Saxe as an Erosion of Individual Protections

This paper examines the consequences of Saxe v. State College Area School District as it affects schools in the development of anti­harassment policy. Cornel West’s lens, described in Democracy Matters (2004), alleging imperialistic overtones in contemporary governance is used to frame how a well­intended policy was maligned by the Third Circuit Court of Appeals to deny constitutional protection to minority groups, especially gays. The case is provocative in that it also illustrates how courts can be manipulated to advance hegemonic political agendas. This article is timely considering recent changes to the membership of the United States Supreme Court. Saxe v. State College Area School District (SCASD) presents a forum for considering the classic dilemma posed in legal and ethical debate when parallel claims posit liberty and equality at dichotomous ends. In Democracy Matters (2004), Cornel West advances a theory that American democracy has become vulnerable to the “three dominant dogmas of free­ market fundamentalism, aggressive militarism, and escalating authoritarianism [which, he charges] are snuffing out the democratic impulses that are so vital for the deepening and spread of democracy” (p. 7­8). West argues that “political nihilism” described as an “intoxication with the exercise of power” and an “obsession with stifling” resultant criticisms (p. 29), has codified these canons. He asserts that jeopardized democratic principles in prevailing political ideology have given rise to an “imperialistic” state. West makes reference to how judicial activism has eroded already­compromised constitutional safeguards that were intended to protect individual rights and the outcome of Saxe offers eye­opening evidence to support West’s assertions. The case involved Saxe’s objections to an ‘anti­harassment’ policy developed by SCASD in which he alleged the policy would have the effect of infringing on plaintiffs’ First Amendment rights to freedom of expression and religion. Using West’s lens, Saxe appears to offer an illustration of, if not an historical account for, a systematic undermining of democratic rights for individuals in favor of a federally sponsored imperialistic agenda. The case record provides an opportunity to illustrate how an executive branch appointed judiciary can engage in the advancement of an aggrandized political ideology vis­a­vis the long reach of the federal bench rather than functioning as an integral part of a system of checks and balances the framers of the constitution conceived. Case History In the interest of maintaining safe and orderly schools and in part responding to the Supreme Court’s decisions in Faragher v. City of Boca Raton (1998) and Burlington v. Ellerth (1998) which decided “that a proper defense to a sexual harassment suit required an anti­harassment policy and a designated person to whom to report harassment” (Yeargain & Wyld, 2001), in 1998 the SCASD adopted a policy which included the following operational definitions: Harassment means 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. 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. Litigation commenced when Saxe complained to a Pennsylvania Federal District Court on behalf of two student­plaintiffs that the anti­harassment policy would have the effect of infringing on their rights to freedom of expression and practice of their religion. Claiming their religion includes a world view that considers homosexuality sinful and as such is something their faith compels them to publicly speak out against, Saxe, a Christian, believed that the ability to freely express his religious convictions would have been restricted by the policy. Saxe asked the court for injunctive relief that would bar implementation of the policy alleging that plaintiffs’ feared they could be punished for “speaking out about their religious beliefs, engaging in symbolic activities reflecting those beliefs, and distributing religious literature” (Saxe v SCASD, 1 Colitti: Saxe as an Erosion of Individual Protections Published by Western CEDAR, 2006