                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2001

Saxe v. State College Area High School
Precedential or Non-Precedential:

Docket 99-4081




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Filed February 14, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-4081

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 W ARREN SAXE,
       Appellants

v.

STATE COLLEGE AREA SCHOOL DISTRICT;
CONSTANCE MARTIN, in her official capacity as
President of the State College Area School District

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. McClur e, Jr.

Argued: May 23, 2000

Before: ALITO, RENDELL, and DUHE,* Cir cuit Judges.

(Opinion Filed: February 14, 2001)



_________________________________________________________________
* The Honorable John M. Duhe, Jr., Senior Judge of the United States
Court of Appeals for the Fifth Circuit, sitting by designation.
       BRYAN J. BROWN (Argued)
       STEPHEN M. CRAMPTON
       BRIAN FAHLING
       MICHAEL J. DEPRIMO
       AFA Center for Law and Policy
       P.O. Box 2440
       100 Parkgate Drive, Suite 2-B
       Tupelo, MS 38803

       SCOTT WILLIAMS
       P.O. Box 3
       57 East 4th Street
       Williamsport, PA 17701

        Counsel for Appellants

       JOHN R. MILLER, JR.
       DAVID B. CONSIGLIO (Argued)
       Miller, Kistler, Campbell, Miller ,
        Williams & Benson, Inc.
       720 South Atherton Street
       State College, PA 16801

        Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

The plaintiffs in this case challenge the constitutionality
of a public school district's "anti-harassment" policy,
arguing that it violates the First Amendment's guarantee of
freedom of speech.1 The District Court, concluding that the
policy prohibited no more speech than was already
unlawful under federal and state anti-discrimination laws,
held that the policy is constitutional and enter ed judgment
for the school district. We reverse.
_________________________________________________________________

1. Plaintiffs also assert that the Policy violates the free speech
guarantee
of the Pennsylvania Constitution. However, plaintiffs fail to present any
authority to show that Pennsylvania's guarantees ar e any broader than
the First Amendment's. Accordingly, we confine our discussion to the
plaintiffs' federal constitutional claims.

                                 2
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
environment"--and noting that "[d]isr espect among
members of the school community is unacceptable behavior
which threatens to disrupt the school envir onment and well
being of the individual." The second paragraph contains
what appears to be the Policy's operative definition of
harassment:

       Harassment means verbal or physical conduct based
       on one's actual or perceived race, religion, color,
       national origin, gender, sexual orientation, disability, or
       other personal characteristics, and which has the
       purpose or effect of substantially inter fering with a
       student's educational performance or cr eating an
       intimidating, hostile or offensive envir onment.

The Policy continues by providing several examples of
"harassment":

       Harassment can include any unwelcome verbal, written
       or physical conduct which offends, denigrates or
       belittles an individual because of any of the
       characteristics described above. Such conduct
       includes, but is not limited to, unsolicited der ogatory
       remarks, jokes, demeaning comments or behaviors,
       slurs, mimicking, name calling, graffiti, innuendo,
       gestures, physical contact, stalking, thr eatening,
       bullying, extorting or the display or circulation of
       written material or pictures.

These examples are followed by a lengthy section
captioned "Definitions," which defines various types of
prohibited harassment, including "Sexual harassment,"
"Racial and color harassment," "Harassment on the basis of

                                3
religion," "Harassment based on national origin," "Disability
harassment," and "Other harassment" on the basis of
characteristics such as "clothing, physical appearance,
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 characteristic.
Examples of specific types of harassment ar e also provided.
For example, "Racial and color harassment" is said to
include "nicknames emphasizing stereotypes, racial slurs,
comments on manner of speaking, and negative r eferences
to racial customs." Religous harassment r eaches
"derogatory comments regarding sur names, religious
tradition, or religious clothing, or religious slurs or graffiti."
National origins harassment includes "negative comments
regarding surnames, manner of speaking, customs,
language, or ethnic slurs." Harassment on the basis of
sexual orientation extends to "negative name calling and
degrading behavior." Disability harassment encompasses
"imitating manner of speech or movement."

The Policy provides that "[a]ny harassment of a student
by a member of the school community is a violation of this
policy."2 It establishes pr ocedures for the reporting,
informal mediation, and formal r esolution of complaints. In
addition, the Policy sets a list of punishments for
harassment, "including but not limited to war ning,
exclusion, suspension, expulsion, transfer, termination,
discharge . . ., training, education, or counseling."

B.

Plaintiff David Saxe is a member of the Pennsylvania
State Board of Education and serves as an unpaid
volunteer for SCASD. He is the legal guardian of both
student-plaintiffs, who are enrolled in SCASD schools. After
_________________________________________________________________

2. The school community, by the Policy's ter ms, "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."

                               4
the Anti-Harassment Policy was adopted, Saxe filed suit in
District Court, alleging that the Policy was facially
unconstitutional under the First Amendment's fr ee speech
clause.3 In his Complaint, he alleged that

       [a]ll Plaintiffs openly and sincer ely 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
speaking out about their religious beliefs, engaging in
symbolic activities reflecting those beliefs, and distributing
religious literature. (App. 27-28.) They sought to have the
Policy declared unconstitutionally vague and overbroad and
its operation permanently enjoined.

