http://www.afa.net/clp/bjbpr021501.asp
Center for Law and Policy
Press Release
U.S. Court of Appeals Strikes Down Public School’s Hate Speech Code
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Contact: Bryan J. Brown
American Family Association
P.O. Drawer 2440
Tupelo, MS 38803
1-662-680-3886
For Immediate Release: 02/15/01
[Tupelo] - The Third Circuit Court of Appeals late yesterday handed down a decision
that could, in the words of a front page article in today’s Philadelphia Inquirer
"affect public schools" throughout Pennsylvania, New Jersey, Delaware and the
Virgin Islands. According to Stephen M. Crampton, Chief Counsel of the American Family
Association’s Center for Law & Policy ("Center"), this
"important decision will, in fact, result in the striking down of hate speech codes
the nation over, even well beyond the context of the public schools."
The case began in the fall of 1999, when David Saxe, Ph.D., and two students in the
State College Area School District ("SCASD") challenged the constitutionality of
a recently enacted "hate speech" code. The School District dubbed the speech
code an "anti-harassment policy." Federal Judge James J. McClure, Jr. declared
the policy "constitutional." Saxe then appealed to the Third Circuit Court of
Appeals. In May of 2000, Center Litigation Counsel Bryan J. Brown argued the case before
Third Circuit Judges Samuel A. Alito Jr. and Marjorie O. Rendell. Fifth Circuit Judge John
M. Duhe, Jr. sat on the panel by designation. Brown stated that yesterday’s outright
reversal of McClure’s decision struck a "tremendous blow against the political
correctness movement."
The Third Circuit’s strongly worded opinion reinforces the great protections
afforded student speech, especially speech addressing values and religion. The policy,
according to Judge Alito’s majority opinion, "on first reading, appears both
unconstitutionally overbroad and vague." The majority firmly rejected Judge
McClure’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.’" The lower court’s erroneous "categorical rule,"
continued the Third Circuit, "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."
After declaring much of the SCASD speech code could be described in various fashion,
including "merely silly," the Third Circuit then gravely noted that the clauses
seeking to prohibit "disparaging speech directed at a person’s
‘values’" strike at the very "heart of moral and political discourse
– the lifeblood of constitutional self government (and democratic education) and the
core concern of the First Amendment."
Judge Rendell’s concurring opinion further buttresses the majority’s
reasoning. Rendell wrote separately only to note her "strong disagreement" with
the lower court’s reliance upon Title VII and other legislative enactments in an
attempt to end run the First Amendment’s protection of unwanted speech. "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."
Brian Fahling, Senior Policy Advisor for the Center, applauded the landmark ruling as
"a hopeful beginning of the imminent end of such misbegotten and all-too-common
policies." Dr. David Saxe, an associate professor of Pennsylvania State
University’s Department of Education, noted that "if any American institution
should teach about our Constitutional rights and our sacred First Amendment it is the
public school." Dr. Saxe is pleased that the Third Circuit declared unconstitutional
the "school board’s twisting and bending of the Constitution to fit their own
personal political agendas."
Don Wildmon, President and Founder of the American Family Association, voiced his
pleasure with the work of the Center and AFA of Pennsylvania’s director Roy Jones,
who brought Dr. Saxe and the Center together. "This important precedent serves to
ring the Liberty Bell for public school students held hostage to polices such as
SCASD’s."
The AFA Center for Law & Policy is the legal arm of the American Family
Association, Inc., located in Tupelo, Mississippi and Washington, D.C . The Center
restricts its practice to constitutional litigation.
Any unattributed text herein can be attributed to Bryan J. Brown, Litigation Counsel
---------------End of Original Message-----------------
Constitution Society, 1731 Howe Av #370, Sacramento, CA 95825
916/568-1022, 916/450-7941VM Date: 02/15/01 Time: 20:00:19
http://www.constitution.org/
jon.roland@constitution.org
