Academic journal article Journal of Law and Education

Anti-Harassment Policies in Public Schools: How Vulnerable Are They?

Academic journal article Journal of Law and Education

Anti-Harassment Policies in Public Schools: How Vulnerable Are They?

Article excerpt

The Third Circuit Court of Appeals rendered a surprising ruling in February, 2001, striking down a Pennsylvania school district's anti-harassment policy.1 Whether this ruling, Saxe v. State College Area School District, is simply an outlier or a harbinger of future decisions remains to be seen. If the latter, its implications for public school policies restricting student expression may be significant, because this federal appellate decision departs somewhat from the prevailing trend in First Amendment litigation governing students' expression rights in public education. This article briefly reviews Free Speech Clause cases involving public school students and how the Supreme Court and lower courts have interpreted the legal principles governing restrictions on expression in public fora compared to public schools, The Third Circuit's Saxe decision is then analyzed in some detail. The final section offers some observations as to why it will be problematic if other courts adopt the Third Circuit's Saxe rationale.

Evolution of Standards Protecting Student Expression in Public School

Courts consistently have ruled that inflammatory, obscene, and most libelous expression is outside the protective arm of the First Amendment.2 In addition, even some expression that cannot be restricted for adults is subject to limitations among public school children. In the landmark 1969 decision, Tinker v. Des Moines Independent School District, the Supreme Court acknowledged the special circumstances of the school environment and held that public schools could discipline students for their nonverbal expression of ideological views if such expression is likely to cause "a substantial disruption of or material interference with school activities"3 or to collide "with the rights of other students to be secure and to be let alone '4 While the Court in Tinker broke new ground in protecting students' rights to express ideological views in a nondisruptive manner, it "emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools."5 Verbal or symbolic harassing expression in public schools often has been considered either inflammatory or subject to the Tinker disruption standard.6

Starting in the mid-1980s the Supreme Court gave school personnel even more freedom to restrict student expression in public schools by recognizing circumstances where the forecast of disruption or interference with school activities or others' rights would not be required. In 1986, the Supreme Court delivered a significant decision, Bethel School District v. Fraser,7 upholding disciplinary action against a student for using a sexual metaphor in a nominating speech in a student government assembly. The Court held that vulgar, lewd, or indecent student expression is not constitutionally protected in public schools, although government restrictions on such expression might be impermissible in a public forum.8 Thus, the Court added another category of unprotected speech in public schools beyond libelous, inflammatory, and obscene expression that is not protected elsewhere.

The Court in Fraser emphasized that public schools have an important role in cultivating the "habits and manners of civility"9 essential in a democracy and that "schools must teach by example the shared values of a civilized social order."10 In essence, the Court declared that the teaching of civility and the inculcation of traditional values may at times override students' expression rights. Moreover, the Court reasoned that school authorities should make the determination as to what falls in this unprotected category of lewd, vulgar, or indecent expression. Quoting Justice Black's dissent in Tinker, the Court reiterated that the Federal Constitution does not require "teachers, parents, and elected school officials to surrender control of the American public school system to public school students. …

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