Opinion

Saxe v. State College Area School District

240 F.3d 200

Court: Court of Appeals for the Third Circuit
Filed: Feb 14, 2001
On the bench: Alito, Rendell, Duhé
Cited by: 6 cases
Authority: More cited than 40.1%

reasoning that "disparaging comment[s]" about other students' personal characteristics may "create an 'hostile environment'" and thus be restricted if there is a "threshold showing of severity or pervasiveness"

How later courts described this case

reasoning that "disparaging comment[s]" about other students' personal characteristics may "create an 'hostile environment'" and thus be restricted if there is a "threshold showing of severity or pervasiveness"
finding "hostile environment" portion of anti-harassment policy overbroad because it "[did] not, on its face, require any threshold showing of severity or pervasiveness"
“[I]f a school can point to a well-founded expectation of disruption – especially one based on past incidents arising out of similar speech – the restriction may pass constitutional muster.”
allowing facial First Amendment challenge of school district’s anti-harassment policy for overbreadth

Written by the judges who cited it.

The opinion

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

2-14-2001

Saxe v. State College Area High School

Precedential or Non-Precedential:

Docket 99-4081

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Filed February 14, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-4081

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 W ARREN SAXE,

Appellants

STATE COLLEGE AREA SCHOOL DISTRICT;

CONSTANCE MARTIN, in her official capacity as

President of the State College Area School District

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

(Dist. Court No. 99-cv-01757)

District Court Judge: James F. McClur e, Jr.

Argued: May 23, 2000

Before: ALITO, RENDELL, and DUHE,* Cir cuit Judges.

(Opinion Filed: February 14, 2001)

_________________________________________________________________

* The Honorable John M. Duhe, Jr., Senior Judge of the United States

Court of Appeals for the Fifth Circuit, sitting by designation.

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 3

57 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

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 enter ed judgment

for the school district. We reverse.

_________________________________________________________________

1. Plaintiffs also assert that the Policy violates the free speech

guarantee

of the Pennsylvania Constitution. However, plaintiffs fail to present any

authority to show that Pennsylvania's guarantees ar e any broader than

the First Amendment's. Accordingly, we confine our discussion to the

plaintiffs' federal constitutional claims.

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]isr espect among

members of the school community is unacceptable behavior

which threatens to disrupt the school envir onment 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 inter fering with a

student's educational performance or cr eating an

intimidating, hostile or offensive envir onment.

The Policy continues by providing several examples of

"harassment":

Harassment can include any unwelcome verbal, written

or physical conduct which offends, denigrates or

belittles an individual because of any of the

characteristics described above. Such conduct

includes, but is not limited to, unsolicited der ogatory

remarks, jokes, demeaning comments or behaviors,

slurs, mimicking, name calling, graffiti, innuendo,

gestures, physical contact, stalking, thr eatening,

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 ar e also provided.

For example, "Racial and color harassment" is said to

include "nicknames emphasizing stereotypes, racial slurs,

comments on manner of speaking, and negative r eferences

to racial customs." Religous harassment r eaches

"derogatory comments regarding sur names, 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 pr ocedures for the reporting,

informal mediation, and formal r esolution of complaints. In

addition, the Policy sets a list of punishments for

harassment, "including but not limited to war ning,

exclusion, suspension, expulsion, transfer, termination,

discharge . . ., training, education, or counseling."

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

_________________________________________________________________

2. The school community, by the Policy's ter ms, "includes, but is not

limited to, all students, school employees, contractors, unpaid

volunteers, school board members, and other visitors." "School

employees" include, but are not limited to,"all teachers, support staff,

administrators, bus drivers, custodians, cafeteria workers, coaches,

volunteers, and agents of the school."

the Anti-Harassment Policy was adopted, Saxe filed suit in

District Court, alleging that the Policy was facially

unconstitutional under the First Amendment's fr ee speech

clause.3 In his Complaint, he alleged that

[a]ll Plaintiffs openly and sincer ely 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 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 ef fect 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 T itle 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 ar gument, the Court

_________________________________________________________________

3. In their complaint, plaintiffs also asserted a claim under the free

exercise clause of the First Amendment, but they do not press this claim

on appeal.

asserted that "a more precise definition of harassment, like

Justice Stewart's famous description of `por nography,' 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 pr otected

activity under the First Amendment. In fact, the

harassment prohibited under the Policy alr eady 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 r easoning. 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.

Because the District Court based its holding on a

determination that the Policy simply r eplicated 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 pr ogram or

activity receiving Federal financial assistance." 42 U.S.C.

S 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. S 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

The federal courts have held that these statutes cr eate a

private right of action similar to that available under Title

VII, which prohibits discrimination in the workplace. Most

significantly for this case, the Supreme Court has

recognized that a public school student may bring suit

against a school under Title IX for so-called"hostile

environment" harassment. Davis v. Monr oe County Board of

Education, 526 U.S. 629 (1999); Franklin v. Gwinnett

County Pub. Schs., 503 U.S. 60, 74-75 (1992).

The concept of "hostile environment" harassment

originated in a series of Title VII cases involving sexual

harassment in the workplace. In Meritor Savings Bank v.

Vinson, 477 U.S. 57 (1986), the Supr eme Court held that

Title VII prohibits abusive and discriminatory conduct that

creates a "hostile environment"--that is, harassment so

_________________________________________________________________

4. The District Court also referred to two state statutes: the

Pennsylvania

Human Relations Act (PHRA) and the Pennsylvania criminal harassment

statute. We do not believe that either of these statutes is particularly

relevant to this appeal. The PHRA, 43 P .S.A. SS 951 et seq., prohibits

discrimination in employment, housing and public accommodations on

the basis of "race, color, religious creed, ancestry, age, sex, national

origin or non-job related handicap or disability." 43 P.S.A. S 953. It has

not been construed, however, to create a cause of action for "hostile

environment" harassment of a public school student. Pennsylvania's

criminal harassment statute makes it a criminal of fense when a person,

with intent to harass, annoy or alarm another person, subjects or

threatens to subject that person to unwelcome physical contact; follows

that person in or about a public place; or behaves in a manner which

alarms or seriously annoys that person and that serves no legitimate

purpose. 18 P.S.A. S 2709. Clearly, this law covers a much narrower

range of conduct than is implicated by the SCASD Policy.

severe or pervasive as "to alter the conditions of the victim's

employment and create an abusive working envir onment."

Id. at 67. In Harris v. Forklift Systems, Inc., 510 U.S. 17

(1993), the Court clarified that in order for conduct to

constitute harassment under a "hostile envir onment"

theory, it must both: (1) be viewed subjectively as

harassment by the victim and (2) be objectively severe or

pervasive enough that a reasonable person would agree

that it is harassment. See id. at 21-22. The Court

emphasized that the objective prong of this inquiry must be

evaluated by looking at the "totality of the cir cumstances."

"These may include," the Court observed, "the frequency of

the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mer e offensive

utterance; and whether it unreasonably inter feres with an

employee's work performance." Id . at 23. See also Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)

("Conduct that is not severe or pervasive enough to create

an objectively hostile or abusive work envir onment--an

environment that a reasonable person wouldfind hostile or

abusive--is beyond Title VII's purview."). In defining the

contours of this concept, the Court has repeatedly stated

that Title VII is not violated by the "mer e utterance of an

. . . epithet which engenders offensive feelings in an

employee" or by mere " `discourtesy or rudeness,' unless so

severe or pervasive as to constitute an objective change in

the conditions of employment." Faragher v. City of Boca

Raton, 524 U.S. 775, 787 (1998).

The Supreme Court has extended an analogous cause of

action to students under Title IX. Originally, such claims

were limited to cases involving harassment of a student by

a teacher or other agent of the school. See Franklin v.