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 harassment
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 ef fect of
`substantially interfering with a student's educational
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 T itle 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 ar gument, the Court
_________________________________________________________________

3. 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.

                                5
asserted that "a more precise definition of harassment, like
Justice Stewart's famous description of `por nography,' 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
defined 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 prohibits
harassment that is already unlawful under state and
federal law. The Court observed:

       Harassment has never been considered to be pr otected
       activity under the First Amendment. In fact, the
       harassment prohibited under the Policy alr eady is
       unlawful. The Policy is a tool which gives SCASD the
       ability 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 r easoning. 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 Court based its holding on a
determination that the Policy simply r eplicated existing 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. Title VI of the Civil
Rights Act of 1964 provides that "[n]o person 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 pr ogram or
activity receiving Federal financial assistance." 42 U.S.C.

                                6
S 2000d. Title IX of the Education Amendments of 1972
further provides that "[n]o 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 activity receiving federal financial
assistance." 20 U.S.C. S 1681(a). Although less often
involved in harassment cases, the Rehabilitation Act of
1973, 29 U.S.C. S 794, makes it unlawful for programs
receiving federal assistance to discriminate on the basis of
disability or age.4

The federal courts have held that these statutes cr eate a
private right of action similar to that available under Title
VII, which prohibits discrimination in the workplace. 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. Monr oe County Board of
Education, 526 U.S. 629 (1999); Franklin v. Gwinnett
County Pub. Schs., 503 U.S. 60, 74-75 (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 (1986), the Supr eme Court held that
Title VII prohibits abusive and discriminatory conduct that
creates a "hostile environment"--that is, harassment so
_________________________________________________________________

4. 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. SS 951 et seq., prohibits
discrimination in employment, housing and public accommodations on
the basis of "race, color, religious creed, ancestry, age, sex, national
origin or non-job related handicap or disability." 43 P.S.A. S 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 harassment statute makes it a criminal of fense when a person,
with intent to harass, annoy or alarm another 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 person and that serves no legitimate
purpose. 18 P.S.A. S 2709. Clearly, this law covers a much narrower
range of conduct than is implicated by the SCASD Policy.

                               7
severe or pervasive as "to alter the conditions of the victim's
employment and create an abusive working envir onment."
Id. at 67. In Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), the Court clarified that in order for conduct to
constitute harassment under a "hostile envir onment"
theory, it must both: (1) be viewed subjectively as
harassment by the victim and (2) be objectively 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 severity; whether it is
physically threatening or humiliating, or a mer e offensive
utterance; and whether it unreasonably inter feres with an
employee's work performance." Id . at 23. See also Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
("Conduct that is not severe or pervasive enough to create
an objectively hostile or abusive work envir onment--an
environment that a reasonable person wouldfind 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 "mer e utterance 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 (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. 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 that so undermines and detracts from

                               8
       the victims' educational experience, that the victim-
       students are effectively denied equal access to an
       institution's resources and opportunities.

Id. at 651. This determination " `depends on a constellation
of surrounding circumstances, expectations, and
relationships,' including, but not limited to, the ages of the
harasser and the victim, and the number of individuals
involved." Id. (quoting Oncale, 523 U.S. at 82). The Court
stressed that "[d]amages are not available for simple acts of
teasing and name-calling among school childr en, even
where these comments target differ ences in gender." Id. at
652. 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 pr ograms and
activities." Id. at 633, 653.5

B.

With this framework in mind, we now tur n 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
pronouncement exaggerates the current state of the case
law in this area.

There is of course no question that non-expr essive,
physically harassing conduct is entir ely outside the ambit of
the free speech clause. 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 (1969); Cantwell v. Connecticut, 310
U.S. 296 (1940). When laws against harassment attempt to
_________________________________________________________________

5. 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 enumerated 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).

                               9
regulate oral or written 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 territory of the First Amendment." DeAngelis v. El Paso
Mun. Police Officers' Ass'n, 51 F.3d 591, 596 (5th Cir.
1995).

This is especially true because, as the Fifth Cir cuit has
noted, when anti-discrimination laws are "applied to . . .
harassment claims founded solely on verbal insults,
pictorial or literary matter, the statute[s] impose[ ] content-
based, viewpoint-discriminatory restrictions on speech."
DeAngelis, 51 F.3d at 596-97. Indeed, a disparaging
comment directed at an individual's sex, race, or some
other personal characteristic has the potential to create an
"hostile environment"--and thus come within the ambit of
anti-discrimination laws--precisely because of its sensitive
subject matter and because of the odious viewpoint it
expresses.6

This sort of content- or viewpoint-based restriction is
ordinarily subject to the most exacting First Amendment
scrutiny. This point was dramatically illustrated in R.A.V. v.
City of St. Paul, 505 U.S. 377 (1992), in which the Supreme
_________________________________________________________________

6. Most commentators including those who favor and oppose First
Amendment protection for harassing speech, agr ee 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 Pr ohibitions 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).

