WASHINGTON -- A Virginia school board has decided that students who taunt others with anti-homosexual remarks will be punished, possibly by suspension from school.
The Fairfax County School Board's decision, believed to be one of the first of its kind, appears to defy a recent Supreme Court decision that ruled against "special prohibitions on those speakers who express views on disfavored subjects."
The board's unanimous decision was folded into a clause in the student code of conduct that prohibits harassment on the basis of race, ethnicity or gender. Dolores Bohen, the assistant superintendent for Fairfax County Schools, said that the clause was at least a decade old and that the idea of including sexual orientation in it came from a nonvoting student representative to the board, Sean Bryant, 16.
The Supreme Court last month ruled against certain "hate speech" codes when it found a Minnesota Supreme Court decision in violation of the First Amendment and overturned it. Minnesota had upheld an ordinance that defined certain types of hateful speech or behavior as criminal.
In his majority decision for the High Court, Justice Antonin Scalia wrote that the ordinance was "facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses."
"The school board has taken no consideration to what the First Amendment means," said Robert S. Peck, legislative council for the national office of the American Civil Liberties Union, of the Fairfax board's decision. "A student who decided to take action against a school board that suspended him on this one would easily win."
But Tom Shannon, executive director of the National School Boards Association in Alexandria, Va., said: "I don't think a judge in his right mind would find this unconstitutional. It is to prevent people from hurting others emotionally, and that is it."
First Amendment experts disagree. "What the court has said repeatedly is that you can't reserve words or symbols just for what are good uses," Mr. Peck said. "The school board should be making efforts to educate people about the effects of the harassment, not say certain words are illegal to use."
Beatrice Cameron, assistant superintendent in Fairfax, said that she believed some students had been punished under the original rule and that no students or parents had ever challenged it. Forbidding harassment of homosexuals seemed to be a natural addition, she said.
"This was something that students had brought to Sean's attention as being one kind of verbal abuse that was part of student life," Ms. Cameron said. The intent was to "protect, guide and help" students and that "whether it was constitutional or not was never questioned," she said.