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A federal appeals court has struck down a Pennsylvania district's anti-harassment policy. Michael McGough looks at how things might shake out in the real world of the schoolyard
Sunday, February 25, 2001
Correction/Clarification: (Published April 21, 2001) Michael McGough's Feb. 25 essay on student free-speech rights incorrectly described the late Justice William Brennan as the author of a 1969 Supreme Court opinion in the case of Tinker vs. Des Moines School District. Although Brennan joined in the opinion, it was written by Justice Abe Fortas.
The scene: Ben Franklin Elementary School in Anytown, Pennsylvania. In the fourth-grade cafeteria line, 10-year-old Johnny, the son of a storefront preacher, finds himself next to a classmate named Adam, an effeminate, much picked-upon kid whose parents run the local chapter of Amnesty International. Johnny is wearing a campaign-like button reading "GAYS ARE GODLESS!" Adam is prepared, though. Pinned on his sweater is his own button declaring "THE RELIGIOUS RIGHT IS WRONG!"
A teacher acting as that day's cafeteria monitor is terrified that an altercation is about to break out, and not because there's only one slice of pizza left. But she's powerless to tell either boy to lose the button. A federal appeals court has said so. She holds her breath and wishes the line were moving faster.
The scene above is an exaggeration - but an understandable one - of a scenario that is probably haunting a lot of public school teachers in Pennsylvania, New Jersey and Delaware after a recent decision of the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
In an opinion written by Judge Samuel A. Alito Jr. - a possible George W. Bush Supreme Court nominee - the court held that the State College Area School District's Anti-Harassment Policy was a violation of the free speech rights of the district's students.
The code is similar to those adopted by many school districts and not a few universities (including the University of Pittsburgh).
Citing the need to provide a "safe, secure and nurturing school environment," the State College policy prohibits students in all grades from harassing other students. Harassment is defined as conduct "based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment."
The other "personal characteristics" range from the sublime ("values") to the sophomoric ("hobbies"). Harassment includes "verbal" as well as "physical" contact, a legal formulation that avoids the constitutionally touchy S-word - speech. But the policy is clearly aimed at speech, and not just speech making fun of another kid's hobby. To quote the policy: "Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behavior, slurs, mimicking [and] name calling."
Two boys in the State College district, wards of a member of the Pennsylvania State Board of Education, challenged the policy in federal court because they feared it would get them into trouble if they gave voice to their religious belief that "homosexuality is a sin." In their complaint, the children - one a middle-school student, the other in elementary school - insisted that they had a right "to speak out about the sinful nature and harmful effects of homosexuality" and, for good measure, about "other topics, especially moral values."
A federal trial judge rejected the argument, but the 3rd Circuit was more sympathetic, ruling that the statute prohibited a "substantial amount" of speech protected by the First Amendment. Assuming that the State College school district doesn't appeal the ruling, it will have to go back to the drawing board and devise a policy that takes aim at bullying behavior without muffling student speech.
The 3rd Circuit decision is likely to be one of the most widely read non-Supreme Court decisions in years, and not only because it was written by Judge Alito - or "Scalito," as he's known to some wags because of the affinity of his views and those of Supreme Court Justice Antonin Scalia, another scourge of liberal "political correctness."
Justice Scalia was the author of the Supreme Court's still-controversial opinion in a 1992 decision overturning the conviction under a hate-crime law of a St. Paul, Minn., teen-ager who had burned a cross on a black family's lawn.
The problem, Justice Scalia wrote, was that the ordinance under which the youth was prosecuted was not viewpoint-neutral. It made it a crime to engage in speech or displays that aroused "anger, alarm or resentment in others on the basis of race, color, creed or gender" - but didn't target other so-called "fighting words," such as slurs based on union membership, political affiliation or homosexuality.
The 1992 cross-burning case (R.A.V. vs. St. Paul) is cited in Judge Alito's opinion in the State College case. But a more important precedent is a 1969 Supreme Court ruling, Tinker vs. Des Moines School District. In that case, the court upheld the right of two high school students and one junior high student to wear black armbands to school to protest the Vietnam war.
In the majority opinion in that case, liberal Justice William Brennan Jr. wrote that students (and teachers) don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Students were free to express their opinions, in the cafeteria as well as the classroom, unless it "materially and substantially" interferes with school discipline or intrudes on the rights of other students.
