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            Title Saxe v. State College Area School District

 

            Date 2001

            By Alito

            Subject First Amendment\Freedom of Speech

                

 Contents

 

 

Page 1

LEXSEE 240 F.3D 200

DAVID WARREN SAXE; STUDENT DOE 1, by and through his next friend, DAVID WARREN SAXE; STUDENT DOE 2, by and through his next friend, DAVID WARREN SAXE, Appellants v. STATE COLLEGE AREA SCHOOL DISTRICT; CONSTANCE MARTIN, in her official capacity as President of the State College Area School District

No. 99-4081

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

240 F.3d 200; 2001 U.S. App. LEXIS 2179

May 23, 2000, Argued

February 14, 2001, Filed

PRIOR   HISTORY:             **1        ON   APPEAL   FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (Dist. Court No.  99-cv--01757).  District  Court  Judge:         James  F. McClure, Jr.

DISPOSITION: Judgment of the District Court reversed.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiffs sued defendants to  challenge  the  constitutionality  of  defendant  school district's anti-harassment policy, arguing that it violated the First Amendment's, U.S. Const. amend. I, guarantee of freedom of speech. The United States District Court for  the  Middle  District  of  Pennsylvania  granted  defen- dants' motion to dismiss, finding the policy constitutional. Plaintiffs appealed.

OVERVIEW: Defendant school district adopted an anti- harassment policy. Plaintiffs sued defendants, challeng- ing the policy's constitutionality. Plaintiffs argued that the policy was unconstitutional under the First Amendment's free speech clause. The district court determined that the policy was constitutional and granted defendants' motion to dismiss. The appellate court reversed the judgment. The district court was incorrect in its conclusion that harass- ment, as defined by federal and state anti-discrimination statutes,  is not entitled to First Amendment protection. In addition, the policy prohibited a substantial amount of speech that would not have constituted actionable harass- ment under either federal or state law. The appellate court determined that the policy was unconstitutionally over- broad because the policy prohibited a substantial amount of non-vulgar, non-sponsored student speech and the pol- icy's restrictions were not necessary to prevent substantial disruption or interference with the work of the school or

the rights of other students.

OUTCOME:  Judgment  was  reversed  because  the  pol- icy was unconstitutionally overbroad since it appeared to cover substantially more speech than could be prohibited under the Tinker substantial disruption test.

CORE  TERMS:  harassment,   First  Amendment,   of- fensive,   hostile,   verbal,   educational,   disruption,   re- ligious,   unwelcome,   sexual,   regulation,   color,   anti- discrimination,  religion,  expressive,  harasser,  national origin, complaining, disability, anti-harassment, offend, slurs,  interfere,  intimidating,  interfering,  gender,  view- point, sexual orientation, free speech, derogatory

LexisNexis(R) Headnotes

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN1  See 42 U.S.C.S. § 2000d.

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN2  See 20 U.S.C.S. § 1681(a).

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN3  29 U.S.C.S. § 794 of the Rehabilitation Act of 1973 makes it unlawful for programs receiving federal assis- tance to discriminate on the basis of disability or age. Education  Law  >  Discrimination  >  Gender  &  Sex Discrimination > Title IX > Coverage

HN4   Title  VI  of  the  Civil  Rights  Act  of  1964,  Title IX  of  the  Education  Amendments  of  1972,  and  the Rehabilitation Act of 1973 create a private right of action similar to that available under Title VII, which prohibits discrimination in the workplace.

240 F.3d 200, *; 2001 U.S. App. LEXIS 2179, **1

Page 2

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN5  A public school student may bring suit against a school under Title IX of the Education Amendments of

1972 for so-called "hostile environment" harassment. Education  Law  >  Discrimination  >  Gender  &  Sex Discrimination > Title IX > Coverage

HN6  Title IX of the Education Amendments of 1972 permits a plaintiff to recover damages from a federally funded  educational  institution  for  certain  cases  of  stu- dent-on--student  sexual  harassment.  To  recover  in  such a  case,  a  plaintiff  must  establish  sexual  harassment  of students that is so severe, pervasive, and objectively of- fensive,  and  that  so  undermines  and  detracts  from  the victims' educational experience, that the victim-students are effectively denied equal access to an institution's re- sources  and  opportunities.  This  determination  depends on a constellation of surrounding circumstances, expec- tations,  and relationships,  including,  but not limited to, the ages of the harasser and the victim, and the number of individuals involved.

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN7   In  a  student-on--student  sexual  harassment  case under Title IX of the Education Amendments  of 1972, damages are not available for simple acts of teasing and name-calling among school children,  even where these comments  target  differences  in  gender.  Rather,  private damages actions against the school are limited to cases is which the school acts with deliberate indifference to known acts of harassment, and those acts have a systemic effect on educational programs and activities. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN8  Non-expressive,  physically harassing conduct is entirely outside the ambit of the free speech clause. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN9   The  free  speech  clause  protects  a  wide  variety of  speech  that  listeners  may  consider  deeply  offensive, including  statements  that  impugn  another's  race  or  na- tional origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written ex- pression  on  such  topics,  however  detestable  the  views expressed may be, the court cannot turn a blind eye to the First  Amendment,  U.S.  Const.  amend.  I,  implications. Where  pure  expression  is  involved,  anti-discrimination law steers into the territory of the First Amendment. This is especially true because when anti-discrimination laws are applied to harassment claims founded solely on ver- bal insults, pictorial or literary matter, the statutes impose content-based, viewpoint-discriminatory restrictions on

speech.

Constitutional Law > Fundamental Freedoms > Time, Place & Manner Restrictions

HN10  A content-or viewpoint-based restriction is ordi- narily subject to the most exacting U.S. Const. amend. I scrutiny.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN11   Anti-discrimination  laws  are  not  categorically immune from First Amendment,  U.S. Const. amend. I, challenge when they are applied to prohibit speech solely on the basis of its expressive content. "Harassing" or dis- criminatory speech, although evil and offensive, may be used  to  communicate  ideas  or  emotions  that  neverthe- less implicate First Amendment protections. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.

Constitutional Law > Fundamental Freedoms > Time, Place & Manner Restrictions

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN12  Content-discriminatory speech restrictions may be  permissible  when  the  content  classification  merely happens to be associated with particular "secondary ef- fects" of the speech, so that the regulation is justified with- out reference to the content of the speech. However, the government may not prohibit speech under a "secondary effects" rationale based solely on the emotive impact that its offensive content may have on a listener. The emotive impact of speech on its audience is not a "secondary ef- fect." Nor may the restriction of expressive speech on the basis of its content be characterized as a mere "time, place and manner" regulation.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN13  Speech may be more readily subject to restric- tions when a school or workplace audience is "captive" and cannot avoid the objectionable speech. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN14  There is no categorical rule that divests "harass- ing"  speech,  as  defined  by  federal  anti-discrimination statutes, of U.S. Const. amend. I protection.

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN15  A public school may adopt regulations more pro- tective than existing law, provided that those regulations do not offend the United States Constitution.

240 F.3d 200, *; 2001 U.S. App. LEXIS 2179, **1

Page 3

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

HN16   Federal  anti-harassment  law  imposes  liability only  when  harassment  has  a  systemic  effect  on  educa- tional programs and activities.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN17  Undifferentiated fear or apprehension of distur- bance is not enough to overcome the right to freedom of expression.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN18  Regulation of student speech is generally permis- sible only when the speech would substantially disrupt or interfere  with  the  work  of  the  school  or  the  rights  of other students. This substantial disruption test requires a specific and significant fear of disruption, not just some remote apprehension of disturbance.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN19  The mere desire to avoid "discomfort" or "un- pleasantness"  is  not  enough  to  justify  restricting  stu- dent speech under the Tinker substantial disruption test. However, if a school can point to a well-founded expecta- tion of disruption--especially one based on past incidents arising  out  of  similar  speech--the  restriction  may  pass constitutional muster.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN20   There  is  no  U.S.  Const.  amend.  I  protection for "lewd," "vulgar," "indecent," and "plainly offensive" speech in school. A school is permitted to prohibit words that offend for the same reasons that obscenity offends. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN21  The question whether the First Amendment, U.S. Const.  amend.  I,  requires  a  school  to  tolerate  particu- lar student speech is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses  educators'  ability  to  silence  a  student's  per- sonal  expression  that  happens  to  occur  on  the  school premises. The latter question concerns educators' author- ity over school-sponsored publications, theatrical produc- tions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear  the  imprimatur  of  the  school.  Educators  are  enti- tled to exercise greater control over this second form of student expression.