Gwinnett County Pub. Schs., supra. However, in 1999, in

Davis v. Monroe County Board of Education, supra, the

Court held that Title IX also permits a plaintiff to recover

damages from a federally funded educational institution for

certain cases of student-on-student sexual harassment. To

recover in such a case,

a plaintiff must establish sexual harassment of

students that is so severe, pervasive, and objectively

offensive, and that so undermines and detracts from

the victims' educational experience, that the victim-

students are effectively denied equal access to an

institution's resources and opportunities.

Id. at 651. This determination " `depends on a constellation

of surrounding circumstances, expectations, and

relationships,' including, but not limited to, the ages of the

harasser and the victim, and the number of individuals

involved." Id. (quoting Oncale, 523 U.S. at 82). The Court

stressed that "[d]amages are not available for simple acts of

teasing and name-calling among school childr en, even

where these comments target differ ences in gender." Id. at

652. Rather, private damages actions against the school are

limited to cases is which the school "acts with deliberate

indifference to known acts of harassment," and those acts

have "a systemic effect on educational pr ograms and

activities." Id. at 633, 653.5

With this framework in mind, we now tur n to the District

Court's assertion that "harassment has never been

considered to be protected activity under the First

Amendment." The District Court's categorical

pronouncement exaggerates the current state of the case

law in this area.

There is of course no question that non-expr essive,

physically harassing conduct is entir ely outside the ambit of

the free speech clause. But there is also no question that

the free speech clause protects a wide variety of speech that

listeners may consider deeply offensive, including

statements that impugn another's race or national origin or

that denigrate religious beliefs. See, e.g., Brandenburg v.

Ohio, 395 U.S. 444 (1969); Cantwell v. Connecticut, 310

U.S. 296 (1940). When laws against harassment attempt to

_________________________________________________________________

5. Although both Franklin and Davis dealt with sexual harassment under

Title IX, we believe that their reasoning applies equally to harassment on

the basis of the personal characteristics enumerated in Title VI and

other relevant federal anti-discrimination statutes. Accord Monteiro v.

Tempe Union High Sch. Dist., 158 F .3d 1022, 1032-33 (9th Cir. 1998)

(applying Title VI to student-on-student racial harassment).

regulate oral or written expression on such topics, however

detestable the views expressed may be, we cannot turn a

blind eye to the First Amendment implications. "Where pure

expression is involved," anti-discrimination law "steers into

the territory of the First Amendment." DeAngelis v. El Paso

Mun. Police Officers' Ass'n, 51 F.3d 591, 596 (5th Cir.

1995).

This is especially true because, as the Fifth Cir cuit has

noted, when anti-discrimination laws are "applied to . . .

harassment claims founded solely on verbal insults,

pictorial or literary matter, the statute[s] impose[ ] content-

based, viewpoint-discriminatory restrictions on speech."

DeAngelis, 51 F.3d at 596-97. Indeed, a disparaging

comment directed at an individual's sex, race, or some

other personal characteristic has the potential to create an

"hostile environment"--and thus come within the ambit of

anti-discrimination laws--precisely because of its sensitive

subject matter and because of the odious viewpoint it

expresses.6

This sort of content- or viewpoint-based restriction is

ordinarily subject to the most exacting First Amendment

scrutiny. This point was dramatically illustrated in R.A.V. v.

City of St. Paul, 505 U.S. 377 (1992), in which the Supreme

_________________________________________________________________

6. Most commentators including those who favor and oppose First

Amendment protection for harassing speech, agr ee that federal anti-

discrimination law regulates speech on the basis of content and

viewpoint. See, e.g., Deborah Epstein, Can a "Dumb Ass Woman" Achieve

Equality in the Workplace? Running the Gauntlet of Hostile Environment

Harassing Speech, 84 Geo. L.J. 399, 433 (1996); Eugene Volokh, How

Harassment Law Restricts Free Speech, 47 Rutgers L. Rev. 563, 571-72

(1995); Suzanne Sangree, Title VII Pr ohibitions Against Hostile

Environment Sexual Harassment and the First Amendment: No Collision in

Sight, 47 Rutgers L. Rev. 461, 477 (1995); Richard H. Fallon, Sexual

Harassment, Content Neutrality, and the First Amendment Dog That

Didn't Bark, 1994 Sup. Ct. L. Rev. 1, 8 (1994); Kingsley R. Browne, Title

VII as Censorship: Hostile-Environment Harassment and the First

Amendment, 52 Ohio State L.J. 481, 481 (1991); Marcy Strauss, Sexist

Speech in the Workplace, 25 Harv. C.R.-C.L. L. Rev. 1, 32-33 (1990). But

see Charles R. Calleros, Title VII and the First Amendment: Content-

Neutral Regulation, Disparate Impact, and the "Reasonable Person", 58

Ohio St. L.J. 1217 (1997).

Court struck down a municipal hate-speech or dinance

prohibiting "fighting words" that ar oused "anger, alarm or

resentment on the basis of race, color, creed, religion or

gender." Id. at 377. While r ecognizing that fighting words

generally are unprotected by the First Amendment, the

Court nevertheless found that the ordinance

unconstitutionally discriminated on the basis of content

and viewpoint:

Displays containing some words--odious racial

epithets, for example--would be prohibited to

proponents of all views. But "fighting wor ds" that do

not themselves invoke race, color, cr eed, religion, or

gender--aspersions upon a person's mother, for

example--would seemingly be usable ad libitum in the

placards of those arguing in favor of racial, color, etc.

tolerance and equality, but could not be used by that

speaker's opponents.

Id. at 391. Striking down the law, the Court concluded that

"[t]he point of the First Amendment is that majority

preferences must be expressed in some fashion other than

silencing speech on the basis of content." Id . at 392.

Loosely worded anti-harassment laws may pose some of

the same problems as the St. Paul hate speech ordinance:

they may regulate deeply offensive and potentially

disruptive categories of speech based, at least in part, on

subject matter and viewpoint. Although the Supr eme Court

has written extensively on the scope of workplace

harassment, it has never squarely addressed whether

harassment, when it takes the form of pur e speech, is

exempt from First Amendment protection. See Weller v.

Citation Oil & Gas Corp., 84 F.3d 191, 194 n.6 (5th Cir.

1996) (noting that the Supreme Court has "pr ovid[ed] little

guidance whether conduct targeted for its expr essive

content . . . may be regulated under Title VII"); Aguilar v.

Avis Rent A Car Sys., Inc., 980 P.2d 846, 863 (Cal. 1999)

(Werdegar, J., concurring) ("No decision by the United

States Supreme Court has, as yet, declar ed that the First

Amendment permits restrictions on speech creating a

hostile work environment.").7

_________________________________________________________________

7. Hishon v. King & Spalding, 467 U.S. 69 (1984), which SCASD cites for

the proposition that Title VII's pr ohibitions do not offend the First

SCASD relies heavily on a passage in R.A.V . in which the

Court suggested in dictum that at least some harassing

speech does not warrant First Amendment protection:

[S]ince words in some circumstances violate laws

directed not against speech but against conduct (a law

against treason, for example, is violated by telling the

enemy the nation's defense secrets) a particular

content-based subcategory of a proscribable class of

speech can be swept up incidentally within the r each of

a statute directed at conduct rather than speech [citing

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571 (1991);

FTC v. Superior Court Trial Lawyers Assn., 493 U.S.

411, 425-432 (1990); and United States v. O'Brien, 391

U.S. 367, 376-377 (1968)]. Thus, for example, sexually

derogatory "fighting words," among other words, may

produce a violation of Title VII's general prohibition

against sexual discrimination in employment practices.

Where the government does not tar get conduct on the

basis of its expressive content, acts ar e not shielded

from regulation merely because they express a

discriminatory idea or philosophy.

R.A.V., 505 U.S. at 389 (other citations omitted) (emphasis

added).