                               10
Court struck down a municipal hate-speech or dinance
prohibiting "fighting words" that ar oused "anger, alarm or
resentment on the basis of race, color, creed, religion or
gender." Id. at 377. While r ecognizing that fighting words
generally are unprotected by the First Amendment, the
Court nevertheless found that the ordinance
unconstitutionally discriminated on the basis of content
and viewpoint:

       Displays containing some words--odious racial
       epithets, for example--would be prohibited to
       proponents of all views. But "fighting wor ds" that do
       not themselves invoke race, color, cr eed, religion, or
       gender--aspersions upon a person's mother, for
       example--would seemingly be usable ad libitum in the
       placards of those arguing in favor of racial, color, etc.
       tolerance and equality, but could not be used by that
       speaker's opponents.

Id. at 391. Striking down the law, the Court concluded that
"[t]he 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 ordinance:
they may regulate deeply offensive and potentially
disruptive categories of speech based, at least in part, on
subject matter and viewpoint. Although the Supr eme Court
has written extensively on the scope of workplace
harassment, it has never squarely addressed whether
harassment, when it takes the form of pur e 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 "pr ovid[ed] little
guidance whether conduct targeted for its expr essive
content . . . may be regulated under Title VII"); Aguilar v.
Avis Rent A Car Sys., Inc., 980 P.2d 846, 863 (Cal. 1999)
(Werdegar, J., concurring) ("No decision by the United
States Supreme Court has, as yet, declar ed that the First
Amendment permits restrictions on speech creating a
hostile work environment.").7
_________________________________________________________________

7. Hishon v. King & Spalding, 467 U.S. 69 (1984), which SCASD cites for
the proposition that Title VII's pr ohibitions do not offend the First

                               11
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:

       [S]ince 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 r each of
       a statute directed at conduct rather than speech [citing
       Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571 (1991);
       FTC v. Superior Court Trial Lawyers Assn., 493 U.S.
       411, 425-432 (1990); and United States v. O'Brien, 391
       U.S. 367, 376-377 (1968)]. Thus, for example, sexually
       derogatory "fighting words," among other words, may
       produce a violation of Title VII's general prohibition
       against sexual discrimination in employment practices.
       Where the government does not tar get conduct on the
       basis of its expressive content, acts ar e not shielded
       from regulation merely because they express a
       discriminatory idea or philosophy.

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

This passage suggests that government may
constitutionally prohibit speech whose non-expressive
qualities promote discrimination. For example, a
supervisor's statement "sleep with me or you'r e fired" may
be proscribed not on the ground of any expressive idea that
the statement communicates, but rather because it
facilitates the threat of discriminatory conduct. Despite the
purely verbal quality of such a threat, it surely is no more
"speech" for First Amendment purposes than the robber's
demand "your money or your life." Accor d NLRB v. Gissel
Packing Co., 395 U.S. 575, 617, 618 (1969) (holding that
employer's "threat of retaliation" on basis of union
_________________________________________________________________

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 addr essed the constitutionality
of the statute's application to quid pro quo harassment.

                               12
membership was "without the protection of the First
Amendment") (citation and internal quotation marks
omitted).8 Similarly, we see no constitutional problem with
_________________________________________________________________

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

       [W]e do not think that when Indiana applies its statute to the nude
       dancing in these nightclubs it is proscribing nudity because of the
       erotic message conveyed by the dancers. . . . The perceived evil
that
       Indiana seeks to address 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 little 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
expressive
       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 boycott's economic effects:

       A nonviolent and totally voluntary boycott may have a disruptive
       effect on local economic conditions. This Court has recognized the
       strong governmental interest in certain forms of economic
       regulation, even though such regulation may have an incidental
       effect on rights of speech and association.

Supreme Court Trial Lawyers, 493 U.S. at 428 n.12 (quoting NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 912 (1982)). Finally, in O'Brien,
the Court found no First Amendment impediment to pr osecuting anti-
war protestors who had violated federal law by burning their draft cards:

       [E]ven 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 destruction of a
       registration certificate is constitutionally protected activity. .
. . The
       many functions performed by Selective Service certificates
establish
       beyond doubt that Congress has a legitimate and substantial
       interest in preventing their wanton and unrestrained destruction
       and assuring their continuing availability by punishing people who
       knowingly and wilfully destroy or mutilate them.

