Family Group Says Anti-Harassment Policy Violates Free Speech

July 7, 2008 - 8:03 PM

Detroit (CNSNews.com) - A conservative group says the constitutionally protected right of free speech is more important than a suburban Detroit school district's anti-harassment policy, and the American Family Association is threatening to sue if the policy isn't changed.

The AFA of Michigan says it has legal backing for its position, citing a ruling last month by the U.S. Third Circuit Court of Appeals that declared a similar anti-harassment policy in State College, Pa. unconstitutional.

"It prohibits any expression of an opinion, verbally or written, that might be found offensive by any other single student. That is clearly an unconstitutional restriction of First Amendment free speech rights," said Gary Glenn, spokesman for AFA of Michigan.

The anti-harassment policy in Troy, Michigan is very similar to the Pennsylvania policy, Glenn said, which prohibited "harassment," in order to "provide all students with a safe, secure, and nurturing school environment."

The Pennsylvania policy defined harassment as "verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment."

It also defined harassment as including "any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual."

The Troy school district adopted its anti-harassment policy in 1994 and expanded it in 1998 to protect people from being harassed due to their sexual orientation. Michigan's School Code does require an anti-harassment policy, but not one covering sexual orientation.

The American Family Association is specifically concerned about the sexual orientation language because, the group says, it prohibits students from warning fellow students of the medical dangers of a homosexual lifestyle.

In the Pennsylvania case, David Saxe, a Penn State University associate professor of education and a member of the state board of education, made the same argument on behalf of two public school students.

American Family Association attorneys represented Saxe and argued that the students' constitutional rights were violated when they were threatened with expulsion if they expressed disapproval of homosexual behavior.

The Third Circuit Court of Appeals agreed, ruling that such restrictions did violate the core principles of the First Amendment.

"No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination," wrote the justices in their 29-page opinion. "By prohibiting disparaging speech directed at a person's 'values,' the policy strikes at the heart of moral and political discourse -- the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment. That speech about 'values' may offend is not cause for its prohibition."

The decision by the Third Circuit Court is binding only in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, but it established a national precedent that is giving rise to similar challenges in other states.

The American Family Association of Michigan is also fighting a similar policy in the Traverse City area public schools.