This passage suggests that government may

constitutionally prohibit speech whose non-expressive

qualities promote discrimination. For example, a

supervisor's statement "sleep with me or you'r e fired" may

be proscribed not on the ground of any expressive idea that

the statement communicates, but rather because it

facilitates the threat of discriminatory conduct. Despite the

purely verbal quality of such a threat, it surely is no more

"speech" for First Amendment purposes than the robber's

demand "your money or your life." Accor d NLRB v. Gissel

Packing Co., 395 U.S. 575, 617, 618 (1969) (holding that

employer's "threat of retaliation" on basis of union

_________________________________________________________________

Amendment, is inapposite. Hishon, which was decided years before the

Supreme Court even recognized the existence of a "hostile environment"

cause of action under that statute, only addr essed the constitutionality

of the statute's application to quid pro quo harassment.

membership was "without the protection of the First

Amendment") (citation and internal quotation marks

omitted).8 Similarly, we see no constitutional problem with

_________________________________________________________________

8. The cases cited in R.A.V. each upheld a restriction on expressive

conduct that was based solely on secondary ef fects of the speech that

were merely incidental to its expr essive content. In none of these cases,

however, did the Court imply that the gover nment may prohibit speech

based on a desire to suppress the ideas it communicates. In Barnes, the

Court found that the state's legitimate inter est in preventing public

nudity permitted it to enforce a public indecency statute against a nude

dancing establishment:

[W]e do not think that when Indiana applies its statute to the nude

dancing in these nightclubs it is proscribing nudity because of the

erotic message conveyed by the dancers. . . . The perceived evil

that

Indiana seeks to address is not erotic dancing, but public nudity.

The appearance of people of all shapes, sizes and ages in the nude

at a beach, for example, would convey little if any erotic message,

yet the State still seeks to prevent it. Public nudity is the evil

the

State seeks to prevent, whether or not it is combined with

expressive

activity.

Barnes, 501 U.S. at 570. Similarly, in Supreme Court Trial Lawyers, the

Court upheld, against First Amendment challenge, the application of the

Sherman Act against boycotters based on the boycott's economic effects:

A nonviolent and totally voluntary boycott may have a disruptive

effect on local economic conditions. This Court has recognized the

strong governmental interest in certain forms of economic

regulation, even though such regulation may have an incidental

effect on rights of speech and association.

Supreme Court Trial Lawyers, 493 U.S. at 428 n.12 (quoting NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 912 (1982)). Finally, in O'Brien,

the Court found no First Amendment impediment to pr osecuting anti-

war protestors who had violated federal law by burning their draft cards:

[E]ven on the assumption that the alleged communicative element in

O'Brien's conduct is sufficient to bring into play the First

Amendment, it does not necessarily follow that the destruction of a

registration certificate is constitutionally protected activity. .

. . The

many functions performed by Selective Service certificates

establish

beyond doubt that Congress has a legitimate and substantial

interest in preventing their wanton and unrestrained destruction

and assuring their continuing availability by punishing people who

knowingly and wilfully destroy or mutilate them.

O'Brien, 391 U.S. at 376, 380. Accor d Wisconsin v. Mitchell, 508 U.S.

467, 487-88 (1993) (noting that conduct not tar geted on the basis of its

expressive content may be regulated under Title VII).

using an employer's offensive speech as evidence of motive

or intent in a case involving an allegedly discriminatory

employment action. Accord Dawson v. Delaware, 503 U.S.

159 (1992) ("The Constitution does not er ect a per se

barrier to the admission of evidence concerning one's

beliefs and associations . . . simply because those beliefs

and associations are protected by the First Amendment.").

The previously quoted passage from R.A.V., however, does

not necessarily mean that anti-discrimination laws are

categorically immune from First Amendment challenge

when they are applied to prohibit speech solely on the basis

of its expressive content. See DeAngelis, 51 F.3d at 596 n.7;

John E. Nowak & Ronald D. Rotunda, Constitutional Law

S 16.39, at 1116 (5th ed. 1995). "Harassing" or

discriminatory speech, although evil and offensive, may be

used to communicate ideas or emotions that nevertheless

implicate First Amendment protections. As the Supreme

Court has emphatically declared, "[i]f there is a bedrock

principle underlying the First Amendment, it is that the

government may not prohibit the expr ession of an idea

simply because society finds the idea offensive or

disagreeable." Texas v. Johnson , 491 U.S. 397, 414 (1989).

For this reason, we cannot accept SCASD's contention

that the application of anti-harassment law to expr essive

speech can be justified as a regulation of the speech's

"secondary effects." R.A.V. did acknowledge that content-

discriminatory speech restrictions may be per missible when

the content classification merely "happens to be associated

with particular `secondary effects' of the speech, so that the

regulation is `justified without r eference to the content of

the . . . speech.' " R.A.V., 505 U.S. at 389 (quoting Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)). The

Supreme Court has made it clear, however , that the

government may not prohibit speech under a "secondary

effects" rationale based solely on the emotive impact that its

offensive content may have on a listener:"Listeners'

reactions to speech are not the type of`secondary effects'

we referred to in Renton. . . . The emotive impact of speech

on its audience is not a `secondary effect.' " Boos v. Barry,

485 U.S. 312, 321 (1988); see also United States v. Playboy

Entertainment Group, 120 S. Ct. 1878, 1885 (2000) ("The

overriding justification for the regulation is concern for the

effect of the subject matter on [listeners] . . . . This is the

essence of content-based regulation."); Forsyth County v.

Nationalist Movement, 505 U.S. 123, 134 (1992) ("Listeners'

reaction to speech is not a content-neutral basis for

regulation."). Nor do we believe that the r estriction of

expressive speech on the basis of its content may be

characterized as a mere "time, place and manner"

regulation. See Reno v. ACLU, 521 U.S. 844, 879 (1997)

("time, place and manner" analysis not applicable when

statute "regulates speech on the basis of its content");

Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1,

20 (1986) ("[f]or a time, place, or manner r egulation to be

valid, it must be neutral as to the content of the speech");

Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S.

530, 536 (1980) ("a constitutionally permissible time, place,

or manner restriction may not be based upon either the

content or subject matter of speech").

In short, we see little basis for the District Court's

sweeping assertion that "harassment"--at least when it

consists of speech targeted solely on the basis of its

expressive content--"has never been considered to be

protected activity under the First Amendment." Such a

categorical rule is without precedent in the decisions of the

Supreme Court or this Court, and it belies the very real

tension between anti-harassment laws and the

Constitution's guarantee of freedom of speech.

We do not suggest, of course, that no application of anti-

harassment law to expressive speech can survive First

Amendment scrutiny. Certainly, preventing discrimination

in the workplace--and in the schools--is not only a

legitimate, but a compelling, government inter est. See, e.g.,

Board of Directors of Rotary Int'l v. Rotary Club of Duarte,

481 U.S. 537, 549 (1987). And, as some courts and

commentators have suggested, speech may be mor e readily

subject to restrictions when a school or workplace audience

is "captive" and cannot avoid the objectionable speech. See,

e.g., Aguilar, 980 P.2d at 871-73 (Werdegar, J., concurring).

We simply note that we have found no categorical rule that

divests "harassing" speech, as defined by federal anti-

discrimination statutes, of First Amendment pr otection.

In any event, we need not map the precise boundary

between permissible anti-discrimination legislation and

impermissible restrictions on First Amendment rights

today. Assuming for present purposes that the federal anti-

discrimination laws are constitutional in all of their

applications to pure speech, we note that the SCASD

Policy's reach is considerably broader .