O'Brien, 391 U.S. at 376, 380. Accor d Wisconsin v. Mitchell, 508 U.S.
467, 487-88 (1993) (noting that conduct not tar geted on the basis of its
expressive content may be regulated under Title VII).

                               13
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 (1992) ("The Constitution does not er ect 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.").

The previously quoted passage 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 content. See DeAngelis, 51 F.3d at 596 n.7;
John E. Nowak & Ronald D. Rotunda, Constitutional Law
S 16.39, at 1116 (5th ed. 1995). "Harassing" or
discriminatory speech, although evil and offensive, may be
used to communicate ideas or emotions that nevertheless
implicate First Amendment protections. As the Supreme
Court has emphatically declared, "[i]f there is a bedrock
principle underlying the First Amendment, it is that the
government may not prohibit the expr ession of an idea
simply because society finds the idea offensive or
disagreeable." Texas v. Johnson , 491 U.S. 397, 414 (1989).

For this reason, we cannot accept SCASD's contention
that the application of anti-harassment law to expr essive
speech can be justified as a regulation of the speech's
"secondary effects." R.A.V. did acknowledge that content-
discriminatory speech restrictions may be per missible when
the content classification merely "happens to be associated
with particular `secondary effects' of the speech, so that the
regulation is `justified without r eference 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 (1986)). The
Supreme Court has made it clear, however , that 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:"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 (1988); see also United States v. Playboy
Entertainment Group, 120 S. Ct. 1878, 1885 (2000) ("The

                               14
overriding justification for the regulation is concern for the
effect of the subject matter on [listeners] . . . . This is the
essence of content-based regulation."); Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134 (1992) ("Listeners'
reaction to speech is not a content-neutral basis for
regulation."). Nor do we believe that the r estriction 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 (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 (1986) ("[f]or a time, place, or manner r egulation 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 (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
expressive content--"has never been considered to be
protected activity under the First Amendment." Such a
categorical rule is without precedent in the decisions of the
Supreme Court or this Court, and it belies the very real
tension 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 discrimination
in the workplace--and in the schools--is not only a
legitimate, but a compelling, government inter est. See, e.g.,
Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U.S. 537, 549 (1987). And, as some courts and
commentators have suggested, speech may be mor e 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).
We simply note that we have found no categorical rule that
divests "harassing" speech, as defined by federal anti-
discrimination statutes, of First Amendment pr otection.

                               15
C.

In any event, we need not map the precise boundary
between permissible anti-discrimination legislation and
impermissible restrictions on First Amendment rights
today. Assuming for present purposes that the federal 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 pr otected 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 disability. The
Policy, in contrast, is much broader, r eaching, 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
others' "appearance," "clothing," and"social skills," it may
be brave, futile, or merely silly. But attempting to proscribe
negative comments about "values," as that ter m is
commonly used today, is something else altogether . By
prohibiting disparaging speech directed at a person's
"values," the Policy strikes at the heart of moral and
political discourse--the lifeblood of constitutional self
government (and democratic education) and the core
concern of the First Amendment. That speech about
"values" may offend is not cause for its prohibition, but
rather the reason for its protection:"a principal `function 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 dissatisfaction with
conditions as they are, or even stirs people to anger.' "
Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (quoting
Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). No court or
legislature has ever suggested that unwelcome speech
directed at another's "values" may be pr ohibited under the
rubric of anti-discrimination.

We do not suggest, of course, that a public school may
never adopt regulations more protective than existing law;

                                16
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 pr ohibit conduct that
is already unlawful.

Moreover, the Policy's prohibition extends beyond
harassment that objectively denies a student equal access
to 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
characteristic and that "has the purpose or effect of
substantially interfering with a student's educational
performance or creating an intimidating, hostile or offensive
environment." (emphasis added). Unlike federal anti-
harassment law, which imposes liability only when
harassment 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 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 alr eady
prohibited under federal and state anti-harassment laws;
(2) such prohibited speech is not entitled to First
Amendment protection; (3) therefor e, 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 exception"
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.

                                17
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.9 The Court set out the
framework for student free speech claims in Tinker v. Des
Moines Independent Community School District, 393 U.S.
503 (1969). In Tinker, a group of students was suspended
for wearing black armbands 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' " and thus was
constitutionally protected. Id. at 505. Taking as its premise
that "[i]t can hardly be argued that either students or
teachers shed their constitutional rights to fr eedom of
speech or expression at the schoolhouse gate," id. at 506,
the Court reasoned that

       [t]he school officials banned and sought to punish
       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. Significantly, the Court emphasized that
"undifferentiated fear or appr ehension of disturbance is not
enough to overcome the right to freedom of expression." Id.
at 508.

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
_________________________________________________________________

9. We recognize that the SCASD Policy restricts the speech, not only of
students, but also of teachers, volunteers and other adult members of
the "school community." Because we conclude, however, that the Policy
fails under the less stringent standards for the restriction of student
speech, we need not address this matter further .

