Another Chapter in the Culture Wars: 3rd Circuit Panel Invalidates Former Temple University Sexual Harassment Policy

A three-judge panel of the U.S. Court of Appeals for the 3^rd Circuit has issued a ruling finding unconstitutional a sexual harassment policy formerly in effect at Temple University in Philadelphia.

Ruling on August 4 in DeJohn v. Temple University, Case No. 07-220, the court strained to find that it had jurisdiction over the matter, in light of the fact that the plaintiff is no longer enrolled at the school, making the injunction issued by the district court moot as to him, and the University modified its policy to avoid the constitutional problems, meaning that they are being ordered to do what they have already done. In other words, in my opinion, the court was issuing an advisory opinion and should have dismissed the case as moot in the absence of a certified class action or a group of student plaintiffs including some who are continuing to be enrolled.

But this is a Culture Wars case, the panel consisted of two judges appointed by George W. Bush and one appointed by his father, and this panel seemed to be eager to strike a blow in the culture wars, even if it was not necessary to resolve an actual controversy between the parties. For jurisdiction, the court relied on the rather lame idea that Temple, if not permanently enjoined from doing so, might reinstate the contested policy as soon as the case was dismissed. I rather doubt that, as the district court already demolished their policy one time around, and competent university counsel should have advised them that the challenged policy was basically indefensible in light of Supreme Court and 3^rd Circuit precedents.

Alliance Defense Fund is behind this case, which sends a clear signal to the panel that the eyes of conservative court watchers are on them with this one. ADF has been pretty much on a role in the speech code wars...

I don’t dispute the outcome on the merits. Temple’s original policy, as quoted and described in the opinion, does strike me as defective under the First Amendment due to its over-breadth. The school’s policy, reduced to its most basic terms, essentially says that students are forbidden to say anything "gender-related" that might give offense to anybody. That’s actually absurd for a university. It may even be absurd for a high school, although the 9^th Circuit in the Harper v. Poway case bought the argument that allowing students to wear t-shirts with homophobic slogans on them could so psychologically harm gay students as to interfere with their ability to get an education, a conclusion with which the 7^th Circuit has subsequently disagreed, in a case evaluating basically the same t-shirt slogan. As a gay rights activist, I like the Harper v. Poway result, but as a legal scholar and civil libertarian, I find it peculiar in light of the 1^st Amendment and the Supreme Court’s venerable Tinker v. Des Moines School District opinion, which sets the rules for high school censorship cases. But it is significant that the Supreme Court decided that the Poway case was moot and the lower court decision should be vacated....

This is not to detract from the reality that some students age 18 and up have tender sensibilities and might sustain psychological upset from viciously racist, sexist or homophobic remarks directed at them or declaimed in their presence – to the extent that their ability to participate in the life of the university might be severely impaired. – just as seems more likely for less mature and socially self-confident high school students. But the Temple policy went far beyond that, and I thought the wording had the kind of latent ambiguity that would make it difficult for somebody to know whether what they wanted to say would "cross the line." A narrowly focused policy basically tracking the Supreme Court’s "fighting words" doctrine would make the most sense for a university setting. After all, as the DeJohn court points out, a university is supposed to be a forum for the free discussion of politically controversial topics, and it is rather hard to discuss controversial topics without giving offense to somebody. And, after all, once they are at the college level, shouldn’t students be learning about how to survive in the real world where there can be rough give and take on controversial issues? Haven’t these folks been looking at the TV ads in the presidential campaign?

The plaintiff, Christian DeJohn, was a graduate student who enrolled while a member of the Army Reserve and had his graduate work interrupted when his unit was called up and he had to serve for a time in Bosnia. He chose to write a thesis on military policy, and alleged that the school’s sexual harassment policy so chilled his speech that he was afraid, both in classes and in his thesis, to express certain points of view about the role of women in the military. Perhaps that allegation seems absurd as a practical matter. A tough Army veteran is afraid of being persecuted by effete school administrators for stating politically unpopular views about women in the military? On the other hand, there are all too many scare stories going around about educational administrators at various levels who seem incapable of nuanced thought when confronted with anything controversial going on at their schools. (Consider, for example, the principal at Okeechobie High School....) And, of course, there are some cases where students mouthing off with "politically incorrect" views have suffered real consequences from academic thought police. I’m sure the Alliance Defense Fund can cite chapter and verse on those....

So, the culture wars continue and a 3^rd Circuit panel hurls its javelin at "political correctness" run amok at Temple. DeJohn’s lawsuit actually achieved what it should have achieved without the need for any injunction; just the threat of depositions in which administrators were going to have to explain the rationale for their policy got the University to change to a policy that is presumably constitutionally defensible. (Tthe court does not go into any detail about the new policy, which it treats as essentially irrelevant since the old policy is the subject of the lawsuit, and the rather thin basis for finding jurisdiction is the need to enjoin the old policy so the school won’t dare to revive it.)

I think that if Temple University seeks en banc review here, it is possible that the circuit would decide that this panel got out of hand and inappropriately gave an advisory opinion in a moot case. I’m not positive that would be the result, but it strikes me as an appropriate one. It doesn’t really matter, actually, because all institutions of higher education in the 3^rd Circuit are now on notice, for the moment, that overly broad sexual harassment and hate speech policies need to be cut back to avoid embarrassment in court.