Education  Law  >  Discrimination  >  Gender  &  Sex

Discrimination > Title IX > Coverage

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN22  When the State is the speaker, it may make con- tent-based  choices.  When  a  university  determines  the content of the education it provides,  it is the university speaking, and the government is permitted to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own mes- sage. It does not follow, however, that viewpoint-based restrictions  are  proper  when  the  university  does  not  it- self speak or subsidize transmittal of a message it favors but instead encourages a diversity of views from private speakers. A holding that the university may not discrim- inate  based  on  the  viewpoint  of  private  persons  whose speech it facilitates does not restrict the university's own speech, which is controlled by different principles. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN23  A school may categorically prohibit lewd, vul- gar or profane language. A school may regulate school- sponsored speech (that is,  speech that a reasonable ob- server would view as the school's own speech) on the ba- sis of any legitimate pedagogical concern. Speech falling outside of these categories is subject to the Tinker rule: it may be regulated only if it would substantially disrupt school operations or interfere with the right of others. Constitutional   Law   >   Fundamental   Freedoms   > Overbreadth & Vagueness

HN24   A  regulation  is  unconstitutional  on  its  face  on overbreadth grounds where there is a likelihood that the statute's very existence will inhibit free expression by in- hibiting the speech of third parties who are not before the court. To render a law unconstitutional, the overbreadth must  be  not  only  real  but  substantial  in  relation  to  the statute's plainly legitimate sweep.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Speech > Scope of Freedom

HN25  The mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.

Constitutional   Law   >   Fundamental   Freedoms   > Overbreadth & Vagueness

HN26  The elementary rule is that every reasonable con- struction must be resorted to,  in order to save a statute from unconstitutionality.

COUNSEL: BRYAN J. BROWN (Argued), STEPHEN M.  CRAMPTON,  BRIAN  FAHLING,  MICHAEL  J. DEPRIMO,  AFA  Center  for  Law  and  Policy,  Tupelo, MS. SCOTT WILLIAMS, Williamsport, PA, Counsel for Appellants.

240 F.3d 200, *; 2001 U.S. App. LEXIS 2179, **1

Page 4

JOHN   R.   MILLER,   JR.,   DAVID   B.   CONSIGLIO

(Argued), Miller, Kistler, Campbell, Miller, Williams & Benson, Inc., State College, PA, Counsel for Appellees.

JUDGES: Before:  ALITO, RENDELL, and DUHE, * Circuit Judges. RENDELL, Circuit Judge, concurring.

* The Honorable John M. Duhe, Jr., Senior Judge of the United States Court of Appeals for the Fifth Circuit, sitting by designation.

OPINIONBY: ALITO

OPINION:   *202

OPINION OF THE COURT

ALITO, Circuit Judge:

The plaintiffs in this case challenge the constitutional- ity of a public school district's "anti-harassment" policy, arguing that it violates the First Amendment's guarantee of freedom of speech. n1 The District Court, concluding that the policy prohibited no more speech than was already un- lawful under federal and state anti-discrimination **2  laws,  held  that  the  policy  is  constitutional  and  entered judgment for the school district. We reverse.

n1  Plaintiffs  also  assert  that  the  Policy  vio- lates the free speech guarantee of the Pennsylvania Constitution.  However,  plaintiffs  fail  to  present any authority to show that Pennsylvania's guaran- tees are any broader than the First Amendment's. Accordingly, we confine our discussion to the plain- tiffs' federal constitutional claims.

I. A.

In  August  1999,   the  State  College  Area  School

District ("SCASD") adopted an Anti-Harassment Policy

("the Policy"). The full text of the Policy is reproduced in the Appendix to this opinion; we will briefly review the most relevant portions here.

The Policy begins by setting forth its goal--"providing all students with a safe, secure, and nurturing school en- vironment"--and noting that "disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual." The second paragraph contains what

**3    appears to be the Policy's operative definition of harassment:

Harassment  means  verbal  or  physical  con-

duct based on one's actual or perceived race, religion, color, national origin, gender, sex- ual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a stu- dent's  educational  performance  or  creating an intimidating, hostile or offensive environ- ment.

The Policy continues by providing several examples of

"harassment":

Harassment can include any unwelcome ver- bal,   written  or  physical  conduct    *203  which offends, denigrates or belittles an in- dividual  because  of  any  of  the  characteris- tics described above. Such conduct includes, but  is  not  limited  to,  unsolicited  deroga- tory  remarks,  jokes,  demeaning  comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, stalking,  threatening,  bullying,  extorting or the display or circulation of written material or pictures.

These examples are followed by a lengthy section cap- tioned  "Definitions,"  which  defines  various  types  of prohibited  harassment,  including  "Sexual  harassment,"

"Racial and color harassment, **4    " "Harassment on the basis of religion," "Harassment based on national ori- gin," "Disability harassment," and "Other harassment" on the basis of characteristics such as "clothing, physical ap- pearance, social skills, peer group, intellect, educational program,  hobbies  or  values,  etc."  The  definitions  state that harassment "can include unwelcome verbal, written or physical conduct directed at" the particular character- istic. Examples of specific types of harassment are also provided.  For  example,  "Racial  and  color  harassment" is said to include "nicknames emphasizing stereotypes, racial slurs, comments on manner of speaking, and neg- ative references to racial customs." Religious harassment reaches "derogatory comments regarding surnames, reli- gious tradition, or religious clothing, or religious slurs or graffiti." National origins harassment includes "negative comments regarding surnames, manner of speaking, cus- toms, language, or ethnic slurs." Harassment on the basis of sexual orientation extends to "negative name calling and degrading behavior." Disability harassment encom- passes "imitating manner of speech or movement."

The Policy provides that "any harassment of a student by a member **5  of the school community is a violation of this policy." n2 It establishes procedures for the report- ing, informal mediation, and formal resolution of com-

240 F.3d 200, *203; 2001 U.S. App. LEXIS 2179, **5

Page 5

plaints. In addition, the Policy sets a list of punishments for  harassment,  "including  but  not  limited  to  warning, exclusion,  suspension,  expulsion,  transfer,  termination, discharge . . ., training, education, or counseling."

n2  The  school  community,   by  the  Policy's terms, "includes, but is not limited to, all students, school employees, contractors, unpaid volunteers, school board members, and other visitors." "School employees"  include,  but  are  not  limited  to,  "all teachers, support staff, administrators, bus drivers, custodians, cafeteria workers, coaches, volunteers, and agents of the school."

B.

Plaintiff David Saxe is a member of the Pennsylvania State Board of Education and serves as an unpaid volun- teer for SCASD. He is the legal guardian of both student- plaintiffs, who are enrolled in SCASD schools. After the Anti-Harassment Policy was adopted, Saxe **6    filed suit in District Court, alleging that the Policy was facially unconstitutional under the First Amendment's free speech clause. n3 In his Complaint, he alleged that

all  Plaintiffs  openly  and  sincerely  identify themselves as Christians. They believe, and their religion teaches, that homosexuality is a sin. Plaintiffs further believe that they have a right to speak out about the sinful nature and harmful effects of homosexuality. Plaintiffs also feel compelled by their religion to speak out on other topics, especially moral issues.

(App. 27.)  Plaintiffs further alleged that they feared that they were likely to be punished under the Policy for speak- ing  out  about  their  religious  beliefs,  engaging  in  sym- bolic activities reflecting those beliefs,  and distributing religious literature. (App. 27-28.)  They sought to have the Policy declared unconstitutionally vague and   *204  overbroad and its operation permanently enjoined.

n3  In  their  complaint,  plaintiffs  also  asserted a claim under the free exercise clause of the First Amendment,  but  they  do  not  press  this  claim  on appeal.

**7

The District  Court found that Saxe had standing to mount  a  facial  challenge  but  granted  SCASD's  motion to dismiss on the pleadings, holding that the Policy was facially  constitutional.  See  Saxe  v.  State  College  Area School District, 77 F. Supp. 2d 621 (M.D. Pa. 1999). The

Court found that the Policy's operative definition of ha- rassment was contained in its second paragraph, which, as the Court read it, prohibited "language or conduct which is  based  on  specified  characteristics  and  which  has  the effect of 'substantially interfering with a student's educa- tional performance' or which creates a hostile educational atmosphere." Id. at 625. The Court went on to observe that this standard is similar to "that used by courts and agencies to define harassment for purposes of Title VII, Title  IX,  the  Pennsylvania  Human  Relations  Act,  etc." Id.  Consequently,  the  Court  held  that  the  Policy  does not prohibit "anything that is not already prohibited by law" and therefore cannot be unconstitutional.  Id. at 626. Rejecting the plaintiffs' vagueness argument, the Court as- serted that "a more precise definition of harassment, like Justice Stewart's famous description **8   of 'pornogra- phy,' may be virtually impossible." Id. at 625. Plaintiffs appealed.

II.

The District Court dismissed the plaintiffs' free speech claims based on its conclusion that "harassment," as de- fined by federal and state anti-discrimination statutes, is not  entitled  to  First  Amendment  protection.  The  Court rejected the plaintiffs' characterization of the Policy as a

"hate speech code," holding instead that it merely pro- hibits harassment that is already unlawful under state and federal law. The Court observed:

Harassment   has   never   been   considered to   be   protected   activity   under   the   First Amendment. In fact, the harassment prohib- ited under the Policy already is unlawful. The Policy is a tool which gives SCASD the abil- ity  to  take  action  itself  against  harassment which may subject it to civil liability.

