- The Washington Times - Tuesday, February 27, 2001

Contemporary speech codes generally descend from the Pope's Index Liborum Prohibitorum. They blunt mental acuity, thwart psychological and emotional maturity and stunt the attributes of citizenship indispensable to a flourishing democracy. The last place they belong is in public schools tasked to educate impressionable youths as the nation's future leaders.
Democracy requires strong citizens who can brave disagreeable or even ugly speech and can fend for themselves in a civil manner among persons of sharply antagonistic views. Accordingly, federal courts and the First Amendment's denunciation of educational darkness, like the U.S. Third Circuit Court of Appeals in Saxe vs. State College Area School District (Feb. 14, 2001), deserve acclaim for saving the United States from calamitous effeteness.
Paternalistic speech codes have taken public schools by storm in recent years like the fad for computers in every classroom and the Internet as a substitute for exacting reading and writing. The codes customarily brim with sloppiness and confusion indicative of a need of school board members for immersion in remedial English. The Saxe case is emblematic.
In August 1999, with nothing better to do, the State College Area School District in Pennsylvania (SCASD) inaugurated an anti-harassment policy, a euphemism for a speech code. The district made no finding that harassing speech had recently climbed. Neither did it declare that the code was championed by allegedly harassed and demoralized students or their parents, or that harassment had arrested the intellectual or emotional development of even a single uncomplaining child. In sum, SCASD's embarkation on censorship seemed thoroughly gratuitous, an earmark of mind-numbing political correctness that disgraces most school districts.
A student reading SCASD's censorship code initially encounters a "general statement of policy" that delineates harassing and thus censored speech of breathtaking sweep. It makes the papal Liborum Prohibitorum a model of intellectual freedom in comparison. Illegal harassment is said to mean, inter alia, verbal … conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment."
The concept of "verbal conduct" might be complimented for its novelty, but not for its lucidity. It seems to belong in Lewis Carroll's Jabberwocky, and bewilders ordinary minds. Let us assume, nevertheless, that a student overcomes the District's mangling of the English language and treats the idea as synonymous with expression, which might be oral, written or otherwise.
Additional harassment mysteries immediately arise. Does expression based on "one's race, religion" etc. refer to an attribute of the speaker or of the target? Does a substantial interference with a student's educational performance require proof of plunging grades and test scores over time, or would a single subpar classroom performance qualify? And does a hostile or offensive educational environment reach a fleeting moment during a school day, or must it be enduring? The district's code is clueless on each question, an insult to the time-honored imperative of fair warning. No student, for instance, can know in advance the effects of his expression on another student and thus would need to take refuge in general muteness to insure against a speech code violation.
Moreover, after elaborating the meaning of harassment, the code adds a definition section that purports to do the same. But the two are discrepant. The definition section races beyond the initial meaning to snare expression "on the basis of such [personal characteristics] as clothing, physical appearance, social skills, peer group, income, intellect, educational program, hobbies or values, etc." Lawyers are required to determine how the twin meanings of harassment mesh.
The speech code's amplification of harassment would frighten any mortal into stupefaction. The policy thunders that prohibited offensive, denigrating or belittling expression occasioned by a personal characteristic may include unwelcome "unsolicited derogatory remarks, jokes, demeaning comments or behavior, slurs, mimicking, name calling, graffiti, innuendo [or] gestures."
Suppose a student calls a ninth grade classmate "unbrainy" for adding 0+0 incorrectly on a math exam. The speech code would seem violated if the classmate feels offended by the criticism because it pivoted on his deficient personal intellect.
Suppose a student belittles a classmate for values that celebrate anti-Semitism, racism, mob rule, avarice, dishonesty, gluttony or vice generally. The belittled feels emotionally stunned and offended by the unfriendly intellectual environment. Or suppose a vegetarian student denounces the omnivorous appetite of a fellow pupil, who then feels distraught and uncomfortably guilty about contributing to animal slaughter when eating a meat sandwich at lunch. Both are examples of violations of SCASD's censorship code. Furthermore, SCASD code conscripted all students and school employees as thought police to snitch on any suspected violator.
Writing for a unanimous three-judge panel in Saxe, Circuit Judge Judge Samuel A. Alito invalidated SCASD's ill-conceived warfare on the First Amendment. Genuine democracy necessitates citizens comfortable with a rough-and-tumble exchange of ideas that both ventilate personal frustrations and grievances and fosters self-doubting. The intimidating speech code that SCASD posted in school corridors and classrooms betrayed these urgent objectives by treating students as egg shell babies.
Enlightened citizens are made of sterner stuff.

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