Policies in Public Schools: Are They Vulnerable?
Martha McCarthy, Ph.D.
February 2001, the Third Circuit Court of Appeals rendered a surprising
ruling, Saxe v. State College Area School District, striking down
a Pennsylvania school district’s anti-harassment policy and thereby
overturning the lower court’s decision. The policy defines harassment
as “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.” The policy gives specific examples
of offending behaviors, such as slurs, graffiti and demeaning
Controversy arose because the plaintiffs feared reprisals under
the policy for voicing their religious views about moral issues
including the harmful effects of homosexuality. The federal district
court reasoned that the policy did no more than bar conduct already
impermissible under federal civil rights laws and thus ruled in
favor of the school district. Disagreeing, the appeals court found
the policy unconstitutionally over-broad and relied on cases from
higher education and non-school settings. Although the Third Circuit
acknowledged that the public school environment differs from other
contexts as to speech protections, it did not seem to apply this
On several occasions the Supreme Court has recognized that to
advance important government goals, student expression and behavior
in public schools can be subjected to constraints that exceed
those permissible on speech elsewhere. In addition to restrictions
on inflammatory, obscene and libelous expression that have traditionally
been upheld, school personnel can also prohibit student expression
that is disruptive, lewd or vulgar; threatens the rights of others;
or interferes with the school’s educational mission. Harassing
speech or conduct among public school students would seem to fall
within several of these prohibited categories.
To illustrate, if a student called a classmate derogatory names
because of a disability, the remarks would be inconsistent with
the school’s mission of inculcating basic democratic values, such
as civility and respect for diversity. Similarly, if a student
wrote racial slurs on a bathroom wall, the graffiti might be considered
inflammatory or at least pose the threat of a disruption. However,
the Third Circuit reasoned that the anti-harassment policy at
issue prohibited a substantial amount of non-vulgar, non-school-sponsored
student speech that would not lead to a disruption or interfere
with the rights of other students. The court had particular problems
with the “other personal characteristics” aspect of the policy,
reasoning that this provision would allow individuals to be punished
for almost any comments that someone might find offensive.
It remains to be seen whether the Third Circuit’s Saxe decision
is simply an outlier among cases involving students’ expression
rights or a harbinger of future rulings. If additional courts
should strike down school districts’ similar anti-harassment policies,
efforts to instill civil expression and conduct among public school
students could be significantly affected.
McCarthy, Ph.D. is the Chancellor Professor, School of Education,
Education Update, Inc., P.O. Box 20005, New York, NY 10001. Tel:
(212) 481-5519. Fax: (212) 481-3919. Email: firstname.lastname@example.org.
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the publisher. © 2001.