Saxe v. State College Area School District

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 restrictions 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 were 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.

ATTACHMENT

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, secure, and nurturing school environment. Members of the school community are expected to treat each other with mutual respect. 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 con *219 tact, 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 forms 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 formal 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 provision 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, reprisal 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 term “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;

(c) the conduct has the purpose or effect of 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 nature, sexually suggestive or foul language, sexual jokes, whistling, spreading rumors or lies of a sexual nature about someone, demanding sexual favors, forcing sexual activity by threat of punishment or offer of educational reward, obscene graffiti, display or sending of pornographic pictures or ob *220 jects, 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 reference 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 directed 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 interfering 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 procedures.

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 prompt 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 appropriate 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 are the harassment complaint officials:

Principal in each building or his/her des-ignee

or

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 through 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 *221 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 procedure. 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 pattern 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 determined not to be in the best interests of the student.

(c)An investigation shall be completed by the 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 requires a determination based on all the facts and surrounding circumstances.

In addition, the State College Area School District may take immediate steps, at its discretion, to protect 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.

*222 Step 3

Following the investigation, the harassment complaint official shall recommend to the superintendent and/or school principal what action, if any, is required. The State College Area School District shall take appropriate 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 results in his/her office. In the case of an investigation conducted by the school district, the superintendent shall receive 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 recognizes 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 respected 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 De *223 partment 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 Titles TV, 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 Directors shall provide notice of the policy and procedures 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. There shall be procedures for publicizing, on an annual basis, the identity of the harassment complaint officials who are designated to receive complaints. The board shall use its discretion in developing and initiating age-appropriate programs to effectively inform students and school employees about the substance of the policy and procedures in order to help prevent harassment.