A federal appeals court on Monday declared Temple University's now-abandoned sexual harassment policy unconstitutional -- and it did so in a way that legal experts agree could make it much more difficult for colleges and universities to defend nondiscrimination policies that limit the speech of students.
The unanimous decision  by a three-judge panel of the U.S. Court of Appeals for the Third Circuit came in a 2006 lawsuit brought by a former graduate student in history at Temple University. Christian DeJohn, who was also a member of the Pennsylvania Army National Guard, sued the university,  its former president, David Adamany, and two professors, alleging that the sexual harassment policy in place when DeJohn was enrolled from 2002-6 impaired his ability to express his opinions about the role of women in the military.
In January 2007, just before a federal district court began hearing the case, Temple replaced its existing sexual harassment policy with another (still in place ) that was narrower in scope. But in March of that year, the lower court issued an injunction against the original Temple policy and ordered the case to trial to decide the merits of the case and any potential damages. Temple appealed that order. (When the case went to trial in April, the lower court judge ruled in DeJohn's favor on his constitutional claims about the sexual harassment policy but awarded him nominal damages of $1. It also threw out his claims that the university had unfairly denied him a master's degree.)
Temple had urged the appeals court to declare the case moot because the contested policy was no longer in place and DeJohn was no longer a student at the university. But the Third Circuit panel's three judges, noting that Temple abandoned its original policy only as the trial approached and "continues to defend" the constitutional of and need for the original policy, said they had been "left with no assurance that Temple will not reimplement its pre-January 15 sexual harassment policy, absent an injunction, after this litigation is complete."
In dissecting the university's original policy, the appeals panel found it to be flawed in numerous ways. The court first zeroed in on the fact that Temple's policy prohibited "expressive, visual or physical conduct of a sexual or gender-motivated nature" that not only has the "effect" but the "purpose" of "unreasonably interfering with an individual's work, educational performance, or status" or "of creating an intimidating, hostile or offensive environment."
Under Supreme Court precedents, the Third Circuit panel argued, potentially harassing speech must be shown to "cause actual, material disruption" before it is prohibited. "Under the language of Temple's policy, a student who sets out to interfere with another student's work, educational performance, or status ... would be subject to sanctions regardless of whether these motives and actions had their intended effect." The ruling added: “[T]he Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech ‘which has the purpose or effect of’ interfering with educational performance or creating a hostile environment. This ignores [a previous decision's] requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it.”
More fundamentally, the court found, the language in Temple's discarded policy bars an overly broad range of activities. "[T]he policy’s use of 'hostile,' 'offensive,' and 'gender-motivated' is, on its face, sufficiently broad and subjective that they 'could conceivably be applied to cover any speech' of a 'gender-motivated' nature 'the content of which offends someone,' " the judges wrote, borrowing language from a 2001 decision involving a public school system .
"Absent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work -- the policy provides no shelter for core protected speech," such as that involving political or religious topics.
Advocates for free speech and higher education legal experts agreed that the Third Circuit's decision in the Temple case was significant -- even as their views diverged on the soundness of the court's reasoning.
David Hacker, a lawyer for the Alliance Defense Fund's Center for Academic Center, which represented DeJohn, said the court was right to find that Temple's policy was too broad. "A student would look at this policy and say, 'Whoa, I can't say anything that has the purpose or effect of creating an offensive environment,' and that is really dangerous, and can inhibit an academic discussion," Hacker said. "It allows the university to look at the student's intent, and not just the result" of his or her speech.
Hacker and John K. Wilson, founder of the Institute for College Freedom and of the College Freedom blog , which joined groups like the Foundation for Individual Rights in Education and the American Civil Liberties Union in filing a friend of the court brief  on DeJohn's behalf, agreed that the court's decision could make many colleges vulnerable to similar challenges, especially in states, like Pennsylvania, New Jersey and Delaware, that are part of the Third Circuit. "Suing universities for speech codes becomes a lot easier, because you don't need to have a victimized litigant" -- in other words, someone who can prove that he or she was hurt by the policy, said Wilson. "That reality creates for universities an impetus to change their policies before someone tries to sue them."
Robert M. O'Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression and an expert on higher education law, concurred that the Third Circuit's ruling would probably bring more scrutiny to colleges' policies. But while he described himself as an opponent of speech codes, O'Neil characterized the court's decision as "very ominous" because it so casually cast aside Temple's policy without hardly any consideration of whether DeJohn was hurt by it.
Not only did the court not show that the now-abandoned policy affected DeJohn, O'Neil said, but the panel's ruling did not even note that the Temple policy exposed violators to penalties. "There is no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy," O'Neil said, adding that a finding of such a threat is a "standard prerequisite in First Amendment litigation, including those cases that have invalidated genuinely coercive speech codes."
"I'm baffled that the court made no reference either to what consequences he might have faced or to any attempt to demonstrate that this particular plaintiff had said or was likely to say things that might bring the sexual harassment policy down on his head," O'Neil added.
He said he was concerned that the Third Circuit's casual dispatching of the Temple policy could "prevent public institutions from adopting and articulating standards and expectations of civility and collegiality if they contain any language that a court might construe to be restrictive with respect to expression."
A Temple spokesman, Ray Betzner, said the university was "disappointed" that its policy had been declared unconstitutional, since it "tracked the Equal Employment Opportunity Commission’s definition of sexual harassment." Betzner noted that the ruling "does not disturb the district court’s prior rulings in Temple’s favor on the plaintiff’s discrimination and retaliation claims," nor the lower court's finding that "Temple appropriately exercised its academic freedom when its professors determined that Mr. DeJohn’s thesis did not meet the requirements for a master’s degree."