FIRE’s Commentary on SAXE v. STATE COLLEGE AREA SCHOOL DISTRICT F.3d, 2001 WL 123852

In a case in which FIRE collaborated on appellate strategy, the United States
Court of Appeals for the Third Circuit has taken a momentous step in redressing
the harm to constitutional liberty done by school and university administrators.
The Court ranks just beneath the United States Supreme Court in authority, and
it has jurisdiction over Delaware, New Jersey, Pennsylvania, and the Virgin
Islands. In Saxe v. State College Area School District, it has stated
plainly and forcefully what FIRE and other defenders of liberty and academic
freedom have been saying all along: The First Amendment does not disappear merely
because those who seek to suppress free speech disguise the true nature of their
handiwork by calling it a “harassment code” rather than what it really is, a
“speech code.” The case is crucial for those who defend constitutional protections
of speech from the vagueness, overbreadth, partisanship, and overreach of so-called
harassment codes. The decision is of particular importance for colleges and
universities either legally or morally bound by constitutional criteria, because
the courts allow far greater regulation of speech in elementary, middle school,
and secondary school settings than they do in higher education. The case, thus,
speaks with particular and urgent force to colleges and universities.

The Third Circuit issued its unanimous three-judge ruling in a lawsuit
challenging the constitutionality of a public school district’s
“anti-harassment” policy. According to the State College Area School
District (SCASD), the policy was designed to prohibit “verbal conduct”
(that is, speech) on matters of race, religion, gender, sexual
orientation, and other characteristics, that “has the purpose or effect
of substantially interfering with a student’s educational performance
or creating an intimidating, hostile or offensive environment.”

SCASD’s policy is similar to the anti-harassment speech codes that
dominate the nation’s public and private institutions of higher
education. FIRE’s ongoing national survey indicates such codes are in
place at almost 90% of America’s campuses. Because the constitutionally
impermissible SCASD code was applicable to institutions of elementary
and secondary education, FIRE is confident that the Court’s holding and
reasoning about free speech will apply with yet fuller force when the
issue is litigated in the context of higher education, that is, of the
speech codes found at public college or university campuses.

In light of the Court’s opinion, it is now clear that private campuses
with “harassment” codes that limit free speech may not hide from the
reality that they willfully choose to deprive their students and
faculty of the free speech and academic freedom enjoyed on public
campuses. If they are going to take advantage of their private status
to maintain such controls over student and faculty speech, they will
have to do so without claiming that the law made them do it or that
such a code would pass constitutional muster. They will have to concede
that students on any public campus enjoy a freedom of speech that they
deny, by their choice, to their own students. Further, no college or
university will be able to defend its speech code any longer by
claiming that it fears legal liability for failure to address claimed,
perceived, or even actual “sexist, racist, or homophobic speech,” much
less any serious speech on controversial social, political,
philosophical, or scientific issues. Campus administrations often have
argued that they fear being sued by an aggrieved student who claims to
be disadvantaged as a result of speech that he or she finds personally
“offensive.” The Court of Appeals has made it clear that campuses are
safe havens for even the most offensive or controversial speech, and
that individuals will have to deal with such matters by means of the
resources available to a free people: debate, moral witness, moral
reprobation, logic, and evidence—in short, with further free speech.

No college, under this legal decision, could successfully be sued for failing to prohibit such speech. Indeed, public campuses are subject to legal liability for failing to protect
the First Amendment rights of students. Private campuses that claimed
that they believed in free speech but were forced, by law, to restrict
it, now can honor their commitment. In short, all campuses now have a
strong incentive to abolish such codes.

In this specific case, the Court noted, the plaintiffs were students
who “openly and sincerely identify themselves as Christians.” As such,
“they believe, and their religion teaches, that homosexuality is a sin”
and they “feel compelled by their religion to speak out” on this and
“other topics, especially moral issues.” The specific terms of belief,
however, were not essential to the Court’s ruling. The Court based its
decision, of course, upon the state’s lack of power to favor one side
or the other in any debate or dispute, or, indeed, with respect to any
political, religious, or cultural issue. What is essential in terms of
the state, the Third Circuit ruled, is “content neutrality.”
The Court cited a large number of old and recent Supreme Court
decisions to this effect. Simply put, the state may not dictate the
religious, moral, political, ideological, or cultural views of the free
citizens whom it serves. The state may not determine favored opinions
and proceed to restrict the speech of those who do not agree.