Saxe, 77 F. Supp. 2d at 627.

We disagree with the District Court's reasoning. There is  no  categorical  "harassment  exception"  to  the  First Amendment's free speech clause. Moreover, the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.

A.

Because the District **9    Court based its holding on a determination that the Policy simply replicated ex- isting  law,  we  begin  by  briefly  reviewing  the  scope  of the  applicable  anti-harassment  statutes.  At  the  federal level, discriminatory harassment in the public schools is governed  primarily  by  two  statutes.   HN1   Title  VI  of the  Civil  Rights  Act  of  1964  provides  that  "no  person

240 F.3d 200, *204; 2001 U.S. App. LEXIS 2179, **9

Page 6

in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."  42  U.S.C.  §  2000d.   HN2   Title  IX  of  the Education Amendments of 1972 further provides that "no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or ac- tivity receiving federal financial assistance." 20 U.S.C. §

1681(a). HN3  Although less often involved in harass- ment cases, the Rehabilitation Act of 1973, 29 U.S.C. §

794, makes it unlawful for programs receiving federal as- sistance to discriminate on the basis of disability **10  or age. n4

n4 The District Court also referred to two state statutes:   the  Pennsylvania  Human  Relations  Act

(PHRA) and the Pennsylvania criminal harassment statute.  We  do  not  believe  that  either  of  these statutes is particularly relevant to this appeal. The PHRA, 43 P.S.A. §§ 951 et seq., prohibits discrim- ination in employment, housing and public accom- modations  on  the  basis  of  "race,  color,  religious creed,  ancestry,  age,  sex,  national origin or non- job related handicap or disability." 43 P.S.A. § 953. It has not been construed, however, to create a cause of action for "hostile environment" harassment of a public school student. Pennsylvania's criminal ha- rassment statute makes it a criminal offense when a person, with intent to harass, annoy or alarm an- other person, subjects or threatens to subject that person to unwelcome physical contact; follows that person in or about a public place; or behaves in a manner which alarms or seriously annoys that per- son and that serves no legitimate purpose. 18 P.S.A.

§ 2709. Clearly, this law covers a much narrower range of conduct than is implicated by the SCASD Policy.

**11

*205   HN4  The federal courts have held that these statutes  create  a  private  right  of  action  similar  to  that available under Title VII, which prohibits discrimination in the workplace. HN5  Most significantly for this case, the Supreme Court has recognized that a public school student  may  bring  suit  against  a  school  under  Title  IX for so-called "hostile environment" harassment. Davis v. Monroe County Board of Education, 526 U.S. 629, 143 L. Ed. 2d 839, 119 S. Ct. 1661 (1999); Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 74-75, 117 L. Ed. 2d 208,

112 S. Ct. 1028 (1992).

The  concept  of  "hostile  environment"  harassment originated in a series of Title VII cases involving sexual harassment in the workplace. In Meritor Savings Bank v. Vinson,  477 U.S. 57,  91 L. Ed. 2d 49,  106 S. Ct. 2399

(1986), the Supreme Court held that Title VII prohibits abusive and discriminatory conduct that creates a "hostile environment"--that is, harassment so severe or pervasive as  "to  alter  the  conditions  of  the  victim's  employment and create an abusive working environment." Id. at 67. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 126 L. Ed.

2d 295, 114 S. Ct. 367 (1993), **12   the Court clarified that in order for conduct to constitute harassment under a

"hostile environment" theory, it must both: (1) be viewed subjectively as harassment by the victim and (2) be objec- tively severe or pervasive enough that a reasonable person would agree that it is harassment. See id. at 21-22. The Court emphasized that the objective prong of this inquiry must be evaluated by looking at the "totality of the cir- cumstances." "These may include," the Court observed,

"the frequency of the discriminatory conduct;  its sever- ity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at

23. See also Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 80, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998)

("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview."). In defining the contours of this concept, the Court has repeatedly stated that Title VII is not violated by the "mere utterance **13  of an . . . epithet which engenders offensive feelings in an employee" or by mere " 'discourtesy or rudeness,' unless so severe or pervasive as to constitute an objective change in  the  conditions  of  employment."  Faragher  v.  City  of Boca Raton, 524 U.S. 775, 787, 141 L. Ed. 2d 662, 118

S. Ct. 2275 (1998).

The Supreme Court has extended an analogous cause of  action  to  students  under  Title  IX.  Originally,  such claims were limited to cases involving harassment of a student  by  a  teacher  or  other  agent  of  the  school.  See Franklin  v.  Gwinnett  County  Pub.  Schs.,  supra.   HN6  However, in 1999, in Davis v. Monroe County Board of Education, supra, the Court held that Title IX also permits a  plaintiff  to  recover  damages  from  a  federally  funded educational  institution  for  certain  cases  of  student-on-- student sexual harassment. To recover in such a case,

a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and   *206   that so un- dermines and detracts from the victims' edu- cational experience, that the victim-students

240 F.3d 200, *206; 2001 U.S. App. LEXIS 2179, **13

Page 7

are effectively denied equal access to an in- stitution's resources and opportunities.

**14    526 U.S. at 651. This determination "'depends on a constellation of surrounding circumstances, expecta- tions, and relationships,' including, but not limited to, the ages of the harasser and the victim, and the number of in- dividuals involved." Id. (quoting Oncale, 523 U.S. at 82).

HN7  The Court stressed that "damages are not available for simple acts of teasing and name-calling among school children, even where these comments target differences in gender." 526 U.S. at 652. Rather, private damages ac- tions against the school are limited to cases is which the school "acts with deliberate indifference to known acts of harassment," and those acts have "a systemic effect on educational programs and activities." Id. at 633, 653. n5

n5 Although both Franklin and Davis dealt with sexual harassment under Title IX, we believe that their  reasoning  applies  equally  to  harassment  on the  basis  of  the  personal  characteristics  enumer- ated  in  Title  VI  and  other  relevant  federal  anti- discrimination statutes. Accord Monteiro v. Tempe Union  High  Sch.  Dist.,  158  F.3d  1022,  1032-33

(9th Cir. 1998) (applying Title VI to student-on-- student racial harassment).

**15

B.

With  this  framework  in  mind,  we  now  turn  to  the District  Court's  assertion  that  "harassment  has  never been considered to be protected activity under the First Amendment." The District Court's categorical pronounce- ment exaggerates the current state of the case law in this area.

HN8   There  is  of  course  no  question  that  non- expressive, physically harassing conduct is entirely out- side the ambit of the free speech clause. HN9  But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs. See, e.g.,  Brandenburg v. Ohio,  395 U.S. 444,  23 L. Ed. 2d

430, 89 S. Ct. 1827 (1969); Cantwell v. Connecticut, 310

U.S. 296,  84 L. Ed. 1213,  60 S. Ct. 900 (1940). When laws against harassment attempt to regulate oral or writ- ten  expression  on  such  topics,  however  detestable  the views expressed may be, we cannot turn a blind eye to the First Amendment implications. "Where pure expression is involved," anti-discrimination law "steers into the terri- tory of the First Amendment." DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 596 (5th Cir. 1995).

**16

This is especially true because,  as the Fifth Circuit has noted, when anti-discrimination laws are "applied to

. . . harassment claims founded solely on verbal insults, pictorial or literary matter, the statutes impose  content- based, viewpoint-discriminatory restrictions on speech." DeAngelis, 51 F.3d at 596-97. Indeed, a disparaging com- ment directed at an individual's sex, race, or some other personal characteristic has the potential to create an "hos- tile  environment"--and  thus  come  within  the  ambit  of anti-discrimination laws--precisely because of its sensi- tive subject matter and because of the odious viewpoint it expresses. n6

n6  Most  commentators  including  those  who favor  and  oppose  First  Amendment  protection for   harassing   speech,   agree   that   federal   anti- discrimination law regulates speech on the basis of content and viewpoint. See, e.g., Deborah Epstein, Can  a  "Dumb  Ass  Woman"  Achieve  Equality  in the Workplace?   Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399,

433 (1996); Eugene Volokh, How Harassment Law

Restricts Free Speech, 47 Rutgers L. Rev. 563, 571-

72 (1995); Suzanne Sangree, Title VII Prohibitions Against  Hostile  Environment  Sexual  Harassment and the First Amendment:  No Collision in Sight,

47  Rutgers  L.  Rev.  461,  477  (1995);  Richard  H. Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994

Sup. Ct. L. Rev. 1, 8 (1994); Kingsley R. Browne, Title  VII  as  Censorship:              Hostile-Environment Harassment  and  the  First  Amendment,  52  Ohio State L.J. 481, 481 (1991); Marcy Strauss, Sexist Speech  in  the  Workplace,  25  Harv.  C.R.-C.L.  L. Rev. 1, 32-33 (1990). But see Charles R. Calleros, Title  VII  and  the  First  Amendment:                 Content- Neutral  Regulation,   Disparate  Impact,   and  the

"Reasonable Person", 58 Ohio St. L.J. 1217 (1997).