                               18
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 example,
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 activities,
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. T ex. 1997), a high
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 r osary as
their identifying symbol. The court held that the ban failed
to satisfy Tinker's substantial disruption test:

       [A]lthough Plaintiffs wore their r osaries outside their
       shirts for several months, they were never misidentified
       as gang members nor approached by gang members.
       There also was no evidence that they attracted the
       attention of other students because of their r osaries.
       . . . Accordingly, the Court finds that ther e was
       insufficient evidence of actual disruption at New Caney
       High School, or that there was substantial r eason 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 r eligious tracts on
school grounds. Again citing Tinker , the court held that
"Defendants have failed to establish that Plaintiffs'
distribution 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
"[i]f school officials were per mitted 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 .

                               19
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 r esult, nevertheless
confirms Tinker's requir ements of specificity and
concreteness. 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 thr eat of
substantial disruption:

       [B]ased 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
       and let alone. . . . The district experienced a series of
       racial incidents [including "hostile confr ontations" and
       at least one fight] in 1995, some of which wer e related
       to the Confederate flag. . . . The Racial Harassment
       policy enacted in response to this situation was clearly
       something more than a mere desire to avoid the
       discomfort and unpleasantness that always accompany
       an unpopular viewpoint. The history of racial tension
       in the district made administrators' and par ents'
       concerns about future substantial disruptions from
       possession of Confederate flag symbols at school
       reasonable.

Id. at 1366 (citation omitted). As W est makes clear, the
mere desire to avoid "discomfort" or"unpleasantness" 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 restriction 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

                                20
(1986), the Court upheld the school's suspension of a high
school student 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

       [t]he 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 offensive speech and conduct such
       as that indulged in by this confused boy.

Id. at 683. Distinguishing Cohen v. California, 403 U.S. 15
(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

       [i]t 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. . . . "[T]he First Amendment gives a
       high school student the classroom right to wear
       Tinker's armband, but not Cohen's jacket."

Fraser, 478 U.S. at 683 (citations omitted). 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 obscenity offends"--a
dichotomy neatly illustrated by the comparison between
Cohen's jacket and Tinker's armband. Fraser, 478 U.S. at
685 (quoting FCC v. Pacifica Foundation, 438 U.S. 726, 746
(1978)); see also Hazelwood School District v. Kuhlmeier,
484 U.S. 260, 286 n.2 (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 for m and manner of
student speech, not its substance. It addresses the mode of
expression, not its content or viewpoint.").

                                21
Finally, in Hazelwood School District v. Kuhlmeier, 484
U.S. 258 (1988), 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 therefore could "exercis[e] 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 concer ns." Id. at 273
(emphasis added). As the Court reasoned,

       [t]he question whether the First Amendment r equires a
       school to tolerate particular student speech--the
       question that we addressed in Tinker --is different from
       the question whether the First Amendment requir es a
       school affirmatively to promote particular student
       speech. The former question addresses educators'
       ability to silence a student's personal expr ession that
       happens to occur on the school premises. The latter
       question concerns educators' authority over school-
       sponsored publications, theatrical productions, and
       other expressive activities that students, par ents, and
       members of the public might reasonably per ceive to
       bear the imprimatur of the school. . . . Educators are
       entitled to exercise greater contr ol over this second
       form of student expression . . . .

Id. at 270-71. In Rosenberger v. Rector & Visitors of
University of Virginia, 515 U.S. 819 (1995), the Court made
clear that Hazelwood's permissive"legitimate pedagogical
concern" test governs only when a student's school-
sponsored speech could reasonably be viewed as speech of
the school itself:

       [W]hen the State is the speaker, it may make content-
       based choices. When the University determines the
       content of the education it provides, it is the University
       speaking, and we have permitted the gover nment to
       regulate the content of what is or is not expr essed
       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

                               22
       subsidize transmittal of a message it favors but instead
       encourage[s] 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 does not restrict the University's
       own speech, which is controlled by differ ent 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 striking
down a blanket prohibition against distributing religious
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 thr ow up its hands,
       declaring that because misconceptions are possible it
       may silence its pupils, that the best defense against
       misunderstanding is censorship. . . . Public belief that
       the government is partial does not per mit the
       government to become partial. Students ther efore may
       hand out literature even if the recipients would
       misunderstand its provenance. The school's pr oper
       response is to educate the audience rather than
       squelch the speaker.

Hedges, 9 F.3d at 1299; see also Burch v. Barker, 861 F.2d
1149, 1159 (9th Cir. 1998) ("under ground newspaper"
distributed on school grounds could not r easonably be
viewed as school-sponsored).

To summarize: Under Fraser, a school may categorically
prohibit lewd, vulgar or profane language. Under
Hazelwood, a school may regulate school-sponsored speech
(that is, speech that a reasonable observer would view as
the school's own speech) on the basis 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 disrupt school

                                23
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 overbr eadth 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.