For one thing, the Policy prohibits harassment based on

personal characteristics that are not pr otected under

federal law. Titles VI and IX, taken together with the other

relevant federal statutes, cover only harassment based on

sex, race, color, national origin, age and disability. The

Policy, in contrast, is much broader, r eaching, at the

extreme, a catch-all category of "other personal

characteristics" (which, the Policy states, includes things

like "clothing," "appearance," "hobbies and values," and

"social skills"). Insofar as the policy attempts to prevent

students from making negative comments about each

others' "appearance," "clothing," and"social skills," it may

be brave, futile, or merely silly. But attempting to proscribe

negative comments about "values," as that ter m is

commonly used today, is something else altogether . 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. 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. It may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with

conditions as they are, or even stirs people to anger.' "

Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (quoting

Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). No court or

legislature has ever suggested that unwelcome speech

directed at another's "values" may be pr ohibited under the

rubric of anti-discrimination.

We do not suggest, of course, that a public school may

never adopt regulations more protective than existing law;

it may, provided that those regulations do not offend the

Constitution. Such regulations cannot be insulated from

First Amendment challenge, however, based on the

argument that they do no more than pr ohibit conduct that

is already unlawful.

Moreover, the Policy's prohibition extends beyond

harassment that objectively denies a student equal access

to a school's education resources. Even on a narrow

reading, the Policy unequivocally prohibits any verbal or

physical conduct that is based on an enumerated personal

characteristic and that "has the purpose or effect of

substantially interfering with a student's educational

performance or creating an intimidating, hostile or offensive

environment." (emphasis added). Unlike federal anti-

harassment law, which imposes liability only when

harassment has "a systemic effect on educational programs

and activities," Davis, 526 U.S. at 633 (emphasis added),

the Policy extends to speech that merely has the "purpose"

of harassing another. This formulation, by focusing on the

speaker's motive rather than the effect of speech on the

learning environment, appears to sweep in those "simple

acts of teasing and name-calling" that the Davis Court

explicitly held were insufficient for liability.

The District Court justifies its ruling by a syllogism: (1)

the SCASD Policy covers only speech that is alr eady

prohibited under federal and state anti-harassment laws;

(2) such prohibited speech is not entitled to First

Amendment protection; (3) therefor e, the Policy poses no

First Amendment problems. This reasoning is flawed in

both its major and minor premises. First, the Policy--even

narrowly interpreted--covers substantially more speech

than applicable federal and state laws. Second, the courts

have never embraced a categorical "harassment exception"

from First Amendment protection for speech that is within

the ambit of federal anti-discrimination laws.

III.

Accordingly, we must examine whether the Policy may be

justified as a permissible regulation of speech within the

schools.

We begin by reviewing the Supreme Court's cases

demarcating the scope of a student's right to freedom of

expression while in school.9 The Court set out the

framework for student free speech claims in Tinker v. Des

Moines Independent Community School District, 393 U.S.

503 (1969). In Tinker, a group of students was suspended

for wearing black armbands to protest American

involvement in the Vietnam War . The Court held that the

wearing of the armbands to make a political statement was

"closely akin to `pure speech' " and thus was

constitutionally protected. Id. at 505. Taking as its premise

that "[i]t can hardly be argued that either students or

teachers shed their constitutional rights to fr eedom of

speech or expression at the schoolhouse gate," id. at 506,

the Court reasoned that

[t]he school officials banned and sought to punish

petitioners for a silent, passive expression of opinion,

unaccompanied by any disorder or disturbance on the

part of the petitioners. There is here no evidence

whatever of the petitioners' interference, actual or

nascent, with the school's work or of collision with the

rights of other students to be secure and left alone.

Accordingly, this case does not concern speech or

action that intrudes upon the work of the school or the

rights of other students.

Id. at 504. Significantly, the Court emphasized that

"undifferentiated fear or appr ehension of disturbance is not

enough to overcome the right to freedom of expression." Id.

at 508.

Under Tinker, then, regulation of student speech is

generally permissible only when the speech would

substantially disrupt or interfere with the work of the

school or the rights of other students. As subsequent

_________________________________________________________________

9. We recognize that the SCASD Policy restricts the speech, not only of

students, but also of teachers, volunteers and other adult members of

the "school community." Because we conclude, however, that the Policy

fails under the less stringent standards for the restriction of student

speech, we need not address this matter further .

federal cases have made clear, Tinker requires a specific

and significant fear of disruption, not just some remote

apprehension of disturbance. In Chandler v. McMinnville

School District, 978 F.2d 524 (9th Cir . 1992), for example,

a middle school punished students who wore"SCAB"

buttons to protest replacement teachers during a strike.

Because the school had failed to present any evidence that

the buttons were "inherently disruptive" to school activities,

the court held that students could proceed with their First

Amendment claim. In Chalifoux v. New Caney Independent

School District, 976 F. Supp. 659 (S.D. T ex. 1997), a high

school student challenged his school's policy against gang-

related apparel. The school applied the ban to prohibit the

plaintiff, a devout Catholic, from wearing a rosary to school

on the ground that some gangs had adopted the r osary as

their identifying symbol. The court held that the ban failed

to satisfy Tinker's substantial disruption test:

[A]lthough Plaintiffs wore their r osaries outside their

shirts for several months, they were never misidentified

as gang members nor approached by gang members.

There also was no evidence that they attracted the

attention of other students because of their r osaries.

. . . Accordingly, the Court finds that ther e was

insufficient evidence of actual disruption at New Caney

High School, or that there was substantial r eason for

NCISD to anticipate a disruption, to justify the

infringement on Plaintiffs' religiously-motivated speech.

Chalifoux, 976 F. Supp. at 667. Finally, in Clark v. Dallas

Independent School District, 806 F. Supp. 116, 120 (N.D.

Tex. 1992), the court held that a high school could not

prohibit its students from distributing r eligious tracts on

school grounds. Again citing Tinker , the court held that

"Defendants have failed to establish that Plaintiffs'

distribution of the religious tracts gave rise to a material or

substantial disruption of the operation" of the school. Id. at

120. Noting that the only evidence of disruption was the

objection of several other students, the court observed that

"[i]f school officials were per mitted to prohibit expression to

which other students objected, absent any further

justification, the officials would have a license to prohibit

virtually every type of expression." Id .

The Tenth Circuit's recent decision in West v. Derby

Unified School District No. 260, 206 F .3d 1358 (10th Cir.

2000), which reached a different r esult, nevertheless

confirms Tinker's requir ements of specificity and

concreteness. In West, a middle school student was

suspended for drawing a Confederate flag in math class

under a school policy providing that a "student shall not

racially harass or intimidate another student by name

calling, using racial or derogatory slurs,[or] wearing or

possession of items depicting or implying racial hatred or

prejudice." Id. at 1361. The Court upheld the suspension

under Tinker's substantial disruption standard, finding

that the school had demonstrated a concrete thr eat of

substantial disruption:

[B]ased upon recent past events, Derby School District

officials had reason to believe that a student's display

of the Confederate flag might cause disruption and

interfere with the rights of other students to be secure

and let alone. . . . The district experienced a series of

racial incidents [including "hostile confr ontations" and

at least one fight] in 1995, some of which wer e related

to the Confederate flag. . . . The Racial Harassment

policy enacted in response to this situation was clearly

something more than a mere desire to avoid the

discomfort and unpleasantness that always accompany

an unpopular viewpoint. The history of racial tension

in the district made administrators' and par ents'

concerns about future substantial disruptions from

possession of Confederate flag symbols at school

reasonable.

Id. at 1366 (citation omitted). As W est makes clear, the

mere desire to avoid "discomfort" or"unpleasantness" is not

enough to justify restricting student speech under Tinker.

However, if a school can point to a well-founded expectation

of disruption--especially one based on past incidents

arising out of similar speech--the restriction may pass

constitutional muster.

Since Tinker, the Supreme Court has carved out a

number of narrow categories of speech that a school may

restrict even without the threat of substantial disruption. In

Bethel School District No. 403 v. Fraser, 478 U.S. 675

(1986), the Court upheld the school's suspension of a high

school student who, at a school assembly, nominated a

peer for class office through "an elaborate, graphic, and

explicit sexual metaphor." Id. at 677. Holding that the

student's expression was not protected by the First

Amendment, the Court reasoned that

[t]he schools, as instruments of the state, may

determine that the essential lessons of civil, mature

conduct cannot be conveyed in a school that tolerates

lewd, indecent, or offensive speech and conduct such

as that indulged in by this confused boy.