**17

*207     HN10  This sort of content-or viewpoint- based restriction is ordinarily subject to the most exacting First Amendment scrutiny. This point was dramatically il- lustrated in R.A.V. v. City of St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), in which the Supreme Court  struck  down  a  municipal  hate-speech  ordinance prohibiting "fighting words" that aroused "anger,  alarm or resentment on the basis of race, color, creed, religion or  gender."  Id.  at  377.  While  recognizing  that  fighting words generally are unprotected by the First Amendment, the Court nevertheless found that the ordinance unconsti-

240 F.3d 200, *207; 2001 U.S. App. LEXIS 2179, **17

Page 8

tutionally discriminated on the basis of content and view- point:

Displays   containing   some   words--odious racial epithets, for example--would be pro- hibited to proponents of all views. But "fight- ing  words"  that  do  not  themselves  invoke race,   color,   creed,   religion,   or  gender-- aspersions  upon  a  person's  mother,  for  ex- ample--would seemingly be usable ad libi- tum in the placards of those arguing in favor of racial,  color,  etc. tolerance and equality, but could not be used by that speaker's oppo- nents.

Id.  at  391.  Striking  down  the  law,  the   **18    Court concluded that "the point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of content." Id. at 392.

Loosely worded anti-harassment laws may pose some of the same problems as the St. Paul hate speech ordi- nance: they may regulate deeply offensive and potentially disruptive  categories  of  speech  based,  at  least  in  part, on subject matter and viewpoint. Although the Supreme Court has written extensively on the scope of workplace harassment, it has never squarely addressed whether ha- rassment, when it takes the form of pure speech, is exempt from First Amendment protection. See Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 n.6 (5th Cir. 1996)

(noting that the Supreme Court has "provided little guid- ance whether conduct targeted for its expressive content

. . . may be regulated under Title VII"); Aguilar v. Avis

Rent  A  Car  Sys.,  Inc.,  21  Cal.  4th  121,  980  P.2d  846,

863 (Cal. 1999) (Werdegar, J., concurring) ("No decision by the United States Supreme Court has, as yet, declared that the First Amendment permits restrictions on speech creating a hostile work environment.   **19   "). n7

n7  Hishon  v.  King  &  Spalding,  467  U.S.  69,

81  L.  Ed.  2d  59,  104  S.  Ct.  2229  (1984),  which SCASD  cites  for  the  proposition  that  Title  VII's prohibitions do not offend the First Amendment, is inapposite. Hishon, which was decided years before the Supreme Court even recognized the existence of  a  "hostile  environment"  cause  of  action  under that statute, only addressed the constitutionality of the statute's application to quid pro quo harassment.

SCASD relies heavily on a passage in R.A.V. in which the Court suggested in dictum that at least some harassing speech does not warrant First Amendment protection:

Since words in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the nation's defense  secrets)  a  particular  content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of  a  statute  directed  at  conduct  rather  than speech citing Barnes v. Glen Theatre, Inc.,

501 U.S. 560, 571, 115 L. Ed. 2d 504, 111

S. Ct. 2456 (1991); **20   FTC v. Superior

Court  Trial  Lawyers  Assn.,  493  U.S.  411,

425-432, 107 L. Ed. 2d 851, 110 S. Ct. 768

(1990);  and  United  States  v.  O'Brien,  391

U.S. 367, 376-377,   *208   20 L. Ed. 2d 672,

88 S. Ct. 1673 (1968) . Thus, for example, sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual dis- crimination in employment practices. Where the government does not tar get conduct on the basis of its expressive content,  acts are not shielded from regulation merely because they express a discriminatory idea or philos- ophy.

R.A.V., 505 U.S. at 389 (other citations omitted) (empha- sis added).

This passage suggests that government may constitu- tionally prohibit speech whose non-expressive qualities promote discrimination. For example, a supervisor's state- ment "sleep with me or you're fired" may be proscribed not on the ground of any expressive idea that the state- ment communicates, but rather because it facilitates the threat of discriminatory conduct. Despite the purely ver- bal quality of such a threat, it surely is no more "speech" for First Amendment purposes than the robber's demand

**21   "your money or your life." Accord NLRB v. Gissel

Packing Co., 395 U.S. 575, 617, 618, 23 L. Ed. 2d 547,

89 S. Ct. 1918 (1969) (holding that employer's "threat of retaliation" on basis of union membership was "without the protection of the First Amendment") (citation and in- ternal quotation marks omitted). n8 Similarly, we see no constitutional problem with using an employer's offensive speech as evidence of motive or intent in a case involving an allegedly discriminatory employment action. Accord Dawson v. Delaware, 503 U.S. 159, 117 L. Ed. 2d 309, 112

S. Ct. 1093 (1992) ("The Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment.").

240 F.3d 200, *208; 2001 U.S. App. LEXIS 2179, **21

Page 9

n8  The  cases  cited  in  R.A.V.  each  upheld  a restriction  on  expressive  conduct  that  was  based solely on secondary effects of the speech that were merely incidental to its expressive content. In none of these cases, however, did the Court imply that the government may prohibit speech based on a desire to suppress the ideas it communicates. In Barnes, the Court found that the state's legitimate interest in preventing public nudity permitted it to enforce a public indecency statute against a nude dancing establishment:

We do not think that when Indiana ap- plies  its  statute  to  the  nude  dancing in  these  nightclubs  it  is  proscribing nudity because of the erotic message conveyed by the dancers. . . . The per- ceived  evil  that  Indiana  seeks  to  ad- dress is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey lit- tle if any erotic message, yet the State still seeks to prevent it. Public nudity is the evil the State seeks to prevent, whether or not it is combined with ex- pressive activity.

Barnes,  501  U.S.  at  570.  Similarly,  in  Supreme Court  Trial  Lawyers,  the  Court  upheld,  against First Amendment challenge, the application of the Sherman Act against boycotters based on the boy- cott's economic effects:

A  nonviolent  and  totally  voluntary boycott may have a disruptive effect on local economic conditions. This Court has recognized the strong governmen- tal  interest  in  certain  forms  of  eco- nomic  regulation,  even  though  such regulation may have an incidental ef- fect on rights of speech and associa- tion.

Supreme  Court  Trial  Lawyers,  493  U.S.  at  428

n.12 (quoting NAACP v. Claiborne Hardware Co.,

458 U.S. 886, 912, 73 L. Ed. 2d 1215, 102 S. Ct.

3409 (1982)). Finally, in O'Brien, the Court found no  First  Amendment  impediment  to  prosecuting anti-war protestors who had violated federal law by burning their draft cards:

Even   on   the   assumption   that   the alleged   communicative   element   in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not  necessarily  follow  that  the  de- struction of a registration certificate is constitutionally  protected  activity.  .  .

.  The  many  functions  performed  by Selective Service certificates establish beyond doubt that Congress has a le- gitimate and substantial interest in pre- venting their wanton and unrestrained destruction and assuring their contin- uing availability by punishing people who knowingly and wilfully destroy or mutilate them.

O'Brien, 391 U.S. at 376, 380. Accord Wisconsin v. Mitchell, 508 U.S. 476, 487-88, 113 S. Ct. 2194,

124 L. Ed. 2d 436 (1993) (noting that conduct not targeted on the basis of its expressive content may be regulated under Title VII).

**22     *209   HN11  The previously quoted pas- sage  from  R.A.V.,  however,  does  not  necessarily  mean that  anti-discrimination  laws  are  categorically  immune from First Amendment challenge when they are applied to prohibit speech solely on the basis of its expressive con- tent. See DeAngelis, 51 F.3d at 596 n.7; John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.39, at 1116

(5th  ed.  1995).  "Harassing"  or  discriminatory  speech, although evil and offensive,  may be used to communi- cate ideas or emotions that nevertheless implicate First Amendment protections. As the Supreme Court has em- phatically declared,  "if there is a bedrock principle un- derlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct.

2533 (1989).

For this reason, we cannot accept SCASD's contention that the application of anti-harassment law to expressive speech  can  be  justified  as  a  regulation  of  the  speech's

"secondary effects." HN12  R.A.V. did acknowledge that content-discriminatory  speech  restrictions  may  be  per- missible when the content classification **23    merely

"happens to be associated with particular 'secondary ef- fects' of the speech, so that the regulation is 'justified with- out reference to the content of the . . . speech.' " R.A.V., 505

U.S. at 389 (quoting Renton v. Playtime Theatres,  Inc.,

475 U.S. 41, 48, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986)).

The Supreme Court has made it clear, however, that the

240 F.3d 200, *209; 2001 U.S. App. LEXIS 2179, **23

Page 10

government may not prohibit speech under a "secondary effects" rationale based solely on the emotive impact that its offensive content may have on a listener:  "Listeners' reactions to speech are not the type of 'secondary effects' we referred to in Renton. . . . The emotive impact of speech on its audience is not a 'secondary effect.' " Boos v. Barry,

485  U.S.  312,  321,  99  L.  Ed.  2d  333,  108  S.  Ct.  1157

(1988); see also United States v. Playboy Entertainment

Group, 529 U.S. 803, 120 S. Ct. 1878, 1885, 146 L. Ed.