A regulation is unconstitutional on its face on
overbreadth grounds where ther e is a "a likelihood that the
statute's very existence will inhibit free expr ession" by
"inhibiting the speech of third parties who are not before
the Court." Members of City Council v. T axpayers for
Vincent, 466 U.S. 789, 799 (1984). T o render a law
unconstitutional, the overbreadth must be "not only real
but substantial in relation to the statute's plainly legitimate
sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

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

       Harassment means verbal or physical conduct based
       on one's actual or perceived race, religion, color,
       national origin, gender, sexual orientation, disability, or
       other personal characteristics, and which has the
       purpose or effect of substantially inter fering with a
       student's educational performance or cr eating an
       intimidating, hostile or offensive envir onment.

This, however, is immediately followed two paragraphs
later by a statement that harassment under the Policy "can
include any unwelcome verbal, written or physical conduct
which offends, denigrates or belittles an individual because
of any of the characteristics described above." In addition,

                                24
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
"unwelcome verbal, written or physical conduct directed at
the characteristics of a person's religion, such as
derogatory comments regarding sur names, religious
tradition, or religious clothing, or religious slurs, or graffiti."

Certainly, some of these purported definitions of
harassment are facially overbroad. No one would suggest
that a school could constitutionally ban "any unwelcome
verbal . . . conduct which offends . . . an individual because
of " some enumerated personal characteristics. Nor could
the school constitutionally restrict, without more, any
"unwelcome verbal . . . conduct directed at the
characteristics of a person's religion." The Supreme Court
has held time and again, both within and outside of the
school context, that the mere fact that someone might take
offense at the content of speech is not sufficient
justification for prohibiting it. See T inker, 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"); T exas v. Johnson,
491 U.S. 397, 414 (1989) ("If there is a bedrock principle
underlying the First Amendment, it is that the gover nment
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 (1969) ("It is firmly
settled that . . . the public expression of ideas may not be
prohibited merely because the ideas ar e 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 proscribe speech simply because it was found to
be offensive, even gravely so, by large numbers of people.").

Before declaring the Policy unconstitutional, however, we
must first determine whether it is susceptible to a
reasonable limiting construction: "the elementary rule is
that every reasonable construction must be r esorted to, in
order to save a statute from unconstitutionality."10 Stretton
_________________________________________________________________

10. Saxe's citation to Hynes v. Mayor & Council of Borough of Oradell,
425 U.S. 610 (1976), ostensibly for the proposition that federal courts

                               25
v. Disciplinary Bd. of the Supreme Court of Pennsylvania,
944 F.2d 137, 144 (3d Cir. 1991) (citations omitted); see
also Hoffman Estates v. Flipside, Hof fman Estates, 455 U.S.
489, 494 n.4 (1982) ("In evaluating a facial challenge to a
state law, a federal court must, of 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").

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 r equires that
speech either "substantially interfer[e] with a student's
educational performance or creat[e] 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 pr ohibited harassment, but
the other sections of the Policy could still be r elevant in
clarifying vague or ambiguous terms in that operative
definition.

So narrowed, the Policy would requir e 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 envir onment.
_________________________________________________________________

may not give a narrowing construction to a local statute, is inapposite.
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 authoritatively construed by the state courts, and we are
therefore required to give it a reasonable narrowing construction if
necessary to save it from unconstitutionality.

                               26
It is apparent from these elements that SCASD cannot
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 interfere with
educational performance or that cr eates 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 "[a]ny harassment of a student by a member of the
school community." Thus, its strictures pr esumably apply
whether the harassment occurs in a school sponsor ed
assembly, in the classroom, in the hall between classes, or
in a playground or athletic facility.11 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 r ely on
Hazelwood's more lenient "legitimate pedagogical concern"
test in defending the Policy from facial attack.

In short, the Policy, even narrowly read, prohibits a
substantial amount of non-vulgar, non-sponsor ed student
speech. SCASD must therefore satisfy the Tinker test by
showing that the Policy's restrictions ar e necessary to
prevent substantial disruption or inter ference with the work
of the school or the rights of other students. Applying this
test, we conclude that the Policy is substantially overbroad.

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
educational performance or creating a hostile environment.
_________________________________________________________________

11. Indeed, Saxe even suggests that the Policy could even be read to
cover conduct occurring outside of school pr emises. 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 expression on school gr ounds"); 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").

                               27
This ignores Tinker's requir ement that a school must
reasonably believe that speech will cause actual, material
disruption before prohibiting it.

In addition, even if the "purpose" component is ignored,
we do not believe that prohibited "harassment," as defined
by the Policy, necessarily rises to the level of a substantial
disruption under Tinker. We agr ee that the Policy's first
prong, which prohibits speech that would"substantially
interfer[e] with a student's educational performance," may
satisfy the Tinker standard. The primary function of a
public school is to educate its students; conduct that
substantially interferes with the mission is, almost by
definition, disruptive to the school envir onment.