Id. at 683. Distinguishing Cohen v. California, 403 U.S. 15

(1971), in which the Court struck down an adult's

conviction for wearing a jacket bearing an obscenity in a

public courthouse, the Court explained that

[i]t does not follow . . . that, simply because the use of

an offensive form of expression may not be prohibited

to adults making what the speaker considers a political

point, the same latitude must be permitted to children

in public school. . . . "[T]he First Amendment gives a

high school student the classroom right to wear

Tinker's armband, but not Cohen's jacket."

Fraser, 478 U.S. at 683 (citations omitted). According to

Fraser, then, there is no First Amendment protection for

"lewd," "vulgar," "indecent," and "plainly offensive" speech

in school. Fraser permits a school to prohibit words that

"offend for the same reasons that obscenity offends"--a

dichotomy neatly illustrated by the comparison between

Cohen's jacket and Tinker's armband. Fraser, 478 U.S. at

685 (quoting FCC v. Pacifica Foundation, 438 U.S. 726, 746

(1978)); see also Hazelwood School District v. Kuhlmeier,

484 U.S. 260, 286 n.2 (Brennan, J., dissenting) (Fraser

exception limited "to the appropriateness of the manner in

which the message is conveyed, not of the message's

content"); East High Gay/Straight Alliance v. Board of Educ.

of Salt Lake City Sch. Dist., 81 F. Supp. 2d 1166, 1193 (D.

Utah 1999) ("Fraser speaks to the for m and manner of

student speech, not its substance. It addresses the mode of

expression, not its content or viewpoint.").

Finally, in Hazelwood School District v. Kuhlmeier, 484

U.S. 258 (1988), the Court upheld, against First

Amendment challenge, a principal's deletion of student

articles on teen pregnancy from a school-sponsored

newspaper. Distinguishing Tinker , the Court noted the

school had not opened the newspaper up as a public forum

and therefore could "exercis[e] editorial control over the

style and content of student speech in school-sponsored

expressive activities as long as [its] actions are reasonably

related to legitimate pedagogical concer ns." Id. at 273

(emphasis added). As the Court reasoned,

[t]he question whether the First Amendment r equires a

school to tolerate particular student speech--the

question that we addressed in Tinker --is different from

the question whether the First Amendment requir es a

school affirmatively to promote particular student

speech. The former question addresses educators'

ability to silence a student's personal expr ession that

happens to occur on the school premises. The latter

question concerns educators' authority over school-

sponsored publications, theatrical productions, and

other expressive activities that students, par ents, and

members of the public might reasonably per ceive to

bear the imprimatur of the school. . . . Educators are

entitled to exercise greater contr ol over this second

form of student expression . . . .

Id. at 270-71. In Rosenberger v. Rector & Visitors of

University of Virginia, 515 U.S. 819 (1995), the Court made

clear that Hazelwood's permissive"legitimate pedagogical

concern" test governs only when a student's school-

sponsored speech could reasonably be viewed as speech of

the school itself:

[W]hen the State is the speaker, it may make content-

based choices. When the University determines the

content of the education it provides, it is the University

speaking, and we have permitted the gover nment to

regulate the content of what is or is not expr essed

when it is the speaker or when it enlists private entities

to convey its own message. . . . It does not follow,

however . . . that viewpoint-based restrictions are

proper when the University does not itself speak or

subsidize transmittal of a message it favors but instead

encourage[s] a diversity of views from private speakers.

A holding that the University may not discriminate

based on the viewpoint of private persons whose

speech it facilitates does not restrict the University's

own speech, which is controlled by differ ent principles.

See, e.g., . . . Hazelwood School Dist. v. Kuhlmeier, [484

U.S. at 270-72].

Rosenberger, 515 U.S. at 834. Similarly, a post-Hazelwood

case from the Seventh Circuit illustrates that school

"sponsorship" of student speech is not lightly to be

presumed. See Hedges v. Wauconda Comm. Unit Sch. Dist.

No. 118, 9 F.3d 1295, 1299 (7th Cir . 1993). In striking

down a blanket prohibition against distributing religious

materials on school grounds, the Hedges Court rejected the

argument that the ban was justified under Hazelwood

because observers might "infer that the school endorses

whatever it permits":

[The School District] proposes to thr ow up its hands,

declaring that because misconceptions are possible it

may silence its pupils, that the best defense against

misunderstanding is censorship. . . . Public belief that

the government is partial does not per mit the

government to become partial. Students ther efore may

hand out literature even if the recipients would

misunderstand its provenance. The school's pr oper

response is to educate the audience rather than

squelch the speaker.

Hedges, 9 F.3d at 1299; see also Burch v. Barker, 861 F.2d

1149, 1159 (9th Cir. 1998) ("under ground newspaper"

distributed on school grounds could not r easonably be

viewed as school-sponsored).

To summarize: Under Fraser, a school may categorically

prohibit lewd, vulgar or profane language. Under

Hazelwood, a school may regulate school-sponsored speech

(that is, speech that a reasonable observer would view as

the school's own speech) on the basis of any legitimate

pedagogical concern. Speech falling outside of these

categories is subject to Tinker's general rule: it may be

regulated only if it would substantially disrupt school

operations or interfere with the right of others. See

Chandler, 978 F.2d at 529; Pyle v. South Hadley Sch.

Comm., 861 F. Supp. 157, 166 (D. Mass. 1994).

IV.

We turn now to the SCASD Policy itself. Saxe levies facial

challenges against the Policy on both overbr eadth and

vagueness grounds. Because we hold that the Policy, even

narrowly read, is unconstitutionally overbroad, we do not

reach the merits of Saxe's vagueness claim.

A regulation is unconstitutional on its face on

overbreadth grounds where ther e is a "a likelihood that the

statute's very existence will inhibit free expr ession" by

"inhibiting the speech of third parties who are not before

the Court." Members of City Council v. T axpayers for

Vincent, 466 U.S. 789, 799 (1984). T o render a law

unconstitutional, the overbreadth must be "not only real

but substantial in relation to the statute's plainly legitimate

sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

On first reading, the Policy on its face appears both

unconstitutionally vague and overbroad. As an initial

matter, the Policy contains several separate passages, each

of which could be read as embodying its operative definition

of banned speech. The Policy's second paragraph sets forth

one definition:

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 inter fering with a

student's educational performance or cr eating an

intimidating, hostile or offensive envir onment.

This, however, is immediately followed two paragraphs

later by a statement that harassment under the Policy "can

include any unwelcome verbal, written or physical conduct

which offends, denigrates or belittles an individual because

of any of the characteristics described above." In addition,

in a separate section, the Policy purports to set out

"definitions" for various categories of harassment that do

not always coincide with the above-quoted language.

Religious harassment, for example, is defined as

"unwelcome verbal, written or physical conduct directed at

the characteristics of a person's religion, such as

derogatory comments regarding sur names, religious

tradition, or religious clothing, or religious slurs, or graffiti."

Certainly, some of these purported definitions of

harassment are facially overbroad. No one would suggest

that a school could constitutionally ban "any unwelcome

verbal . . . conduct which offends . . . an individual because

of " some enumerated personal characteristics. Nor could

the school constitutionally restrict, without more, any

"unwelcome verbal . . . conduct directed at the

characteristics of a person's religion." The Supreme Court

has held time and again, both within and outside of the

school context, that the mere fact that someone might take

offense at the content of speech is not sufficient

justification for prohibiting it. See T inker, 393 U.S. at 509

(school may not prohibit speech based on the"mere desire

to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint"); T exas v. Johnson,

491 U.S. 397, 414 (1989) ("If there is a bedrock principle

underlying the First Amendment, it is that the gover nment

may not prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable.");

Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly

settled that . . . the public expression of ideas may not be

prohibited merely because the ideas ar e themselves

offensive to some of their hearers."); see also Doe v.

