- The Washington Times - Friday, February 16, 2001

A federal appeals court ruled that a Pennsylvania school district's anti-harassment policy was overbroad and violated the rights of two Christian students who sought to speak out against homosexuality in accordance with their beliefs.

In a 3-0 ruling that is certain to be studied closely by school attorneys and districts around the nation, many of which have crafted similar harassment policies, judges from the 3rd Circuit Court of Appeals ruled that there was no "harassment exemption" to the First Amendment's free-speech clause.

"No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination," wrote the judges in their 29-page opinion.

"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 …" the judges ruled.

The decision is binding in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands.

The ruling came in the case of David Warren Saxe, an associate professor of education at Pennsylvania State University, who sued the 7,423-student State College Area School District for its anti-harassment policy. Under the policy, adopted by the district in 1999, students could be punished for making any remarks at school that other students overheard and found to be offensive, based on the district's definition of harassment.

Mr. Saxe serves as legal guardian to the two students, who attend public schools in the district, and brought the lawsuit on their behalf.

An attorney for Mr. Saxe called the decision "a tremendous blow against the political correctness movement."

"This is a resounding bell of freedom ringing in Philadelphia today reaffirming that indeed, students do not leave their First Amendment rights at the schoolhouse gate," said Bryan J. Brown, an attorney for the American Family Association Center for Law and Policy in Tupelo, Miss., who represented Mr. Saxe.

"It's hard to get more Orwellian than the speech code that was struck down," said Mr. Brown.

Attorneys for the school district have not decided if they will appeal, but Mr. Brown said he hopes they petition the Supreme Court to take the case because of the importance of the issues involved.

Harassment has been an ongoing concern for school districts around the country, many of which fear litigation from parents if they fail to take action to protect children who report they have been abused.

Mr. Saxe, a Republican who was appointed to the state board of education by Gov. Tom Ridge, said he urged the State College school board to reconsider the anti-harassment policy when they adopted it two years ago, but they persisted, prompting his lawsuit.

"If any American institution should teach about our constitutional rights and our sacred First Amendment, it is the public school," said Mr. Saxe.

Since 1969, the Supreme Court has said that schools can ban "lewd, vulgar or profane language," and regulate speech for a "legitimate pedagogical concern," wrote U.S. Circuit Judge Samuel A. Alito Jr., who made the ruling along with Judge Marjorie O. Rendell and Judge John M. Duhe Jr., a senior judge from the U.S. Court of Appeals for the Fifth Circuit, who sat on the Third Circuit panel by designation.

However, noted Judge Alito, "Speech falling outside of these categories … may be regulated only it if would substantially disrupt school operations or interfere with the rights of others."

Speaking from his home yesterday, Mr. Saxe said he was pleased by the court's decision but noted his intent in the lawsuit has been misrepresented.

"All I'm hearing is this is about two kids who want to talk about homosexuality in school. That is not true," he said. "I stand for the Constitution and its principles. This lawsuit was about everyone's freedom of speech. I'm not using the Constitution to attack gay people."

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