2d 865 (2000) ("The overriding justification for the reg- ulation is concern for the effect of the subject matter on

listeners  . . . . This is the essence of content-based reg- ulation."); Forsyth County v. Nationalist Movement, 505

U.S. 123, 134, 120 L. Ed. 2d 101, 112 S. Ct. 2395 (1992)

**24    ("Listeners' reaction to speech is not a content- neutral basis for regulation."). Nor do we believe that the restriction of expressive speech on the basis of its content may be characterized as a mere "time, place and manner" regulation. See Reno v. ACLU, 521 U.S. 844,  879,  138

L. Ed. 2d 874, 117 S. Ct. 2329 (1997) ("time, place and manner" analysis not applicable when statute "regulates speech on the basis of its content"); Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1, 20, 89 L. Ed. 2d

1, 106 S. Ct. 903 (1986) ("for a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech"); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536, 65 L. Ed. 2d 319, 100 S. Ct.

2326 (1980) ("a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech").

In  short,  we  see  little  basis  for  the  District  Court's sweeping  assertion  that  "harassment"--at  least  when  it consists of speech targeted solely on the basis of its ex- pressive content--"has never been considered to be pro- tected activity under the First Amendment." Such a **25  categorical rule is without precedent in the decisions of the Supreme Court or this Court, and it belies the very real ten- sion between anti-harassment laws and the Constitution's guarantee of freedom of speech.

We  do  not  suggest,  of  course,  that  no  application of anti-harassment law to expressive speech can survive First Amendment scrutiny. Certainly, preventing discrim- ination in the workplace--and in the schools--is not only a legitimate, but a compelling, government interest. See, e.g., Board of Directors of Rotary Int'l   *210   v. Rotary Club  of  Duarte,  481  U.S.  537,  549,  95  L.  Ed.  2d  474,

107  S.  Ct.  1940  (1987).   HN13   And,  as  some  courts and commentators have suggested, speech may be more readily subject to restrictions when a school or workplace audience is "captive" and cannot avoid the objectionable speech. See, e.g., Aguilar, 980 P.2d at 871-73 (Werdegar, J.,  concurring).   HN14   We  simply  note  that  we  have found no categorical rule that divests "harassing" speech,

as defined by federal anti-discrimination statutes, of First

Amendment protection. C.

In any event, we need not map the precise boundary between permissible anti-discrimination legislation and impermissible **26    restrictions on First Amendment rights today. Assuming for present purposes that the fed- eral anti-discrimination laws are constitutional in all of their applications to pure speech, we note that the SCASD Policy's reach is considerably broader.

For one thing, the Policy prohibits harassment based on personal characteristics that are not protected under federal  law.  Titles  VI  and  IX,  taken  together  with  the other  relevant  federal  statutes,  cover  only  harassment based on sex,  race,  color,  national origin,  age and dis- ability. The Policy, in contrast, is much broader, reaching, at  the  extreme,  a  catch-all  category  of  "other  personal characteristics" (which, the Policy states, includes things like "clothing," "appearance," "hobbies and values," and

"social skills"). Insofar as the policy attempts to prevent students from making negative comments about each oth- ers' "appearance," "clothing," and "social skills," it may be brave,  futile,  or merely silly. But attempting to pro- scribe  negative  comments  about  "values,"  as  that  term is  commonly  used  today,  is  something  else  altogether

.  By  prohibiting  disparaging  speech  directed  at  a  per- son's  "values,"  the  Policy  strikes  at  the  heart  of  moral

**27    and political discourse--the lifeblood of consti- tutional 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, but rather the reason for its protection: "a principal 'func- tion of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfac- tion with conditions as they are, or even stirs people to anger.' " Texas v. Johnson, 491 U.S. 397, 408-09, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 93 L. Ed. 1131, 69 S. Ct. 894

(1949)). No court or legislature has ever suggested that unwelcome speech directed at another's "values" may be prohibited under the rubric of anti-discrimination.

HN15   We  do  not  suggest,  of  course,  that  a  pub- lic school may never adopt regulations more protective than existing law; it may, provided that those regulations do not offend the Constitution. Such regulations cannot be insulated from First Amendment challenge, however, based on the argument that they do no more than prohibit conduct that **28   is already unlawful.

Moreover, the Policy's prohibition extends beyond ha- rassment that objectively denies a student equal access to

240 F.3d 200, *210; 2001 U.S. App. LEXIS 2179, **28

Page 11

a school's education resources. Even on a narrow reading, the Policy unequivocally prohibits any verbal or physical conduct  that  is  based  on  an  enumerated  personal  char- acteristic and that "has the purpose or effect of substan- tially interfering with a student's educational performance or creating an intimidating, hostile or offensive environ- ment."  (emphasis  added).   HN16   Unlike  federal  anti- harassment law,  which imposes liability only when ha- rassment has "a systemic effect on educational programs and activities," Davis, 526 U.S. at 633 (emphasis added), the Policy extends to speech that merely has the "purpose" of harassing another. This formulation, by focusing on the speaker's motive rather than the effect of speech on the learning   *211   environment, appears to sweep in those

"simple acts of teasing and name-calling" that the Davis

Court explicitly held were insufficient for liability. D.

The District Court justifies its ruling by a syllogism:

(1) the SCASD Policy covers only speech that is already prohibited under federal and state anti-harassment **29  laws;  (2) such prohibited speech is not entitled to First Amendment protection; (3) therefore, the Policy poses no First Amendment problems. This reasoning is flawed in both its major and minor premises. First, the Policy--even narrowly  interpreted--covers  substantially  more  speech than applicable federal and state laws. Second, the courts have  never  embraced  a  categorical  "harassment  excep- tion" from First Amendment protection for speech that is within the ambit of federal anti-discrimination laws.

III.

Accordingly,  we  must  examine  whether  the  Policy may  be  justified  as  a  permissible  regulation  of  speech within the schools.

A.

We  begin  by  reviewing  the  Supreme  Court's  cases demarcating  the  scope  of  a  student's  right  to  freedom of expression while in school. n9 The Court set out the framework for student free speech claims in Tinker v. Des Moines Independent Community School District, 393 U.S.

503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). In Tinker, a group of students was suspended for wearing black arm- bands to protest American involvement in the Vietnam War.  The  Court  held  that  the  wearing  of  the  armbands to make a political statement was "closely akin to 'pure speech'   **30   " and thus was constitutionally protected. Id. at 505. Taking as its premise that "it can hardly be argued that either students or teachers shed their consti- tutional rights to freedom of speech or expression at the schoolhouse gate," id. at 506, the Court reasoned that

the school officials banned and sought to pun- ish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of the petitioners. There  is  here  no  evidence  whatever  of  the petitioners'  interference,  actual  or  nascent, with the school's work or of collision with the rights of other students to be secure and left  alone.  Accordingly,  this  case  does  not concern speech or action that intrudes upon the work of the school or the rights of other students.

Id. at 504. HN17  Significantly, the Court emphasized that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expres- sion." Id. at 508.

n9  We  recognize  that  the  SCASD  Policy  re- stricts the speech, not only of students, but also of teachers, volunteers and other adult members of the

"school community." Because we conclude, how- ever,  that the Policy fails under the less stringent standards for the restriction of student speech, we need not address this matter further .

**31

HN18   Under  Tinker,  then,  regulation  of  student speech  is  generally  permissible  only  when  the  speech would substantially disrupt or interfere with the work of the school or the rights of other students. As subsequent federal cases have made clear, Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance. In Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992), for exam- ple, a middle school punished students who wore "SCAB" buttons to protest replacement teachers during a strike. Because  the  school  had  failed  to  present  any  evidence that the buttons were "inherently disruptive" to school ac- tivities, the court held that students could proceed with their First Amendment claim. In Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (S.D. Tex.

1997),  a  high       *212      school  student  challenged  his school's policy against gang-related apparel. The school applied the ban to prohibit the plaintiff, a devout Catholic, from wearing a rosary to school on the ground that some gangs had adopted the rosary as their identifying sym- bol. The court held that the ban failed to satisfy Tinker's substantial **32   disruption test:

Although Plaintiffs wore their rosaries out- side their shirts for several months, they were

240 F.3d 200, *212; 2001 U.S. App. LEXIS 2179, **32

Page 12

never misidentified as gang members nor ap- proached by gang members. There also was no evidence that they attracted the attention of other students because of their rosaries. . .

. Accordingly, the Court finds that there was insufficient evidence of actual disruption at New Caney High School, or that there was substantial  reason  for  NCISD  to  anticipate a disruption,  to justify the infringement on Plaintiffs' religiously-motivated speech.

