Anti-Harassment Policies

The policy, which was written by the State College Area School District (SCASD) in 1999 is broadly worded. In it harassment consists of: “verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics,” such as “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values, etc....which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile, offensive environment.... Harassment can include any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above. Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name- calling, graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display or circulation of written material or pictures.”

The anti-harassment policy was enacted by the school district to ensure that all students would have a safe environment conducive to learning and the court acknowledged that preventing harassment and discrimination in schools is a “compelling government interest.” They did find that the district's policy was too vague and broad, and potentially threatened vital First Amendment protections and that the court was only concerned about the potential for inappropriate discipline of students for speech in a few instances.

Not surprisingly the decision has become yet another battle in the ongoing culture wars about homosexuality. Major conservative groups were touting the ruling as a win in their battle to overturn the “pro-homosexual agenda” that they see as destroying American culture. Donald Wildmon's Tupelo, Mississippi- based American Family Association Center for Law and Policy (which assisted Saxe in the case) claims that the ruling will set a precedent to overturn other anti-harassment policies that would inhibit religious freedom to speak out.

While the 3rd Circuit's decisions are binding for Delaware, New Jersey, and the Virgin Islands, as well as Pennsylvania, it is unclear how many school policies might ultimately be affected. On the other hand, gay legal groups that lobby for the rights of lesbian, gay, bisexual and transgender (LGBT) students have spoken out against the court's ruling claiming that the policy would not infringe on the rights of students to speak their religious views in a respectful manner and appropriate venues. They also note that it is not only religious students who are at risk, as the national advocacy group Gay, Lesbian and Straight Education Network (GLSEN) wrote: “Anti-gay harassment and discrimination are a regular part of school life for lesbian, gay, bisexual and transgender students.

“In America's schoolhouses, anti-gay epithets have emerged as the epithet of choice. Our 1999 national school climate survey revealed that 61 percent of LGBT students had been victims of verbal harassment at school. This abuse places a barrier between an entire category of students and its right to access an intimidation-free learning environment.”

The arguments surrounding the case are being framed in the press as a conflict of rights—the right not to be harassed (and to a learning conducive school environment) versus the right to protected free speech. But this simplistic scenario overlooks two elements. The first is to position the questions within the confines of a school environment. One of the tasks faced by the school district if they choose to rewrite the policy would be to specifically spell out where and when such religious speech and “witnessing” would be appropriate. Surely it would not be considered harassment for a student to state her belief that homosexuality was sinful in a conversation. Such a classroom discussion about the role that religious morality played historically in the creation of laws and social norms would also be appropriate. But would it be appropriate during a health class on AIDS, say, for a student to announce that he believed that anyone who engaged in homosexual behavior would burn in hell? Would it be appropriate for Christian students to leave unwanted religious tracts condemning homosexuality on the desks or lockers of gay students? Or to otherwise attempt to instruct, admonish, or counsel gay students about their homosexuality when they knew this was not welcomed behavior? Saxe's claim—persuasive to the court—was that these Christian students would not be able to “witness” their faith under the policy. An argument could be made that a publically funded educational environment is not the proper place to be “witnessing”—as distinguished from simply holding or articulating—religious beliefs.

The second issue is that Saxe's lawsuit is another attempt to use a constitutional rights argument to attack what is perceived as the legitimization of homosexuality in public policy. Over the past five years conservative Christian groups have claimed that their right to free speech (particularly in declaiming the sinfulness of homosexuality) is threatened by speech codes and anti-harassment policies. The specificity of this argument has been broadened to include the claim that they themselves are the victims of discrimination and harassment when they are called “homophobic” by those who do not agree with their anti-gay views. It is now common for conservative Christian pamphlets that denounce homosexuality as sinful to state that (1) citing homosexuality as a sin is a religious belief not a prejudice and (2) the charge of homophobia is, in these cases, a form of anti-Christian discrimination. Rather then defining “intolerance” as the active persecution of specific religious beliefs or practice, it is now being defined as the public disagreement with them.

This move has clear roots in preexisting government policy and legislation. Since the mid-1970s when anti-gay discrimination laws began being drafted, there have always been conflicts with people who claimed that such laws violated their freedom of religion. The most obvious examples are state, city, and municipal anti-discrimination laws that include sexual orientation that almost always contain religious exemptions. The archdiocese of New York (which holds the belief that same-sex activity is sinful) is not included under the city's anti- discrimination law. It is not even held to the law when it is receiving city money for providing services (such as running hospitals, clinics, or adoption agencies) with a majority of non-Catholic clients.

Also there are at least a half a dozen states now—in which courts have ruled that although sexual orientation is a protected category in their housing discrimination legislation, landlords are exempted from renting units to gay people or unmarried couples if such behavior is against their religious belief. While both of these instances are attempts to balance conflicting “rights,” in each, legal attempts to prohibit discrimination based on same-sex behavior or identity has been circumvented in favor of the primacy of religious belief.

There is no question that Saxe's lawsuit against SCASD's anti-harassment policy was motivated by religious belief about homosexuality. Saxe did not, for instance, claim that these students were being denied the right to “witness” their belief that abortion was murder or that Jews were responsible for the death of Christ. It is also clear that Saxe is far more concerned with a religious agenda than a free-speech one—he has another lawsuit pending before the 3rd Circuit charging that an elementary school's winter holiday program presented Christmas as “a celebration unworthy of respect.” Progressives have long understood that any impingement of free speech would hurt them, and so have been (mostly) vigilant in protecting it for all people. But in cases like these it is also important to place constitutionally protected speech in a broader context. Surely the right to exercise freedom of speech in “coming out” and proclaiming one's sexual orientation without being harassed can be balanced with the right to bear witness to religious beliefs.                  Z

Michael Bronski's writing's have also appeared in the Village Voice, LA Times, and The Advocate and Z. He is the author of Culture Clash (South End Press) and The Pleasure Principle (St. Martin's).