University of Michigan, 721 F. Supp. 852, 863 (E.D. Mich.

1989) (striking down university speech code: "Nor could the

University proscribe speech simply because it was found to

be offensive, even gravely so, by large numbers of people.").

Before declaring the Policy unconstitutional, however, we

must first determine whether it is susceptible to a

reasonable limiting construction: "the elementary rule is

that every reasonable construction must be r esorted to, in

order to save a statute from unconstitutionality."10 Stretton

_________________________________________________________________

10. Saxe's citation to Hynes v. Mayor & Council of Borough of Oradell,

425 U.S. 610 (1976), ostensibly for the proposition that federal courts

v. Disciplinary Bd. of the Supreme Court of Pennsylvania,

944 F.2d 137, 144 (3d Cir. 1991) (citations omitted); see

also Hoffman Estates v. Flipside, Hof fman Estates, 455 U.S.

489, 494 n.4 (1982) ("In evaluating a facial challenge to a

state law, a federal court must, of course, consider any

limiting construction."); Broadrick , 413 U.S.at 617 n.16 ("a

federal court must determine what a state statute means

before it can judge its facial unconstitutionality").

When the Policy is read as a whole, it appears that its

operative definition of prohibited harassment is contained

in the above-quoted second paragraph, which r equires that

speech either "substantially interfer[e] with a student's

educational performance or creat[e] an intimidating, hostile

or offensive environment." The Policy's fourth paragraph

and "Definitions" section could reasonably be read as

merely listing examples of conduct that might (but would

not necessarily) violate this operative definition. On this

narrow reading, the second paragraph would supply the

Policy's "formal" definition of pr ohibited harassment, but

the other sections of the Policy could still be r elevant in

clarifying vague or ambiguous terms in that operative

definition.

So narrowed, the Policy would requir e the following

elements before speech could be deemed harassing: (1)

verbal or physical conduct (2) that is based on one's actual

or perceived personal characteristics and (3) that has the

purpose or effect of either (3a) substantially interfering with

a student's educational performance or (3b) creating an

intimidating hostile, or offensive envir onment.

_________________________________________________________________

may not give a narrowing construction to a local statute, is inapposite.

In Hynes, the New Jersey Supreme Court had already authoritatively

construed the scope of the challenged statute. The U.S. Supreme Court

held that the state court's narrowing construction failed to solve the

law's vagueness problems and that, in light of the existing authoritative

interpretation, the federal courts were without power to further limit the

statute. See 425 U.S. at 622. Here, in contrast, the SCASD Policy has

not been authoritatively construed by the state courts, and we are

therefore required to give it a reasonable narrowing construction if

necessary to save it from unconstitutionality.

It is apparent from these elements that SCASD cannot

take solace in the relatively more per missive Fraser or

Hazelwood standards. First, the Policy does not confine

itself merely to vulgar or lewd speech; rather , it reaches any

speech that interferes or is intended to interfere with

educational performance or that cr eates or is intended to

create a hostile environment. While some Fraser-type

speech may fall within this definition, the Policy's scope is

clearly broader. Second, the Policy does not contain any

geographical or contextual limitations; rather , it purports to

cover "[a]ny harassment of a student by a member of the

school community." Thus, its strictures pr esumably apply

whether the harassment occurs in a school sponsor ed

assembly, in the classroom, in the hall between classes, or

in a playground or athletic facility.11 Obviously, the Policy

covers far more than just Hazelwood-type school-sponsored

speech; it also sweeps in private student speech that merely

"happens to occur on the school premises." Hazelwood, 484

U.S. at 271. As a result, SCASD cannot r ely on

Hazelwood's more lenient "legitimate pedagogical concern"

test in defending the Policy from facial attack.

In short, the Policy, even narrowly read, prohibits a

substantial amount of non-vulgar, non-sponsor ed student

speech. SCASD must therefore satisfy the Tinker test by

showing that the Policy's restrictions ar e necessary to

prevent substantial disruption or inter ference with the work

of the school or the rights of other students. Applying this

test, we conclude that the Policy is substantially overbroad.

As an initial matter, the Policy punishes not only speech

that actually causes disruption, but also speech that

merely intends to do so: by its terms, it covers speech

"which has the purpose or effect of " interfering with

educational performance or creating a hostile environment.

_________________________________________________________________

11. Indeed, Saxe even suggests that the Policy could even be read to

cover conduct occurring outside of school pr emises. This reading is not

implausible based on the Policy's plain language, and would raise

additional constitutional questions. See, e.g. , Boucher v. School Board

the School District of Greenfield, 134 F.3d 821, 828 (7th Cir. 1998)

("school officials' authority over off-campus expression is much more

limited than it is over expression on school gr ounds"); Klein v. Smith,

635 F. Supp. 1440 (D. Me. 1986) (student's vulgarity directed at teacher

off school premises was "too attenuated to support discipline").

This ignores Tinker's requir ement that a school must

reasonably believe that speech will cause actual, material

disruption before prohibiting it.

In addition, even if the "purpose" component is ignored,

we do not believe that prohibited "harassment," as defined

by the Policy, necessarily rises to the level of a substantial

disruption under Tinker. We agr ee that the Policy's first

prong, which prohibits speech that would"substantially

interfer[e] with a student's educational performance," may

satisfy the Tinker standard. The primary function of a

public school is to educate its students; conduct that

substantially interferes with the mission is, almost by

definition, disruptive to the school envir onment.

The Policy's second criterion, however--which pr ohibits

speech that "creat[es] an intimidating, hostile or offensive

environment"--poses a more difficult problem. There are

several possible grounds on which SCASD could attempt to

justify this prohibition. First, SCASD could ar gue that it

has an interest in avoiding liability for harassment under

Franklin and Davis. However, because the Policy prohibits

substantially more conduct than would give rise to liability

under these cases, this justification is unavailing.

Second, SCASD could argue that speech cr eating a

"hostile environment" may be banned because it "intrudes

upon . . . the rights of other students." T inker, 393 U.S. at

504. The precise scope of Tinker's "interference with the

rights of others" language is unclear; at least one court has

opined that it covers only independently tortious speech

like libel, slander or intentional infliction of emotional

distress. See Slotterback v. Interbor o Sch. Dist., 766 F.

Supp. 280, 289 n.8 (E.D. Pa. 1991); see also Kuhlmeier v.

Hazelwood Sch. Dist., 795 F.2d 1368, 1375 (8th Cir.), rev'd

on other grounds, 484 U.S. 260 (1986). In any case, it is

certainly not enough that the speech is merely offensive to

some listener. See, e.g., Rivera , 721 F. Supp. at 1191.

Because the Policy's "hostile environment" prong does not,

on its face, require any threshold showing of severity or

pervasiveness, it could conceivably be applied to cover any

speech about some enumerated personal characteristics the

content of which offends someone.12 This could include

_________________________________________________________________

12. Such a reading would be consistent with the Policy's very broad

statement of purpose, which notes that "[m]embers of the school

much "core" political and religious speech: the Policy's

"Definitions" section lists as examples of covered

harassment "negative" or "derogatory" speech about such

contentious issues as "racial customs," "r eligious tradition,"

"language," "sexual orientation," and"values." Such speech,

when it does not pose a realistic threat of substantial

disruption, is within a student's First Amendment rights.

Finally, SCASD might argue that the "hostile

environment" prohibition is requir ed to maintain an orderly

and non-disruptive educational environment. However, as

Tinker made clear, the "undif ferentiated fear or

apprehension of disturbance" is not enough to justify a

restriction on student speech. Although SCASD correctly

asserts that it has a compelling interest in pr omoting an

educational environment that is safe and conducive to

learning, it fails to provide any particularized reason as to

why it anticipates substantial disruption fr om the broad

swath of student speech prohibited under the Policy.

