Alito in 2001: No 'harassment exception' to the 1st Amendment

Judge Alito wrote the majority opinion that struck down a PA school system's anti-harassment law. This is a fantastic opinion! Excerpts below in this article from Feb 15, 2001 in the Dallas Morning News.

The left is going to be a bit miffed at this one!

ANTI-HARASSMENT POLICY REJECTED
Judges: Schools Violated Free-Speech Right

PHILADELPHIA--In a decision that could affect public schools throughout the country, a federal appeals court panel ruled Wednesday that a Pennsylvania school district's anti-harassment policy violates the free-speech right of Christian students to speak out against homosexuality.

The three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously invalidated the State College Area School District's 2-year-old Anti-Harassment Policy as being "overly broad." Under the policy, wrote U.S. Circuit Judge Samuel A. Alito Jr., a student could be disciplined for making a comment that another student overheard, found offensive and reported to school officils.

"There is no categorical 'harassment exception' to the First Amendment's free speech clause," Judge Alito wrote, adding that the policy banned much speech that is not considered harassment under federal or state law.

School officials nationwide have been trying for years to cope with an increase in harassment among students, conscious of their legal liability if they ignore the problem.

David B. Consiglio, the lawyer for the State College Area School District, said he would have to consult with school officials before deciding whether to appeal.

The 3rd Circuit's decision is binding on federal judges in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands. Experts said the ruling could expose hundreds of districts to challenges.

"I don't know how many school districts have policies as broad as State College's, but it is probably a significant number," said Michael I. Levin, a lawyer for the Pennsylvania School Boards Association.

Bryan J. Brown, a lawyer for the Mississippi-based American Family Association Center for Law and Policy, a conservative legal group, said the ruling was the first by a federal appeals court addressing the free-speech implications of school harassment policies.

Mr. Brown sued the State College Area School District in 1999 on behalf of David Warren Saxe, a Pennsylvania State University education professor, member of the Pennsylvania State Board of Education and legal guardian of two children in the State College district.

According to the appeals opinion, Mr. Saxe's children are Christians who believe that homosexuality is a sin and is harmful, and that they have a duty to "witness," or share their beliefs, with gays and lesbians. Doing so, Mr. Saxe's lawsuit said, would expose his children to discipline ranging from warning to expulsion under the district's anti-harassment policy.

The policy's specified types of banned harassment include race, religion, ethnicity, disability and sex, as well as "clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values, etc."

Mr. Brown said the policy doesn't differentiate between free speech about issues and targeted harassment that disrupts a student's opportunity to learn.

Judge Alito wrote that since 1969, the Supreme Court has carved out several narrow circumstances in which school officials may restrict free speech.

A school may categorically ban "lewd, vulgar or profane language," Judge Alito wrote, and may regulate speech to meet a "legitimate pedagogical concern."