Chalifoux, 976 F. Supp. at 667. Finally, in Clark v. Dallas Independent School District, 806 F. Supp. 116, 120 (N.D. Tex. 1992), the court held that a high school could not prohibit its students from distributing religious tracts on school grounds. Again citing Tinker, the court held that

"Defendants have failed to establish that Plaintiffs' dis- tribution of the religious tracts gave rise to a material or substantial disruption of the operation" of the school.  Id. at 120. Noting that the only evidence of disruption was the objection of several other students, the court observed that "if school **33   officials were permitted to prohibit expression to which other students objected, absent any further justification, the officials would have a license to prohibit virtually every type of expression." Id.

The Tenth Circuit's recent decision in West v. Derby

Unified School District No. 260, 206 F.3d 1358 (10th Cir.

2000), which reached a different result, nevertheless con- firms Tinker's requirements of specificity and concrete- ness. In West, a middle school student was suspended for drawing a Confederate flag in math class under a school policy providing that a "student shall not racially harass or intimidate another student by name calling, using racial or derogatory slurs, or  wearing or possession of items depicting or implying racial hatred or prejudice." Id. at

1361.  The  Court  upheld  the  suspension  under  Tinker's substantial  disruption  standard,  finding  that  the  school had demonstrated a concrete threat of substantial disrup- tion:

Based upon recent past events, Derby School District  officials  had  reason  to  believe  that a  student's  display  of  the  Confederate  flag might cause disruption and interfere with the rights of other students to be secure **34  and let alone. . . . The district experienced a series of racial incidents including "hos- tile  confrontations"  and  at  least  one  fight  in 1995, some of which were related to the Confederate flag. . . . The Racial Harassment policy enacted in response to this situation was clearly something more than a mere de-

sire to avoid the discomfort and unpleasant- ness  that  always  accompany  an  unpopular viewpoint.  The  history  of  racial  tension  in the district made administrators' and parents' concerns about future substantial disruptions from possession of Confederate flag symbols at school reasonable.

Id. at 1366 (citation omitted). HN19  As West makes clear, the mere desire to avoid "discomfort" or "unpleas- antness" is not enough to justify restricting student speech under Tinker. However, if a school can point to a well- founded expectation of disruption--especially one based on past incidents arising out of similar speech--the re- striction may pass constitutional muster.

Since  Tinker,  the  Supreme  Court  has  carved  out  a number of narrow categories of speech that a school may restrict even without the threat of substantial disruption. In Bethel School District No. 403 v. Fraser, 478 U.S. 675,

92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986), **35  the Court upheld the school's suspension of a high school student

*213   who, at a school assembly, nominated a peer for class office through "an elaborate, graphic, and explicit sexual metaphor." Id. at 677. Holding that the student's expression  was  not  protected  by  the  First  Amendment, the Court reasoned that

the schools, as instruments of the state, may determine that the essential lessons of civil, mature  conduct  cannot  be  conveyed  in  a school that tolerates lewd, indecent, or offen- sive speech and conduct such as that indulged in by this confused boy.

Id. at 683. Distinguishing Cohen v. California, 403 U.S.

15,  29 L. Ed. 2d 284,  91 S. Ct. 1780 (1971), in which the Court struck down an adult's conviction for wearing a jacket bearing an obscenity in a public courthouse, the Court explained that

it does not follow . . . that, simply because the  use  of  an  offensive  form  of  expression may not be prohibited to adults making what the  speaker  considers  a  political  point,  the same latitude must be permitted to children in public school. . . . "The First Amendment gives  a  high  school  student  the  classroom right to wear Tinker's armband,   **36   but not Cohen's jacket."

Fraser,  478  U.S.  at  683  (citations  omitted).   HN20

240 F.3d 200, *213; 2001 U.S. App. LEXIS 2179, **36

Page 13

According to Fraser, then, there is no First Amendment protection for "lewd," "vulgar," "indecent," and "plainly offensive" speech in school. Fraser permits a school to prohibit words that "offend for the same reasons that ob- scenity  offends"--a  dichotomy  neatly  illustrated  by  the comparison  between  Cohen's  jacket  and  Tinker's  arm- band.  Fraser, 478 U.S. at 685 (quoting FCC v. Pacifica Foundation,  438 U.S. 726,  746,  57 L. Ed. 2d 1073,  98

S. Ct. 3026 (1978)); see also Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 286 n.2, 98 L. Ed. 2d 592,

108 S. Ct. 562 (Brennan, J., dissenting) (Fraser exception limited "to the appropriateness of the manner in which the message is conveyed, not of the message's content"); East High Gay/Straight Alliance v. Board of Educ. of Salt Lake City Sch. Dist., 81 F. Supp. 2d 1166, 1193 (D. Utah 1999)

("Fraser speaks to the form and manner of student speech, not its substance. It addresses the mode of expression, not its content or viewpoint.").

Finally,  in Hazelwood School District v. Kuhlmeier,

484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988),

**37     the  Court  upheld,   against  First  Amendment challenge,  a  principal's  deletion  of  student  articles  on teen  pregnancy  from  a  school-sponsored  newspaper. Distinguishing  Tinker,  the  Court  noted  the  school  had not opened the newspaper up as a public forum and there- fore could "exercise editorial control over the style and content of student speech in school-sponsored expressive activities as long as its  actions are reasonably related to legitimate pedagogical concerns." Id. at 273 (emphasis added). As the Court reasoned,

HN21    the   question   whether   the   First Amendment  requires  a  school  to  tolerate particular student speech--the question that we  addressed  in  Tinker--is  different  from the question whether  the First Amendment requires  a  school  affirmatively  to  promote particular student speech. The former ques- tion  addresses  educators'  ability  to  silence a student's personal expression that happens to  occur  on  the  school  premises.  The  lat- ter  question  concerns  educators'  authority over school-sponsored publications, theatri- cal productions, and other expressive activ- ities that students, parents, and members of the public might reasonably perceive to bear the  imprimatur  of  the   **38    school.  .  .  . Educators are entitled to exercise greater con- trol over this second form of student expres- sion . . . .

Id.  at  270-71.  In  Rosenberger  v.  Rector  &  Visitors

of  University  of  Virginia,  515  U.S.  819,  132  L.  Ed.

2d  700,  115  S.  Ct.  2510  (1995),  the  Court  made  clear that Hazelwood's permissive "legitimate pedagogical con- cern" test governs only when a student's school-sponsored speech   *214   could reasonably be viewed as speech of the school itself:

HN22   When  the  State  is  the  speaker,  it may make content-based choices. When the University determines the content of the edu- cation it provides, it is the University speak- ing, and we have permitted the government to regulate the content of what is or is not expressed  when  it  is  the  speaker  or  when it  enlists  private  entities  to  convey  its  own message. . . . It does not follow, however . . . that viewpoint-based restrictions are proper when  the  University  does  not  itself  speak or subsidize transmittal of a message it fa- vors  but  instead  encourages  a  diversity  of views from private speakers. A holding that the  University  may  not  discriminate  based on  the  viewpoint  of  private  persons  whose speech it facilitates **39   does not restrict the University's own speech,  which is con- trolled by different principles. See, e.g., . . . Hazelwood School Dist. v. Kuhlmeier, 484

U.S. at 270-72 .

Rosenberger,   515   U.S.   at   834.   Similarly,   a   post- Hazelwood case from the Seventh Circuit illustrates that school "sponsorship" of student speech is not lightly to be presumed. See Hedges v. Wauconda Comm. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993). In strik- ing  down  a  blanket  prohibition  against  distributing  re- ligious  materials  on  school  grounds,  the  Hedges  Court rejected  the  argument  that  the  ban  was  justified  under Hazelwood because observers might "infer that the school endorses whatever it permits":

The School District  proposes to throw up its hands, declaring that because misconcep- tions are possible it may silence its pupils, that the best defense against misunderstand- ing  is  censorship.  .  .  .  Public  belief  that the  government  is  partial  does  not  permit the government to become partial. Students therefore may hand out literature even if the recipients  would  misunderstand  its  prove- nance. The school's proper response is to edu- cate the audience **40   rather than squelch the speaker.

240 F.3d 200, *214; 2001 U.S. App. LEXIS 2179, **40

Page 14

Hedges, 9 F.3d at 1299; see also Burch v. Barker, 861

F.2d 1149, 1159 (9th Cir. 1998) ("under ground newspa- per" distributed on school grounds could not reasonably be viewed as school-sponsored).

To  summarize:       HN23   Under  Fraser,   a  school may categorically prohibit lewd,  vulgar or profane lan- guage. Under Hazelwood, a school may regulate school- sponsored speech (that is,  speech that a reasonable ob- server would view as the school's own speech) on the ba- sis of any legitimate pedagogical concern. Speech falling outside of these categories is subject to Tinker's general rule: it may be regulated only if it would substantially dis- rupt school operations or interfere with the right of others. See Chandler, 978 F.2d at 529; Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157, 166 (D. Mass. 1994).

IV.

We turn now to the SCASD Policy itself. Saxe levies facial challenges against the Policy on both overbreadth and vagueness grounds. Because we hold that the Policy, even narrowly read, is unconstitutionally overbroad, we do not reach the merits of Saxe's vagueness claim.