The Policy's second criterion, however--which pr ohibits
speech that "creat[es] an intimidating, hostile or offensive
environment"--poses a more difficult problem. There are
several possible grounds on which SCASD could attempt to
justify this prohibition. First, SCASD could ar gue that it
has an interest in avoiding liability for harassment under
Franklin and Davis. However, because the Policy prohibits
substantially more conduct than would give rise to liability
under these cases, this justification is unavailing.

Second, SCASD could argue that speech cr eating a
"hostile environment" may be banned because it "intrudes
upon . . . the rights of other students." T inker, 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 tortious speech
like libel, slander or intentional infliction of emotional
distress. See Slotterback v. Interbor o Sch. Dist., 766 F.
Supp. 280, 289 n.8 (E.D. Pa. 1991); see also Kuhlmeier v.
Hazelwood Sch. Dist., 795 F.2d 1368, 1375 (8th Cir.), rev'd
on other grounds, 484 U.S. 260 (1986). In any case, it is
certainly not enough that the speech is merely offensive to
some listener. See, e.g., Rivera , 721 F. Supp. at 1191.
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 characteristics the
content of which offends someone.12 This could include
_________________________________________________________________

12. Such a reading would be consistent with the Policy's very broad
statement of purpose, which notes that "[m]embers of the school

                                28
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," "r eligious 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.

Finally, SCASD might argue that the "hostile
environment" prohibition is requir ed to maintain an orderly
and non-disruptive educational environment. However, as
Tinker made clear, the "undif ferentiated fear or
apprehension of disturbance" is not enough to justify a
restriction on student speech. Although SCASD correctly
asserts that it has a compelling interest in pr omoting an
educational environment that is safe and conducive to
learning, it fails to provide any particularized reason as to
why it anticipates substantial disruption fr om the broad
swath of student speech prohibited under the Policy.

The Policy, then, appears to cover substantially mor e
speech than could be prohibited under T inker's substantial
disruption test. Accordingly, we hold that the Policy is
unconstitutionally overbroad.

V.

For the foregoing reasons, the judgment of the District
Court is reversed.
_________________________________________________________________

community are expected to treat each other with mutual respect" and
that "[d]isrespect among members of the school community is
unacceptable behavior."

                               29
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, secur e, and nurturing
school environment. Members of the school community are
expected to treat each other with mutual r espect.
Disrespect among members of the school community 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
personal characteristics, and which has the purpose or
effect of substantially interfering with a student's
educational performance or creating an intimidating,
hostile or offensive environment.

According to state law (18 Pa. C.S.A. ~2709), an individual
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, written or
physical conduct which offends, denigrates, or belittles an
individual because of any of the characteristics described
above. Such conduct includes, but is not limited to
unsolicited derogatory remarks, jokes, demeaning
comments or behavior, slurs, mimicking, name calling,
graffiti, innuendo, gestures, physical contact, 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 harassment

                                30
based on race, color, religion, national origin, gender,
sexual orientation, disability, and other for ms of
harassment. Harassment is not only a form of
discrimination, 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 for mal or
informal, verbal or written, and will take appropriate action
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 or participates in an
investigation, proceeding or hearing relating to such
harassment. It is possible that an alleged harasser may be
found to have violated this anti-retaliation pr ovision 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, r eprisal or harassment
and may be redressed through application of the same
reporting, 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 ter m "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 community includes, but is not limited to, all
students, school employees, contractors, unpaid volunteers,
school board members, and other visitors.

                               31
School employee includes, but is not limited to, all
teachers, support staff, administrators, bus drivers,
custodians, cafeteria workers, coaches, volunteers, and
agents of the school.

Sexual harassment means unwelcome sexual advances,
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 condition of a student's
       education;

       (b) submission to or rejection of such conduct by a
       student is used as a component 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 intimidating, hostile or
       offensive educational environment.

This applies whether the harassment is between people of
the same or different gender. Sexual harassment can
include unwelcome verbal, written or physical conduct,
directed at or related to a person's gender, such as sexual
gossip or personal comments of a sexual natur e, sexually
suggestive or foul language, sexual jokes, whistling,
spreading rumors or lies of a sexual natur e about someone,
demanding sexual favors, forcing sexual activity by threat
of punishment or offer of educational r eward, obscene
graffiti, display or sending of pornographic pictures or
objects, offensive touching, 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
characteristics of a person's race or color, such as
nicknames emphasizing stereotypes, racial slurs, comments
on manner of speaking, and negative refer ence to racial
customs.

Harassment on the basis of religion is unwelcome verbal,
written or physical conduct directed at the characteristics
of a person's religion, such as derogatory comments

                               32
regarding surnames, religious tradition, or religious
clothing, or religious slurs, or graffiti.

