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 v. State College Area School District Constance Martin, in Her Official Capacity as President of the State College Area School District

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 protected activity under the First Amendment. In fact, the harassment prohibited under the Policy already 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 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.

Because the District Court based its holding on a determination that the Policy simply replicated 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 program or activity receiving Federal financial assistance." 42 U.S.C. § 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. § 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 create 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. Monroe 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 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 (1993), 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 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 circumstances." "These may include," the Court observed, "the frequency of the discriminatory conduct; its severity; 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 (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 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 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 children, even where these comments target differences 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 programs and activities." Id. at 633, 653.5

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 pronouncement exaggerates the current state of the case law in this area.

There is of course no question that non-expressive, physically harassing conduct is entirely 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 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 Circuit 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 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 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 words" that do not themselves invoke race, color, creed, 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 Supreme Court has written extensively on the scope of workplace harassment, it has never squarely addressed whether harassment, 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 "provid[ed] little guidance whether conduct targeted for its expressive 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, declared that the First Amendment permits restrictions on speech creating a hostile work environment.").7

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 reach 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 88 S.Ct. 167320 L.Ed.2d 672 (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 are 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're 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." Accord NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 618 (1969) (holding that employer's "threat of retaliation" on basis of union membership was "without the protection of the First Amendment") (citation and internal quotation marks omitted).8 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 (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.").

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 § 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 expression 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 expressive 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 permissible when the content classification merely "happens to be associated with particular `secondary effects' of the speech, so that the regulation is `justified without 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 (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 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 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 (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 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 (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 interest. See, e.g., Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987). 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). 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.

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 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 disability. 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 others' "appearance," "clothing," and "social skills," it may be brave, futile, or merely silly. But attempting to proscribe negative comments about "values," as that term 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 prohibited 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; 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 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.

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 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 exception" from First Amendment protection for speech that is within the ambit of federal anti-discrimination laws.

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

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 freedom 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 apprehension 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 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. Tex. 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 rosary as their identifying symbol. The court held that the ban failed to satisfy Tinker's substantial disruption test:

[A]lthough Plaintiffs wore their rosaries 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 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' distribution of the religious tracts gave rise to a material or substantial disruption of the operation" of the school. Id. at 120