A.

HN24  A regulation is unconstitutional **41   on its face on overbreadth grounds where there is a "a likelihood that the statute's very existence will inhibit free expres- sion" by "inhibiting the speech of third parties who are not before the Court." Members of City Council v. Taxpayers for Vincent,  466 U.S. 789,  799,  80 L. Ed. 2d 772,  104

S. Ct. 2118 (1984). To render a law unconstitutional, the overbreadth must be "not only real but substantial in rela- tion to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).

On first reading, the Policy on its face appears both unconstitutionally vague   *215    and overbroad. As an initial  matter,  the  Policy  contains  several  separate  pas- sages, each of which could be read as embodying its op- erative definition of banned speech. The Policy's second paragraph sets forth one definition:

Harassment  means  verbal  or  physical  con- duct based on one's actual or perceived race, religion, color, national origin, gender, sex- ual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a stu- dent's  educational  performance  or  creating an intimidating, **42   hostile or offensive environment.

This, however, is immediately followed two paragraphs later by a statement that harassment under the Policy "can include any unwelcome verbal, written or physical con- duct which offends, denigrates or belittles an individual because of any of the characteristics described above." In addition, in a separate section, the Policy purports to set out "definitions" for various categories of harassment that do not always coincide with the above-quoted language. Religious harassment, for example, is defined as "unwel- come verbal, written or physical conduct directed at the characteristics of a person's religion, such as derogatory comments regarding surnames, religious tradition, or re- ligious clothing, or religious slurs, or graffiti."

Certainly, some of these purported definitions of ha- rassment are facially overbroad. No one would suggest that a school could constitutionally ban "any unwelcome verbal . . . conduct which offends . . . an individual be- cause of " some enumerated personal characteristics. Nor could the school constitutionally restrict, without more, any "unwelcome verbal . . . conduct directed at the char- acteristics of a person's religion. **43    " HN25  The Supreme Court has held time and again, both within and outside of the school context, that the mere fact that some- one  might  take  offense  at  the  content  of  speech  is  not sufficient justification for prohibiting it. See Tinker, 393

U.S. at 509 (school may not prohibit speech based on the

"mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint"); Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109

S. Ct. 2533 (1989) ("If there is a bedrock principle un- derlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."); Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572,

89 S. Ct. 1354 (1969) ("It is firmly settled that . . . the public expression of ideas may not be prohibited merely because  the  ideas  are  themselves  offensive  to  some  of their hearers."); see also Doe v. University of Michigan,

721 F. Supp. 852, 863 (E.D. Mich. 1989) (striking down university speech code:  "Nor could the University pro- scribe speech simply because it was found to be offensive, even gravely **44   so, by large numbers of people."). Before  declaring  the  Policy  unconstitutional,  how- ever,  we  must  first  determine  whether  it  is  susceptible to a reasonable limiting construction:   HN26  "the ele- mentary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitu- tionality." n10 Stretton v. Disciplinary Bd. of the Supreme Court of Pennsylvania, 944 F.2d 137, 144 (3d Cir. 1991)

(citations   *216    omitted);  see  also  Hoffman  Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 n.4, 71

L. Ed. 2d 362, 102 S. Ct. 1186 (1982) ("In evaluating a facial challenge to a state law,  a federal court must,  of

240 F.3d 200, *216; 2001 U.S. App. LEXIS 2179, **44

Page 15

course, consider any limiting construction."); Broadrick,

413  U.S.  at  617  n.16  ("a  federal  court  must  determine what a state statute means before it can judge its facial unconstitutionality").

n10 Saxe's citation to Hynes v. Mayor & Council of  Borough  of  Oradell,  425  U.S.  610,  48  L.  Ed.

2d 243, 96 S. Ct. 1755 (1976), ostensibly for the proposition that federal courts may not give a nar- rowing  construction  to  a  local  statute,  is  inappo- site. In Hynes, the New Jersey Supreme Court had already authoritatively construed the scope of the challenged statute. The U.S. Supreme Court held that the state court's narrowing construction failed to  solve  the  law's  vagueness  problems  and  that, in light of the existing authoritative interpretation, the  federal  courts  were  without  power  to  further limit  the  statute.  See  425  U.S.  at  622.  Here,  in contrast, the SCASD Policy has not been authori- tatively construed by the state courts, and we are therefore required to give it a reasonable narrowing construction if necessary to save it from unconsti- tutionality.

**45

When the Policy is read as a whole, it appears that its operative definition of prohibited harassment is contained in  the  above-quoted  second  paragraph,  which  requires that speech either "substantially interfere with a student's educational performance or create an intimidating, hostile or offensive environment." The Policy's fourth paragraph and  "Definitions"  section  could  reasonably  be  read  as merely listing examples of conduct that might (but would not necessarily) violate this operative definition. On this narrow reading, the second paragraph would supply the Policy's "formal" definition of prohibited harassment, but the  other  sections  of  the  Policy  could  still  be  relevant in clarifying vague or ambiguous terms in that operative definition.

So narrowed, the Policy would require the following elements before speech could be deemed harassing:  (1) verbal or physical conduct (2) that is based on one's actual or perceived personal characteristics and (3) that has the purpose or effect of either (3a) substantially interfering with a student's educational performance or (3b) creating an intimidating hostile, or offensive environment.

It is apparent from these elements that SCASD can- not **46   take solace in the relatively more per missive Fraser or Hazelwood standards. First, the Policy does not confine itself merely to vulgar or lewd speech; rather, it reaches  any  speech  that  interferes  or  is  intended  to  in- terfere  with  educational  performance  or  that  creates  or

is intended to create a hostile environment. While some Fraser-type  speech  may  fall  within  this  definition,  the Policy's scope is clearly broader. Second, the Policy does not  contain  any  geographical  or  contextual  limitations; rather, it purports to cover "any harassment of a student by a member of the school community." Thus, its stric- tures  presumably  apply  whether  the  harassment  occurs in a school sponsored assembly, in the classroom, in the hall between classes, or in a playground or athletic facil- ity. n11 Obviously, the Policy covers far more than just Hazelwood-type school-sponsored speech; it also sweeps in private student speech that merely "happens to occur on the school premises." Hazelwood, 484 U.S. at 271. As a  result,  SCASD  cannot  rely  on  Hazelwood's  more  le- nient "legitimate pedagogical concern" test in defending the Policy from facial attack.

n11 Indeed, Saxe even suggests that the Policy could  even  be  read  to  cover  conduct  occurring outside  of  school  premises.  This  reading  is  not implausible based on the Policy's plain language, and would raise additional constitutional questions. See,  e.g.,  Boucher v. School Board of the School District of Greenfield, 134 F.3d 821, 828 (7th Cir.

1998) ("school officials' authority over off-campus expression is much more limited than it is over ex- pression on school grounds"); Klein v. Smith, 635

F.  Supp.  1440  (D.  Me.  1986)  (student's  vulgarity directed  at  teacher  off  school  premises  was  "too attenuated to support discipline").

**47

In short, the Policy, even narrowly read, prohibits a substantial amount of non-vulgar, non-sponsored student speech. SCASD must therefore satisfy the Tinker test by showing that the Policy's restrictions are necessary to pre- vent substantial disruption or interference with the work of the school or the rights of other students. Applying this test,  we  conclude  that  the  Policy  is  substantially  over- broad.

As  an  initial  matter,  the  Policy  punishes  not  only speech  that  actually  causes  disruption,  but  also  speech that merely intends to do so: by its terms, it covers speech

"which has the purpose or effect of " interfering with ed- ucational performance   *217   or creating a hostile envi- ronment. This ignores Tinker's requirement that a school must  reasonably  believe  that  speech  will  cause  actual, material disruption before prohibiting it.

In addition,  even if the "purpose" component is ig- nored,  we  do  not  believe  that  prohibited  "harassment," as defined by the Policy, necessarily rises to the level of a substantial disruption under Tinker. We agree that the

240 F.3d 200, *217; 2001 U.S. App. LEXIS 2179, **47

Page 16

Policy's  first  prong,  which  prohibits  speech  that  would

"substantially interfere with a student's educational per- formance," may satisfy the **48   Tinker standard. The primary function of a public school is to educate its stu- dents; conduct that substantially interferes with the mis- sion is, almost by definition, disruptive to the school en- vironment.

The Policy's second criterion,  however--which pro- hibits speech that "creates an intimidating, hostile or of- fensive  environment"--poses  a  more  difficult  problem. There  are  several  possible  grounds  on  which  SCASD could  attempt  to  justify  this  prohibition.  First,  SCASD could  argue  that  it  has  an  interest  in  avoiding  liability for harassment under Franklin and Davis. However, be- cause the Policy prohibits substantially more conduct than would give rise to liability under these cases, this justifi- cation is unavailing.