Harassment on the basis of national origin is unwelcome
verbal, written or physical conduct directed at the
characteristics of a person's national origin, such as
negative comments regarding surnames, manner of
speaking, customs, language, or ethnic slurs.

Harassment on the basis of sexual orientation is
unwelcome verbal, written or physical conduct dir ected at
the characteristics of a person's perceived sexual
orientation, such as negative name calling and degrading
behavior.

Disability harassment includes harassment based on a
person's disabling mental or physical condition and
includes any unwelcome verbal, written or physical
conduct, directed at the characteristics of a person's
disabling condition, such as imitating manner of speech or
movement, or interference with necessary equipment.

Other harassment on the basis of such things as clothing,
physical appearance, social skills, peer group, income,
intellect, educational program, hobbies or values, etc. may
also cause or effect substantial inter fering with a student's
educational performance or creating an intimidating,
hostile or offensive environment. This type of harassment is
also protected against by this policy and pr ocedures.

PROCEDURES FOR IMPLEMENTATION OF ANTI-
HARASSMENT POLICY

Reporting

Any school employee who observes, overhears or otherwise
witnesses harassment, which may be unlawful, or to whom
such harassment is reported, must take pr ompt and
appropriate action to stop the harassment and to prevent
its recurrence.

In the event that the school employee is unable to
personally take prompt and appropriate action, the
employee must report the incident or complaint in writing,
ordinarily within one school day, to the appr opriate school
complaint official(s) designated by this policy.

                                33
Any student 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 ar e 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 complaint
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 thr ough a
voluntary 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 Procedure may be an opportunity 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 complaining 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 alleged
harasser may be accompanied by a person of his/her
choice for support and guidance. If the complaining student
and the alleged harasser feel that a resolution has been
achieved, then the conversation may remain confidential
and no further action is necessary. The results of an

                                34
informal resolution shall be reported by the facilitator, in
writing, to the superintendent and to the school principal.

If the complaining student, the alleged harasser , or the
school employee/harassment complaint official, chooses not
to utilize the informal procedure, or believes that the
informal procedure has been unsuccessful, he/she may
proceed to the formal procedur e. 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
harassment 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 immediately 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 complaint or report.

Step 2

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
incident(s) or circumstances giving rise to the complaint. In
determining whether alleged conduct constitutes a violation
of this policy, the harassment complaint official should
consider the surrounding circumstances, 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 violation of this policy r equires a

                                 35
determination based on all the facts and surr ounding
circumstances.

In addition, the State College Area School District may take
immediate steps, at its discretion, to pr otect the
complaining student, alleged harasser, witnesses, and
school employees pending completion of an investigation of
alleged harassment and may make any appropriate
referrals for assistance, including but not limited to
counseling, rape crisis intervention, notification of police,
etc.

The investigation will be completed as soon as practicable,
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 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
appear to be violations of this policy.

Step 3

Following the investigation, the harassment complaint
official shall recommend to the superintendent and/or
school principal what action, if any, is requir ed. The State
College Area School District shall take appr opriate action 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
requirements of any applicable collective bargaining
agreement, 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
the written report of the investigation and r esults in
his/her office. In the case of an investigation conducted by

                               36
the school district, the superintendent shall r eceive a copy
of the investigation report and results. 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 disciplinary
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 intentional
bodily harm. Sexual abuse is defined as any act or acts by
a person involving sexual molestation or exploitation of
another person, including but not limited to incest,
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 r ecognizes 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 r espected as
much as possible, consistent with legal obligations to
investigate, to take appropriate action, and to comply with
any discovery or disclosure obligations.

                               37
ALTERNATIVE COMPLAINT PROCEDURES

In addition to, or instead of, filing a harassment complaint
through this policy, a person may choose to exercise other
options, including but not limited to filing a complaint with
outside agencies 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 of Education, or the Office for
Civil Rights of the U.S. Department of 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 under
a number of federal or state statutes (including T itles 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 Board of School Dir ectors shall
provide notice of the policy and procedur es to students,

                               38
custodial parents or guardians and school employees.
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 publication of the school
district that sets forth the comprehensive rules, procedures
and standards of conduct for the school. Ther e shall be
procedures for publicizing, on an annual basis, the identity
of the harassment complaint officials who ar e designated to
receive complaints. The board shall use its discretion in
developing and initiating age-appropriate pr ograms to
effectively inform students and school employees about the
substance of the policy and procedures in order to help
prevent harassment.

                               39
RENDELL, Circuit Judge, concurring:

I write separately only to note my strong disagreement
with the notion, espoused by the District Court and
discussed at length in Part II.B of the majority opinion, that
the judicial analysis of permissible r estrictions 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 permissible 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 wer e 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 especially
inappropriate barometer here because this case is not a
harassment case. Rather, it is framed by appellants 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.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               40
