Anti-Harassment Policies

Michael Bronski

Since Columbine,
school shootings and killings have become so routine, even commonplace, that
they have lost their initial horror. The downside is that they have become
part of accepted U.S. behavior patterns. The upside is that there has been a
far deeper, more honest discussion of the role cliques, bullying, class,
gender, and sexual orientation baiting play in the disruptions in school

As a response
to these increasing outbursts of violence, some school districts have passed
anti-bullying and anti-harassment policies. Some punish those who are charged
with harassing, others—taking a more pro-active stance—attempt to create
climates that discourage harassment. These are good attempts at a solution,
although as social psychologist Elliot Aronson recently noted in the New
York Times,
“It’s outrageous that there needs to be [such] legislation.
Clearly schools should be trying to prevent bullying.” Recently, however,
there have been successful attacks, mounted by conservative Christian groups,
on such legislation. On February 14, in the first federal court ruling on free
speech concerns about education anti-harassment policies, a three-judge panel
of the U.S. 3rd Circuit Court of Appeals ruled unanimously that a Pennsylvania
school district’s policy was so broad that it conflicted with students’ rights
to free speech. The challenge to the policy was instigated by Dr. David W.
Saxe, a member of the State Board of Education’s Council of Higher Education.
Saxe filed on the behalf of two unnamed students (who are under his
guardianship) whom he claimed as Christians “not only viewed homosexuality as
a sin but bore a duty to bear witness’.” He claimed that there was a
possibility that their ability to “witness” would be chilled by the
anti-harassment policy, which includes sexual orientation as a protected

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.”

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.

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

“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.

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).