Second,  SCASD could argue that speech creating a

"hostile environment" may be banned because it "intrudes upon . . . the rights of other students." Tinker, 393 U.S. at 504. The precise scope of Tinker's "interference with the  rights  of  others"  language  is  unclear;  at  least  one court  has  opined  that  it  covers  only  independently  tor- tious speech like libel, slander or intentional infliction of emotional distress. See Slotterback v. Interboro Sch. Dist.,

766 F. Supp. 280, 289 n.8 (E.D. Pa. 1991); **49    see also Kuhlmeier v. Hazelwood Sch. Dist., 795 F.2d 1368,

1375  (8th  Cir.),  rev'd  on  other  grounds,  484  U.S.  260,

98  L.  Ed.  2d  592,  108  S.  Ct.  562  (1986).  In  any  case, it is certainly not enough that the speech is merely of- fensive to some listener. See, e.g., Rivera v. East Otero School Dist., 721 F. Supp. 1189, 1191 (D. Colo. 1989). Because  the  Policy's  "hostile  environment"  prong  does not, on its face, require any threshold showing of severity or pervasiveness, it could conceivably be applied to cover any speech about some enumerated personal character- istics  the  content  of  which  offends  someone.  n12  This could include much "core" political and religious speech: the  Policy's  "Definitions"  section  lists  as  examples  of covered  harassment  "negative"  or  "derogatory"  speech about  such  contentious  issues  as  "racial  customs,"  "re- ligious  tradition,"  "language,"  "sexual  orientation,"  and

"values." Such speech, when it does not pose a realistic threat of substantial disruption, is within a student's First Amendment rights.

n12 Such a reading would be consistent with the Policy's very broad statement of purpose, which notes that "members of the school community are expected to treat each other with mutual respect" and that "disrespect among members of the school community is unacceptable behavior."

**50

Finally,  SCASD might argue that the "hostile envi- ronment" prohibition is required to maintain an orderly and non-disruptive educational environment. However, as Tinker made clear, the "undifferentiated fear or apprehen- sion of disturbance" is not enough to justify a restriction on  student  speech.  Although  SCASD  correctly  asserts that it has a compelling interest in promoting an educa- tional environment that is safe and conducive to learning, it fails to provide any particularized reason as to why it anticipates substantial disruption from the broad swath of student speech prohibited under the Policy.

The Policy, then, appears to cover substantially more speech than could be prohibited under Tinker's substan- tial disruption test. Accordingly, we hold that the Policy is unconstitutionally overbroad.   *218   V.

For the foregoing reasons, the judgment of the District

Court is reversed. 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

**51    are expected to treat each other with mutual re- spect. Disrespect among members of the school commu- nity 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 per- sonal characteristics, and which has the purpose or effect of  substantially  interfering  with  a  student's  educational performance or creating an intimidating, hostile or offen-

sive environment.

According to state law (18 Pa. C.S.A. 2709), an indi- vidual 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, writ-

240 F.3d 200, *218; 2001 U.S. App. LEXIS 2179, **51

Page 17

ten or physical conduct which offends, denigrates, or be- littles an individual because of any of the characteristics described above. Such **52  conduct includes, but is not limited to unsolicited derogatory remarks, jokes, demean- ing comments or behavior, slurs, mimicking, name call- ing, graffiti, innuendo, gestures, physical contact,   *219  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 ha- rassment based on race, color, religion, national origin, gender, sexual orientation, disability, and other forms of harassment. Harassment is not only a form of discrimi- nation, 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 ac- tion 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 **53   or participates in an investigation, proceeding or hearing relating to such ha- rassment. 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 re- porting, 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 **54   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, custo- dians, cafeteria workers, coaches, volunteers, and agents

of the school.

Sexual  harassment  means  unwelcome  sexual  ad- vances,  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 con- dition of a student's education;

(b)  submission  to  or  rejection  of  such conduct  by  a  student  is  used  as  a  compo- nent 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  in- timidating,  hostile  or  offensive  educational environment.

This  applies  whether  the  harassment  is  between  peo- ple of the same  or different gender. Sexual harassment can include unwelcome verbal, written or physical con- duct,  directed  at  or  related  to  a  person's  gender,  such as sexual gossip or personal comments of a sexual na- ture,   **55   sexually suggestive or foul language, sexual jokes, whistling, spreading rumors or lies of a sexual na- ture  about  someone,  demanding  sexual  favors,  forcing sexual  activity  by  threat  of  punishment  or  offer  of  ed- ucational reward, obscene graffiti, display or sending of pornographic pictures or objects, *220  offensive touch- ing, 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 char- acteristics of a person's race or color, such as nicknames emphasizing stereotypes, racial slurs, comments on man- ner of speaking, and negative reference to racial customs. Harassment on the basis of religion is unwelcome ver- bal, written or physical conduct directed at the character- istics of a person's religion, such as derogatory comments regarding surnames, religious tradition, or religious cloth-

ing, or religious slurs, or graffiti.

Harassment on the basis of national origin is unwel- come verbal, written or physical conduct directed at the characteristics of a person's national origin, such as nega- tive comments regarding surnames, manner of speaking, customs, language, or **56   ethnic slurs.

240 F.3d 200, *220; 2001 U.S. App. LEXIS 2179, **56

Page 18

Harassment on the basis of sexual orientation is un- welcome verbal, written or physical conduct directed at the characteristics of a person's perceived sexual orienta- tion, such as negative name calling and degrading behav- ior.

Disability harassment includes harassment based on a person's disabling mental or physical condition and in- cludes any unwelcome verbal,  written or physical con- duct, directed at the characteristics of a person's disabling condition, such as imitating manner of speech or move- ment, or interference with necessary equipment.

Other harassment on the basis of such things as cloth- ing,  physical  appearance,  social  skills,  peer  group,  in- come, intellect, educational program, hobbies or values, etc. may also cause or effect substantial interfering with a student's educational performance or creating an intim- idating,  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 oth- erwise witnesses harassment, which may be unlawful, or to whom such harassment is reported, must take prompt and **57   appropriate action to stop the harassment and to prevent its recurrence.

In the event that the school employee is unable to per- sonally take prompt and appropriate action, the employee must  report  the  incident  or  complaint  in  writing,  ordi- narily within one school day,  to the appropriate school complaint official(s) designated by this policy. Any stu- dent 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 designee or Personnel Director

If  one  of  the  harassment  complaint  officials  is  the person alleged to be engaged in the harassment, the com- plaint 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 **58   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 oppor- tunity 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 complain- ing 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 al- leged harasser may be accompanied by a person of his/her choice for support and guidance. If the complaining stu- dent  and  the  alleged  harasser  feel  that  a  resolution  has been achieved, then the conversation may remain confi- dential 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,   **59    the alleged ha- rasser, or the school employee/harassment complaint of- ficial,  chooses not to utilize the informal procedure,  or believes that the informal procedure has been unsuccess- ful,  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 ha- rassment 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 patter n of behavior.

(b) If a student under 18 years of age is involved, his/her parents shall be notified im- mediately unless, after consultation with the student, it is deter mined 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 com- plaint or report.

Step 2

240 F.3d 200, *221; 2001 U.S. App. LEXIS 2179, **59

Page 19

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 **60    incident(s) or circumstances giving rise to  the  complaint.  In  determining  whether  alleged  con- duct constitutes a violation of this policy, the harassment complaint  official  should  consider  the  surrounding  cir- cumstances,  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 vio- lation 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  investiga- tion of alleged harassment and may make any appropriate referrals for assistance, including but not limited to coun- seling, rape crisis intervention, notification of police, etc. The investigation will be completed as soon as practi- cable, 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 **61  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 ap-

pear 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 ac- tion 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 re- quirements of any applicable collective bargaining agree- ment, 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 **62    the written report of the investigation and results in his/her office. In the case of an investiga- tion conducted by the school district, the superintendent shall  receive  a  copy  of  the  investigation  report  and  re-

sults. 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  disci- plinary 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 in- tentional bodily harm. Sexual abuse is defined as any act or acts by a person involving sexual molestation or ex- ploitation of another person, including but not limited to incest,   **63    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 com- plaint through this policy, a person may choose to exercise other options, including but not limited to filing a com- plaint with outside agencies **64   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  Department             *223      of  Education,   or the  Office  for  Civil  Rights  of  the  U.S.  Department  of

240 F.3d 200, *223; 2001 U.S. App. LEXIS 2179, **64

Page 20

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 un- der a number of federal or state statutes (including Titles IV, 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   **65       Board  of  School Directors shall provide notice of the policy and procedures to students, custodial parents or guardians and school em- ployees.  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 pub- lication of the school district that sets forth the compre- hensive  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.

CONCURBY: RENDELL

CONCUR: RENDELL, Circuit Judge, concurring:

I  write  separately  only  to  note  my  strong  disagree- ment with the notion, espoused by the District Court and discussed at length in Part II.B of the majority opinion, that the **66    judicial analysis of permissible restric- tions 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 per- missible 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 espe- cially inappropriate barometer here because this case is not a harassment case. Rather, it is framed by appellants

**67    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.

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