The Good News About the Saxe Decision

In Saxe v. State College, a three-judge panel of the Third Circuit held that an anti-harassment policy violated the First Amendment. Prior to the decision in Saxe, anti-harassment policies were a vital tactic in the fight to eliminate anti-gay bias in K-12 schools. And after? Well, nothing has changed. As long as LGBT and other minority students are denied equal educational opportunities, enacting policies will be an urgent priority in our schools. The Saxe decision does not alter that fundamental fact, but it does provide an opportunity for those who care about educational equality to redouble our efforts toward ensuring a quality, discrimination and harassment-free learning environment. The decision also helps to clarify what anti-harassment policies can say.

What is Saxe v. State College?

Saxe v. State College was originally brought before a United States District Court in Pennsylvania in 1999 by David Warren Saxe, a professor at Pennsylvania State University and member of the Pennsylvania State Board of Education. Saxe sued the State College Area school district (SCASD) on behalf of two Christian students because of the district’s anti-harassment policy. According to Saxe, the policy chilled the students’ ability to express their belief that homosexuality is sinful, in violation of the First Amendment. The American Family Association Center for Law and Policy (a conservative legal group) represented Mr. Saxe. The district court ruled in favor of the school district. But the Third Circuit Court of Appeals—which covers Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands—reversed the district court’s decision and struck down the anti-harassment policy on the ground that the policy was “overly broad” in violation of the First Amendment.

What did the court say?

The court was troubled by several parts of SCASD’s policy. First, the court noted that the policy was too broad and open-ended. For example, the policy prohibited harassment based on “personal characteristics,” including clothes, appearance, hobbies, values, and social skills. The court was also particularly troubled by the policy’s unusual attempt to limit speech about “values,” which could potentially restrict debate between people who simply had differing points of view.

How does this decision impact anti-harassment policies?

In many ways, this decision is a positive thing for students, parents, teachers, and other community members who are working to establish explicit protections for LGBT students in anti-harassment policies. The decision affirms the principle that “preventing discrimination in the workplace—and the schools—is not only a legitimate, but a compelling, government interest.” This makes it crystal clear that harassment has no place in America’s school systems and that schools that fail to adequately address this problem open themselves up to legal liability. This decision will also aid supporters to be more focused in our language, so that these policies cannot be misused to the detriment of LGBT students. Vague policies that allow school districts to widely censor speech can be harmful to LGBT students too, since they could be used to discipline students for how they display their sexual orientation or gender identity/expression.

It is also important to keep in mind, when considering the effect of this decision on other policies, that people on all sides of this issue agree that the SCASD policy was unusual and overly broad in some respects. In addition, this decision does not affect anti-discrimination policies or requirements concerning inclusive curriculum.

Should students who believe that homosexuality is a sin be allowed to express that belief in schools?

Yes. As this case shows, there is a difference between free speech that is the expression of a value or belief, and using words as weapons. Every student should be allowed to be who they are, and express opinions that speak to that end, so long as that speech is not depriving other students of their rights to obtain an equal education.

How should we advocate for sound anti-harassment policies?

We should continue fighting for policies that protect the right of every student to enjoy a school environment that is free of threats, harassment, intimidation and bullying. In the interest of LGBT students and those perceived to be LGBT, who are categorically targeted and disenfranchised, the need for anti-harassment policies is critical.

What if I am concerned about my school’s pending or existing policy?

Most existing anti-harassment policies should not be affected by the decision in Saxe. If you are concerned about yours, consider contacting your school’s legal counsel or the National School Boards Association for review. You can also contact attorneys at the American Civil Liberties Union – Lesbian and Gay Rights Project, Gay & Lesbian Advocates & Defenders, Lambda Legal Defense & Education Fund, and the National Center for Lesbian Rights. A simple adjustment or addendum of interpretation guidelines may be all it needs, if anything, to ensure that it is clearly drafted and sufficiently protective of free speech.

What do I say to people who want to organize but are intimidated by this decision?

History is on our side. Since the passage of statutes like Title VI (prohibiting school-based discrimination based on race) and Title IX (prohibiting school-based discrimination based on gender), the government’s role in preventing discrimination and harassment in education has only become more established, clear and inclusive. As the Saxe decision affirms, “preventing discrimination in the workplace—and the schools—is not only a legitimate, but a compelling, government interest.” While the Saxe decision is a reminder that we must be careful in our use of language and mindful of First Amendment rights, it is also a reminder of just how necessary and important advocacy work on behalf of LGBT students continues to be. So encourage advocates to look at the positive—this decision, whatever the motivation of those who initiated the suit, underscores the necessity of the work we are doing, and helps define what we can do in our schools.