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Christian Students Must Be
Allowed to Say Homosexuality Is a Sin
Court Decision
Will Have Profound Impact in Massachusetts
February
16, 2001
A
decision by a U.S. Court of Appeals in Philadelphia about freedom
of speech will have a profound impact in Massachusetts, says Boston’s
constitutional lawyer Chester Darling.
A
three-judge panel held on Wednesday that Christian students must
be allowed to say that homosexuality is a sin and to speak out
on other moral issues.
“We’ve
been limiting free speech for a long time in Massachusetts, but
this unconstitutional practice will not continue,” Darling predicted.
“Our
terrible attitude was exhibited in its worst light last month,”
Darling said, “when the mayor of Newton said that he would fight
with those parents who disapprove of school policies about homosexuality
‘until their voices are no longer heard.’
“They
must stop that type of bigotry,” Darling said, “an if they don’t,
we will be happy to have a court instruct them.”
Parent
Challenges Schools
The suit in the Philadelphia court was about an anti-harassment
policy in schools at State College, Pennsylvania. It was challenged
by a parent as soon as it was implemented because his children
feared, according to the court, that “they were likely to be punished
under the Policy for speaking out about their religious beliefs,
engaging in symbolic activities reflecting those beliefs, and
distributing religious literature.”
The
Court of Appeals reversed a lower court which had dismissed the
parent’s suit.
The
court ruling said the school district went too far when it prohibited
harassment based on everything from race and sexual orientation
to “other personal characteristics,'' including clothing, appearance
and social skills.
Experts
said the ruling could force hundreds of school districts to reassess
their own policies to ensure they comply with the ruling, the
Associated Press has reported.
While
the court acknowledged the district has a compelling interest
in promoting a safe and conducive learning environment, it said
officials failed to explain why it anticipated disruption ``from
the broad swath of student speech prohibited under the policy.''
Judge
Samuel A. Alito wrote that the policy, enacted in August 1999,
``appears to cover substantially more speech than could be prohibited''
under existing U.S. Supreme Court precedents.
A
school may categorically ban ``lewd, vulgar or profane language''
and may regulate speech to meet a ``legitimate pedagogical concern,''
he wrote. But other speech may be limited ``only if it would substantially
disrupt school operations or interfere with the rights of others.''
``They
believe, and their religion teaches,” the parent about his children,
“that homosexuality is a sin. Plaintiffs further believe that
they have a right to speak out about the sinful nature and harmful
effects of homosexuality.''
The
parent argued that rules were already in place that prohibited
violence and other physical harassment.
``What
this policy was about is the content of somebody's speech,'' he
said, ``and it chilled the First Amendment rights of every child
in that school, every teacher, every visitor.''
The
appeals court ruling overturned a lower court. The U.S. District
Court had rejected the parent's suit, saying harassing speech
has never been protected under the free speech protection of the
First Amendment.
Superintendent
Patricia Best told the Associated Press she was disappointed with
the decision,
but had not had a chance to review it with other district officials
or with the district's attorneys.
She
said she didn't know whether the district would appeal.
One expert told The Philadelphia Inquirer that the ruling could
have a sweeping impact.
``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.
Excerpts from Opinion
The
court said, “In short, we see little basis for the District Court'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.’ Such a categorical rule 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. We do not suggest, of course,
that no application of anti-harassment law to expressive speech
can survive First Amendment scrutiny….We simply note that we have
found no categorical rule that divests ‘harassing’ speech…of First
Amendment protection.
*
*
*
“Certainly,
some of these purported definitions of harassment are facially
overbroad. No one would suggest that a school could constitutionally
ban ‘any unwelcome verbal…conduct which offends…an individual
because of ‘ some enumerated personal characteristics. Nor could
the school constitutionally restrict, without more, any ‘unwelcome
verbal…conduct directed at the characteristics of a person's religion.’
The Supreme Court has held time and again, both within and outside
of the school context, that the mere fact that someone might take
offense at the content of speech is not sufficient justification
for prohibiting it.”
*
*
*
“Thus,
[the] strictures [of the school’s anti-harassment policy] presumably
apply whether the harassment occurs in a school sponsored assembly,
in the classroom, in the hall between classes, or in a playground
or athletic facility.”
Click
here for full text of the opinion of Saxe v. State College
Area High School, No. 994081, February 14, 2001.
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