There is no bright legal line that determines when student speech becomes harassment. Generally, however, when a student or a group of students repeatedly intimidate or threaten another student, the behavior rises to the level of harassment. Harassment may also be written, oral, or physical acts that harm a student, damage the student’s property, interfere with the student’s education, or disrupt the orderly operation of a school.

School officials must restrict certain kinds of harassing language and actions they know about or they can be held civilly liable.¹ Categories of harassment are found in several federal statutes and prohibit discrimination based on gender;² disability;³ and religion, race, color, or national origin.⁴ The Supreme Court recognizes that students may even bring suit against the school for a "hostile environment" based on student-to-student sexual harassment. In such cases, the student must prove (1) the sexual harassment is "severe, pervasive, and objectively offensive"; and (2) that it "undermines and detracts from the victim’s education experience" to the point that the harassed student is denied equal access to resources and opportunities.⁵ In order to be held liable for student-to-student harassment, the school must have actual knowledge of the misconduct, the harassment must be severe and pervasive, and the school must be willfully indifferent.

For example, a mother seeking monetary and injunctive relief under Title IX of the Education Amendments of 1972, alleged that her 5th grade daughter had been the victim of sexual harassment by another student in her class. The case made its way to the Supreme Court, which considered whether a private damages action may lie against the school board in cases of student-to-student harassment.

In its ruling, the Court wrote the following conclusion:

We conclude that [a private damages action] may [be brought against a school], but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.⁶

Using these parameters, schools can, and in some cases must, craft speech codes restricting harassing language and conduct. Concern about harassment, however, should not lead to the hasty adoption of speech codes that would censor protected forms of student speech. Under the First Amendment, schools may not implement speech codes that are overly broad or vague.

Some recent "anti-bullying codes" fall into this category. As the Pennsylvania case of Saxe v. State College Area School District demonstrates, schools may not create speech codes that forbid all offensive or hurtful language.⁷ As the Supreme Court has pointed out, one of the foundational principles of the First Amendment is that "the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."⁸

In essence, this means student speech that expresses ideas about values, morality, religion, or politics may not be restricted without some clear evidence that such speech interferes with the rights of another.

¹ Franklin v. Gwinnett County Public Sch., 503 U.S. 60 (1992); Davis v. Monroe County Bd. of Education, 526 U.S. 629 (1999).

² Title IX of the Education Amendment of 1972, 20 U.S.C. § 1681(a).

³ Rehabilitation Act of 1973, 29 U.S.C. § 794.

⁴ Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Age has also been a protected category, though age is not a factor in the public primary or secondary school discussion.

⁵ Davis v. Monroe County Bd. of Education, 526 U.S. 629 (1999).

⁶ Id.

⁷ Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001).

⁸ Texas v. Johnson, 491 U.S. 397, 414 (1989).

Last updated: Thursday, September 9, 2010 | 02:39:25