The Policy, then, appears to cover substantially mor e

speech than could be prohibited under T inker's substantial

disruption test. Accordingly, we hold that the Policy is

unconstitutionally overbroad.

For the foregoing reasons, the judgment of the District

Court is reversed.

_________________________________________________________________

community are expected to treat each other with mutual respect" and

that "[d]isrespect among members of the school community is

unacceptable behavior."

APPENDIX

STATE COLLEGE AREA SCHOOL DISTRICT

State College PA 16801

ANTI-HARASSMENT POLICY

(approved August 9, 1999)

GENERAL STATEMENT OF POLICY

The State College Area School District is committed to

providing all students with a safe, secur e, and nurturing

school environment. Members of the school community are

expected to treat each other with mutual r espect.

Disrespect among members of the school community is

unacceptable behavior which threatens to disrupt the

school environment and well being of the individual.

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.

According to state law (18 Pa. C.S.A. ~2709), an individual

commits the crime of harassment when, with intent to

harass, annoy or alarm another person, the individual

subjects, or attempts or threatens to subject, the other

person to unwelcome physical contact; follows the other

person in or about a public place or places; or behaves in

a manner which alarms or seriously annoys the other

person and which serves no legitimate purpose.

Harassment can include any unwelcome verbal, written or

physical conduct 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 behavior, slurs, mimicking, name calling,

graffiti, innuendo, gestures, physical contact, stalking,

threatening, bullying, extorting or the display or circulation

of written materials or pictures.

It is the policy of the State College Area School District to

oppose and prohibit, without qualification harassment

based on race, color, religion, national origin, gender,

sexual orientation, disability, and other for ms of

harassment. Harassment is not only a form of

discrimination, but also disrespectful behavior which will

not be tolerated.

Any harassment of a student by a member of the school

community is a violation of this policy.

The State College Area School District shall act to

investigate all complaints of harassment, either for mal or

informal, verbal or written, and will take appropriate action

against any member of the school community who is found

to have violated this policy.

It is a separate and distinct violation of this policy for any

member of the school community to retaliate against any

person who reports alleged harassment or against any

person who testifies, assists or participates in an

investigation, proceeding or hearing relating to such

harassment. It is possible that an alleged harasser may be

found to have violated this anti-retaliation pr ovision even if

the underlying complaint of harassment is not found to be

a violation of this policy. Retaliation includes, but is not

limited to any form of intimidation, r eprisal or harassment

and may be redressed through application of the same

reporting, investigation, and enforcement procedures as for

harassment. In addition, a person who knowingly makes a

false report may be subject to the same action that the

State College Area School District may take against any

other individual who violates this policy. The ter m "false

report" refers only to those made in bad faith and does not

include a complaint that could not be corroborated or

which did not rise to the level of harassment.

Any school employee or student who is found to have

violated this policy shall be subject to action including, but

not limited to warning, remedial training, education or

counseling, suspension, exclusion, expulsion, transfer,

termination or discharge, and legal action under state and

federal statutes.

DEFINITIONS

School community includes, but is not limited to, all

students, school employees, contractors, unpaid volunteers,

school board members, and other visitors.

School employee includes, but is not limited to, all

teachers, support staff, administrators, bus drivers,

custodians, cafeteria workers, coaches, volunteers, and

agents of the school.

Sexual harassment means unwelcome sexual advances,

requests for sexual favors and other verbal or physical

conduct of a sexual nature when:

(a) submission to that conduct is made either explicitly

or implicitly a term or condition of a student's

education;

(b) submission to or rejection of such conduct by a

student is used as a component of the basis for

decisions affecting that student;

substantially interfering with a student's educational

performance or creating an intimidating, hostile or

offensive educational environment.

This applies whether the harassment is between people of

the same or different gender. Sexual harassment can

include unwelcome verbal, written or physical conduct,

directed at or related to a person's gender, such as sexual

gossip or personal comments of a sexual natur e, sexually

suggestive or foul language, sexual jokes, whistling,

spreading rumors or lies of a sexual natur e about someone,

demanding sexual favors, forcing sexual activity by threat

of punishment or offer of educational r eward, obscene

graffiti, display or sending of pornographic pictures or

objects, offensive touching, pinching, grabbing, kissing or

hugging or restraining someone's movement in a sexual

way.

Racial and color harassment can include unwelcome

verbal, written, or physical conduct directed at the

characteristics of a person's race or color, such as

nicknames emphasizing stereotypes, racial slurs, comments

on manner of speaking, and negative refer ence to racial

customs.

Harassment on the basis of religion is unwelcome verbal,

written or physical conduct directed at the characteristics

of a person's religion, such as derogatory comments

regarding surnames, religious tradition, or religious

clothing, or religious slurs, or graffiti.

Harassment on the basis of national origin is unwelcome

verbal, written or physical conduct directed at the

characteristics of a person's national origin, such as

negative comments regarding surnames, manner of

speaking, customs, language, or ethnic slurs.

Harassment on the basis of sexual orientation is

unwelcome verbal, written or physical conduct dir ected at

the characteristics of a person's perceived sexual

orientation, such as negative name calling and degrading

behavior.

Disability harassment includes harassment based on a

person's disabling mental or physical condition and

includes any unwelcome verbal, written or physical

conduct, directed at the characteristics of a person's

disabling condition, such as imitating manner of speech or

movement, or interference with necessary equipment.

Other harassment on the basis of such things as clothing,

physical appearance, social skills, peer group, income,

intellect, educational program, hobbies or values, etc. may

also cause or effect substantial inter fering with a student's

educational performance or creating an intimidating,

hostile or offensive environment. This type of harassment is

also protected against by this policy and pr ocedures.

PROCEDURES FOR IMPLEMENTATION OF ANTI-

HARASSMENT POLICY

Reporting

Any school employee who observes, overhears or otherwise

witnesses harassment, which may be unlawful, or to whom

such harassment is reported, must take pr ompt and

appropriate action to stop the harassment and to prevent

its recurrence.

In the event that the school employee is unable to

personally take prompt and appropriate action, the

employee must report the incident or complaint in writing,

ordinarily within one school day, to the appr opriate school

complaint official(s) designated by this policy.

Any student or other person who believes that harassment

of a student has occurred shall inform any school employee

or one of the harassment complaint officials.

Any student who believes that he/she has been the target

of harassment as defined in this policy may bring his/her

complaint to the attention of any school employee or the

harassment complaint official(s). The complaint may be

made either orally or in writing. The following ar e the

harassment complaint officials:

Principal in each building or his/her designee

Personnel Director

If one of the harassment complaint officials is the person

alleged to be engaged in the harassment, the complaint

shall be filed with one of the alternative officials or any

other school employee the student chooses.

Process

Informal Procedure

It may be possible to resolve a complaint thr ough a

voluntary conversation between the complaining student

and the alleged harasser which is facilitated by a school

employee or by a designated harassment complaint official.

The State College Area School District believes that this

Informal Procedure may be an opportunity for educating

students regarding what may not be understood to be

offensive. In addition, those trained in mediation may

provide an avenue to resolve issues of harassment in a

problem-solving model. If the complaining student or

alleged harasser is a student under the age of 18, the

harassment complaint official should notify the student's

parent(s)/guardian(s) if, after initial consultation with the

student, it is determined to be in the best interests of the

student. Both the complaining student and the alleged

harasser may be accompanied by a person of his/her

choice for support and guidance. If the complaining student

and the alleged harasser feel that a resolution has been

achieved, then the conversation may remain confidential

and no further action is necessary. The results of an

informal resolution shall be reported by the facilitator, in

writing, to the superintendent and to the school principal.