The Court concluded that the state’s characterization of the “verbal
conduct” it disfavors as “hate speech” does not deprive speech of its
First Amendment shield. Instead, the Court’s opinion confirmed clearly
and consistently that speech, however unpopular with the government, is
entitled to the broadest possible constitutional protection. As the
Third Circuit reiterated, the First Amendment applies with full force
to the protection of speech that runs contrary to the official
orthodoxies of the day. This was true for leftists assailed by
McCarthyism in the 1950s and for anti-war activists in the 1960s and
1970s. It is true today for religious Christians who hold unpopular
views on homosexuality. It is true for all of the citizens of a free

This decision is consistent with the holdings of virtually every other
federal appellate court faced with a similar question. The Third
Circuit went farther than any other court, however, in drawing the line
between legally sanctionable true “harassment” and speech that, because
of its unpopularity, is deemed “harassment” by school administrators.
Although “non-expressive, physically harassing conduct is entirely
outside the ambit of the free speech clause,” the Court held, “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
.” Warning school authorities against
the use of “harassment” codes to silence speech, the Court noted that
“where pure expression is involved, anti-discrimination laws steer into
the territory of the First Amendment.”

The Court observed that while the Supreme Court has upheld the
applicability of restrictions on true harassment in a variety of
workplace and academic environments, the high court has never ruled
that “harassment, when it takes the form of pure speech, is exempt from
First Amendment protection.” The Third Circuit went on to note that the
expansive interpretation of purported civil rights laws and codes has
created a “very real tension between anti-harassment laws and the
Constitution’s guarantee of freedom of speech.” Of course, in any such
conflict, the Bill of Rights overrules any statute or regulation.

The Third Circuit did not feel the need to “map the precise boundary
between permissible anti-discrimination legislation and impermissible
restrictions on First Amendment rights” in this opinion, because, as
the Court made clear, the anti-harassment speech policy at issue
clearly crossed any conceivable constitutional line. The code, the
Court ruled, was invalid “on its face” because of its overbreadth –
that is to say, because it outlawed the utterance of a vast range of
protected discourse. Indeed, the Court held, the policy would “punish
students for simple acts of teasing and name calling.” SCASD defined
harassment as verbal or physical conduct based on race, sex, national
origin, sexual orientation, or other personal characteristics that has
the effect of creating an intimidating or hostile environment. As
examples of harassment, the policy included jokes, name-calling,
graffiti, and innuendo, as well as making fun of a student’s clothing,
social skills, or surname. Note that this definition mirrors, almost
identically, existing speech codes at colleges and universities around
the country. In words that college administrators and judicial officers
should take to heart, Judge Samuel A. Alito Jr. held that the Court was
merely upholding the rulings of previous federal courts that true
harassment codes were not violated by epithets that injured someone’s
feelings or by “discourtesy and rudeness.”

The Court made clear that harassment laws purporting to prohibit verbal
activity “that objectively denies a student equal access to a school’s
educational resources”—the purpose claimed by proponents of academic
speech codes—are
not constitutional when what they actually do is prohibit speech seen
as offensive by those who disagree with or are annoyed by it
Furthermore, the claim that the government has the power to curtail
speech when it is likely to produce “a specific and significant fear of
disruption” cannot justify the banning of offensive speech in a free
society that is protected by the First Amendment. As the Court ruled:
“The Supreme Court has held time and again, both within and outside the
school context, that the mere fact that someone might take offense at
the content of speech is not sufficient justification for prohibiting

Administrators at public universities no longer may claim that they have the power to ban “offensive” speech on the grounds that it somehow interferes with the rights or opportunities of other students. One has a right to equal opportunity in our society, but one does not have a right to live without being offended, particularly on a campus of higher education where the exchange of ideas is of primary importance. If the banning of “offense” were applied equally to all, we would be a community of silence. A free society does not exchange liberty for other social values.

Cases: State College Area School District: Speech Code Court Decision