Only Sticks and Stones?

Abstract

IN AUGUST 1999 the State College Area School District, which in central Pennsylvania, adopted detailed, multi-page anti-harassment policy that prohibited any verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, or personal and which has the purpose or effect of substantially interfering with student's educational performance or creating an intimidating, hostile, or offensive environment. The policy listed various examples not only of the other personal characteristics, such as physical appearance and values, but also of the prohibited conduct, including unsolicited derogatory remarks, jokes, demeaning comments . . . , slurs, . . . name calling, graffiti, . . . bullying, . . . or circulation of written material or pictures that are unwelcome and that are based on the specified characteristics. The policy also specified set of sanctions for any member of the school community who violated the policy, including warning, . . . suspension, expulsion, . . . termination . . . , training, . . . or counseling. By the policy's terms, the school community includes not only students and employees but also unpaid volunteers, contractors, and visitors. David Saxe, an education professor at Penn State University and member of the state board of education, also an unpaid volunteer and former school board member for the district. He the legal guardian of two students in the district. On 4 October 1999, he filed suit in federal court, alleging that he and the two children are Christians . . . [who] believe, and their religion teaches, that homosexuality sin . . . [and who] further believe that they have right to speak out about the sinful nature and harmful effects of homosexuality . . . [and] to speak about . . . [other] moral issues. He claimed that the anti-harassment policy was unconstitutionally overbroad and vague. On 17 December 1999, the federal district court summarily disposed of Saxe's suit, concluding that the district's policy was constitutional. The court first concluded that the policy was not overbroad, reasoning that the harassment prohibited by the policy unlawful under state and federal civil rights laws and not protected by the First Amendment. Second, the court rejected Saxe's vagueness challenge on the basis that a more precise definition of harassment, like Justice Stewart's famous description of 'pornography,' may be virtually impossible. Saxe appealed. On 14 February 2001, the Third Circuit Court of Appeals, in 3-to-0 decision, reversed the trial court's judgment, concluding that the district's anti-harassment policy was overbroad, in violation of First Amendment freedom of expression.1 Having found the policy fatally flawed on this ground, the appellate court did not rule on the issue of vagueness. As preview to its detailed analysis of the issue of overbreadth, the appellate court announced that the trial court's categorical pronouncement exaggerates the current state of the law. The rest of the Third Circuit's relatively thorough opinion may be summarized in two steps. First, while admitting that the Supreme Court has not definitively settled whether - and, if so, in what form - pure, harassing expression beyond First Amendment protection, the Third Circuit explained that long line of precedents makes clear that some forms and degrees of harassing expression are clearly within the First Amendment's core protection against discrimination based on content or viewpoint. The bedrock principle, the appeals court explained, is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. Second, having acknowledged the tension between the competing, overlapping interests of First Amendment expression and anti-harassment laws, the Third Circuit sifted through the policy to find the elements that were beyond the overlap. …