. Consiglio (Argued) Miller, Kistler, Campbell, Miller, Williams & Benson, Inc. 720 South Atherton Street State College, PA 16801, Counsel for Appellees

Before: Alito, Rendell, and DUHE,[*] Circuit Judges.

OPINION OF THE COURT

Alito, Circuit Judge

The plaintiffs in this case challenge the constitutionality of a public school district's "anti-harassment" policy, arguing that it violates the First Amendment's guarantee of freedom of speech.1 The District Court, concluding that the policy prohibited no more speech than was already unlawful under federal and state anti-discrimination laws, held that the policy is constitutional and entered judgment for the school district. We reverse.

I.

A.

In August 1999, the State College Area School District ("SCASD") adopted an Anti-Harassment Policy ("the Policy"). The full text of the Policy is reproduced in the Appendix to this opinion; we will briefly review the most relevant portions here.

The Policy begins by setting forth its goal--"providing all students with a safe, secure, and nurturing school environment"--and noting that "[d]isrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual." The second paragraph contains what appears to be the Policy's operative definition of harassment:

Harassment means 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 continues by providing several examples of "harassment":

Harassment can include any unwelcome verbal, written or physical conduct

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which offends, denigrates or belittles an individual because of any of the characteristics described above. Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display or circulation of written material or pictures.

These examples are followed by a lengthy section captioned "Definitions," which defines various types of prohibited harassment, including "Sexual harassment," "Racial and color harassment," "Harassment on the basis of religion," "Harassment based on national origin," "Disability harassment," and "Other harassment" on the basis of characteristics such as "clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values, etc." The definitions state that harassment "can include unwelcome verbal, written or physical conduct directed at" the particular characteristic. Examples of specific types of harassment are also provided. For example, "Racial and color harassment" is said to include "nicknames emphasizing stereotypes, racial slurs, comments on manner of speaking, and negative references to racial customs." Religious harassment reaches "derogatory comments regarding surnames, religious tradition, or religious clothing, or religious slurs or graffiti." National origins harassment includes "negative comments regarding surnames, manner of speaking, customs, language, or ethnic slurs." Harassment on the basis of sexual orientation extends to "negative name calling and degrading behavior." Disability harassment encompasses "imitating manner of speech or movement."

The Policy provides that "[a]ny harassment of a student by a member of the school community is a violation of this policy."2 It establishes procedures for the reporting, informal mediation, and formal resolution of complaints. In addition, the Policy sets a list of punishments for harassment, "including but not limited to warning, exclusion, suspension, expulsion, transfer, termination, discharge..., training, education, or counseling."

B.

Plaintiff David Saxe is a member of the Pennsylvania State Board of Education and serves as an unpaid volunteer for SCASD. He is the legal guardian of both student-plaintiffs, who are enrolled in SCASD schools. After the Anti-Harassment Policy was adopted, Saxe filed suit in District Court, alleging that the Policy was facially unconstitutional under the First Amendment's free speech clause.3 In his Complaint, he alleged that

[a]ll Plaintiffs openly and sincerely identify themselves as Christians. They believe, and their religion teaches, that homosexuality is a sin. Plaintiffs further believe that they have a right to speak out about the sinful nature and harmful effects of homosexuality. Plaintiffs also feel compelled by their religion to speak out on other topics, especially moral issues.

(App. 27.) Plaintiffs further alleged that they feared that they were likely to be punished under the Policy for speaking out about their religious beliefs, engaging in symbolic activities reflecting those beliefs, and distributing religious literature. (App. 27-28.) They sought to have the Policy declared unconstitutionally vague and

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overbroad and its operation permanently enjoined.

The District Court found that Saxe had standing to mount a facial challenge but granted SCASD's motion to dismiss on the pleadings, holding that the Policy was facially constitutional. See Saxe v. State College Area School District, 77 F.Supp.2d 621 (M.D. Pa. 1999). The Court found that the Policy's operative definition of harassment was contained in its second paragraph, which, as the Court read it, prohibited "language or conduct which is based on specified characteristics and which has the effect of `substantially interfering with a student's educational performance' or which creates a hostile educational atmosphere." Id. at 625. The Court went on to observe that this standard is similar to "that used by courts and agencies to define harassment for purposes of Title VII, Title IX, the Pennsylvania Human Relations Act, etc." Id. Consequently, the Court held that the Policy does not prohibit "anything that is not already prohibited by law" and therefore cannot be unconstitutional. Id. at 626. Rejecting the plaintiffs' vagueness argument, the Court asserted that "a more precise definition of harassment, like Justice Stewart's famous description of `pornography,' may be virtually impossible." Id. at 625. Plaintiffs appealed.

II.

The District Court dismissed the plaintiffs' free speech claims based on its conclusion that "harassment," as defined by federal and state anti-discrimination statutes, is not entitled to First Amendment protection. The Court rejected the plaintiffs' characterization of the Policy as a "hate speech code," holding instead that it merely prohibits harassment that is already unlawful under state and federal law. The Court observed:

Harassment has never been considered to be protected activity under the First Amendment. In fact, the harassment prohibited under the Policy already is unlawful. The Policy is a tool which gives SCASD the ability to take action itself against harassment which may subject it to civil liability.

Saxe, 77 F.Supp.2d at 627.

We disagree with the District Court's reasoning. There is no categorical "harassment exception" to the First Amendment's free speech clause. Moreover, the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.

A.

Because the District Court based its holding on a determination that the Policy simply replicated existing law, we begin by briefly reviewing the scope of the applicable anti-harassment statutes. At the federal level, discriminatory harassment in the public schools is governed primarily by two statutes. Title VI of the Civil Rights Act of 1964 provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Title IX of the Education Amendments of 1972 further provides that "[n]o person... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance." 20 U.S.C. § 1681(a). Although less often involved in harassment cases, the Rehabilitation Act of 1973, 29 U.S.C. S 794, makes it unlawful for programs receiving federal assistance to discriminate on the basis of disability or age.4

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The federal courts have held that these statutes create a private...

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