It's ironic that Justice Brennan, the great liberal, would be cited by Judge Alito, a favorite of legal conservatives. But there's an even larger irony at work in the wider political debate about student free speech. Usually social and religious conservatives believe that public schools should inculcate traditional values, and they regard "children's rights" as a noxious fantasy of liberals like Hillary Clinton. But when a child exercises those rights to praise the Lord or disparage homosexuality, there's nobody here but us libertarians!
Finally, the Alito opinion will make waves because of its treatment of the general question about whether sexual, racial or religious harassment that is purely verbal is entitled to First Amendment protection.
"There is no categorical 'harassment exception' to the First Amendment's free speech clause," Judge Alito writes. Elsewhere he suggests tantalizingly that the Supreme Court "has never squarely addressed whether harassment, when it takes the form of pure speech, is exempt from First Amendment protection." Such language is at least an implicit challenge to a body of civil rights law that has allowed women and minorities to bring suit on the basis of a "hostile workplace."
Of course, interesting as those implications of the Alito opinion might be, what parents, teachers and at least some children want to know is whether the 3rd Circuit's decision in the State College case means that "school's out" for anti-harassment policies. Also worried will be gay-rights groups, which have made the bullying of gay youngsters - or those perceived to be gay - a national issue.
Is the appeals court really equating an elementary school with the "marketplace of ideas" in which, thanks to the First Amendment, even the most offensive wares are hawked? To return to the hypothetical cafeteria encounter above, can Johnny the religious conservative dis Adam the gay kid by donning a button with an offensive message, and vice versa? Will teachers used to breaking up fights over PlayStation or Pokemon now have to referee religious and political quarrels?
There is language in the Tinker decision that allows schools to censor students if their speech "disrupts class work or involves substantial disorder or the invasion of the rights of others." Judge Alito notes that exception, and also makes a perfunctory nod in the direction of a later case widely thought to be less favorable to student rights.
Bethel School District vs. Fraser is a 1986 decision in which the Supreme Court upheld the punishment of a high school student who delivered a sexually suggestive nominating speech for a buddy running for class office. ("I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm.")
The Bethel decision was viewed by many lawyers-though not by Justice Brennan - as being inconsistent with the Tinker case. But Judge Alito focuses on the fact that the student's nominating speech in that case was vulgar. "Nonvulgar" student speech, even about another child's religion or presumed sexual orientation, does enjoy First Amendment protection. A button reading "Gays Are Godless!" would pass the vulgarity test, though probably not one that said "God Hates Fags!"
What the 3rd Circuit's decision doesn't address - understandably, since the State College policy covered kindergarten through high school - is the difference between young children and adolescents. If the object is to protect the exchange of ideas, not mere taunting and teasing, the First Amendment argument is more compelling in relation to adolescents than in relation to grade-schoolers.
When Johnny and Adam reach high school, their differences about the morality of homosexuality or the role of the religious right could be fodder for some cerebral and maybe even civil conversations, and not just in civics class. That doesn't mean that their words to one another won't wound. As Henry Louis Gates Jr. pointed out in an influential 1993 essay on "hate speech," a black college student who's struggling in his studies is likely to be less traumatized by a crude racial epithet than he is by this well-meaning assurance: "It isn't your fault. It's simply that you're the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one."
Still, common-sense psychology suggests that the sensitivities of young children should be treated more tenderly than those of adolescents.
Which brings us back to the fourth-grade lunch line. Even if the Supreme Court were to endorse Judge Alito's reasoning in the State College case, a lot of teachers would tell both Johnny and Adam to remove their buttons - or themselves - before philosophical push came to physical shove. And, if pressed later by lawyers, they would invent a fear of "substantial disorder."
Supreme Court Justice Oliver Wendell Holmes, who is revered by First Amendment enthusiasts for his pro-free speech views (he once wrote that "every idea is an incitement"), said that "the life of the law has not been logic; it has been experience."
In the experience of most of us, the majority of children are more like Dennis the Menace than Doogie Howser (or Jerry Falwell). And those children will always shed at least a few layers of "rights" at the schoolhouse gate.
Michael McGough is editorial page editor of the Post-Gazette (mmcgough@post-gazette.com). 