If the complaining student, the alleged harasser , or the

school employee/harassment complaint official, chooses not

to utilize the informal procedure, or believes that the

informal procedure has been unsuccessful, he/she may

proceed to the formal procedur e. Any complaint against a

school employee shall be handled through the formal

procedure.

Formal Procedure

Step 1

The harassment complaint official shall fill out a

harassment complaint form based on the written or verbal

allegations of the complaining student. This complaint form

shall be kept in a centralized and secure location.

(a) The complaint form shall detail the facts and

circumstances of the incident or patter n of behavior.

(b) If a student under 18 years of age is involved,

his/her parents shall be notified immediately unless,

after consultation with the student, it is deter mined

not to be in the best interests of the student.

harassment complaint official within 14 calendar days

from the date of the complaint or report.

Step 2

The investigation may consist of personal interviews with

the complaining student, the alleged harasser and any

other individuals who may have knowledge of the alleged

incident(s) or circumstances giving rise to the complaint. In

determining whether alleged conduct constitutes a violation

of this policy, the harassment complaint official should

consider the surrounding circumstances, any relevant

documents, the nature of the behavior, past incidents or

past or continuing patterns of behavior , the relationships

between the parties involved and the context in which the

alleged incidents occurred. Whether a particular action or

incident constitutes a violation of this policy r equires a

determination based on all the facts and surr ounding

circumstances.

In addition, the State College Area School District may take

immediate steps, at its discretion, to pr otect the

complaining student, alleged harasser, witnesses, and

school employees pending completion of an investigation of

alleged harassment and may make any appropriate

referrals for assistance, including but not limited to

counseling, rape crisis intervention, notification of police,

etc.

The investigation will be completed as soon as practicable,

but no later than 10 school days from the complaint or

report. The harassment complaint official shall make a

written report to the superintendent and the school

principal upon completion of the investigation. The report

shall include a determination as to whether the allegations

have been substantiated as factual and whether they

appear to be violations of this policy.

Step 3

Following the investigation, the harassment complaint

official shall recommend to the superintendent and/or

school principal what action, if any, is requir ed. The State

College Area School District shall take appr opriate action in

all cases where the harassment complaint official concludes

that this policy has been violated. Any person who is

determined to have violated this policy shall be subject to

action, including but not limited to warning, exclusion,

suspension, expulsion, transfer, termination, discharge or

any other remedial action, including but not limited to

training, education, or counseling. Action taken for

violation of this policy shall be consistent with the

requirements of any applicable collective bargaining

agreement, State College Area School District policy, state

and federal law, including but not limited to the due

process protections for students with disabilities.

Step 4

The Director of Personnel or school principal shall maintain

the written report of the investigation and r esults in

his/her office. In the case of an investigation conducted by

the school district, the superintendent shall r eceive a copy

of the investigation report and results. If the harassment

complaint official concludes that the policy has been

violated by a professional educator or administrator, a

report of the findings shall be filed in the district employee's

personnel file.

The complaining student and the alleged harasser shall be

informed of the results of the investigation, including

whether the allegations were found to be factual, whether

there was a violation of the policy, and whether disciplinary

action was or will be taken.

REPORTING OF POTENTIAL PHYSICAL AND/OR

SEXUAL ABUSE

Several behaviors listed as sexual harassment (i.e., sexual

touching, grabbing, pinching, being forced to kiss someone,

being forced to do something sexual other than kissing,

sexual assault) may also constitute physical or sexual

abuse. Physical abuse is defined as inflicting intentional

bodily harm. Sexual abuse is defined as any act or acts by

a person involving sexual molestation or exploitation of

another person, including but not limited to incest,

prostitution, rape, sodomy or any lewd or lascivious

conduct. Thus, under certain circumstances, alleged

harassment may also be possible physical and/or sexual

abuse under Pennsylvania law. Such harassment or abuse

is subject to the duties of mandatory reporting and must be

reported to the appropriate authorities within 24 hours of

the time the educator becomes aware of the suspected

abuse. (Reference State College Area School District Policy

#806)

CONFIDENTIALITY

The State College Area School District r ecognizes that both

the complaining student and the alleged harasser have

strong interests in maintaining the confidentiality of the

allegations and related information. The privacy of the

complaining student, the individual(s) against whom the

complaint is filed, and the witnesses will be r espected as

much as possible, consistent with legal obligations to

investigate, to take appropriate action, and to comply with

any discovery or disclosure obligations.

ALTERNATIVE COMPLAINT PROCEDURES

In addition to, or instead of, filing a harassment complaint

through this policy, a person may choose to exercise other

options, including but not limited to filing a complaint with

outside agencies including the police or filing a private

lawsuit.

Outside Agencies

A charge of harassment may also be investigated by the

Pennsylvania Human Relations Commission, the

Pennsylvania Department of Education, or the Office for

Civil Rights of the U.S. Department of Education which

may be contacted as follows:

PA Human Relations Commission

Harrisburg Regional Office

1101-1125 South Front Street

Harrisburg, PA 17104

Phone: (717)787-9784

TTY: (717) 787-7279

Pennsylvania Department of Education

333 Market Street

Harrisburg, PA 17126-0333

Phone: (717) 787-2644

TTY: (717) 783-8445

Office for Civil Rights, Philadelphia Office

U.S. Department of Education

3535 Market Street, Room 6300, 03-2010

Philadelphia, PA 19104-3326

Phone: (215) 596-6787

TTY: (215) 596-6794

LITIGATION

A student who has been harassed may file a lawsuit under

a number of federal or state statutes (including T itles IV,

VI, and IX of the Federal Civil Rights Act of 1964, the

Rehabilitation Act of 1973 and appropriate Pennsylvania

laws). He or she or his/her parent(s) should consult with a

private attorney about these rights and options.

NOTICE AND PUBLICATION

The State College Area Board of School Dir ectors shall

provide notice of the policy and procedur es to students,

custodial parents or guardians and school employees.

Notice to students shall be in age-appropriate language and

should include examples of harassment. At a minimum, the

policy shall be conspicuously posted throughout each

school building in areas accessible to all members of the

school community. The notice shall also appear in the

school handbook and any other publication of the school

district that sets forth the comprehensive rules, procedures

and standards of conduct for the school. Ther e shall be

procedures for publicizing, on an annual basis, the identity

of the harassment complaint officials who ar e designated to

receive complaints. The board shall use its discretion in

developing and initiating age-appropriate pr ograms to

effectively inform students and school employees about the

substance of the policy and procedures in order to help

prevent harassment.

RENDELL, Circuit Judge, concurring:

I write separately only to note my strong disagreement

with the notion, espoused by the District Court and

discussed at length in Part II.B of the majority opinion, that

the judicial analysis of permissible r estrictions on speech in

a given setting should be affected -- let alone dictated -- by

legislative enactments intended to proscribe activity that

could be classified as "harassment." Our attempt at

reasoning through this postulate should demonstrate its

futility, given the numerous variables that impact on any

determination regarding the limits of permissible speech

and the rigorous analysis that we must follow in every First

Amendment case -- the analysis that our opinion does in

fact follow in reaching the result in this case.

Perhaps the only way, or time, that such legislation could

be a guide would be if its provisions wer e identical to the

policy at issue, or if in a case involving an as-applied

challenge to a policy, the legislative provisions addressed

every aspect of the particular factual setting at issue. Even

then, I submit that it would be the reasoning by a court

upholding its constitutionality, rather than the legislation

itself, that would provide the necessary guidance.

I view the use of harassment legislation as an especially

inappropriate barometer here because this case is not a

harassment case. Rather, it is framed by appellants as a

First Amendment speech case. Moreover, it is a school

speech case. While reliance on provisions of harassment

laws or policies might be an easy way to resolve difficult

cases such as this one, therein lies the rub-- there are no

easy ways in the complex area of First Amendment

jurisprudence.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.