Temple University’s Sexual Harassment Police Struck Down as Violation of Free Speech

In an important decision, the United States Court of Appeals for the Third Circuit has struck down Temple University’s prior sexual harassment policy as unconstitutional as a limit on the free-speech right of students. Christian DeJohn, a member of the Pennsylvania Army National Guard, sued the university, its former president, David Adamany, and two professors, for preventing him from expressing his views about the role of women in the military. Adamany and the school were rightfully found guilty in the dispute and Temple University is an example of how educators have abandoned free speech tenets and have denied the free expression required for students to have a full and unfettered education.

Despite it refusal to yield to this student’s valid objections, the University finally replaced the policy in January 2007 when it was pulled into court — hoping to moot the action. It did not help. The trial judge ruled in DeJohn’s favor on his constitutional claims about the sexual harassment policy and awarded him nominal damages of $1.

Temple’s policy prohibited “expressive, visual or physical conduct of a sexual or gender-motivated nature” that had either the “effect” or the “purpose” of “unreasonably interfering with an individual’s work, educational performance, or status” or “of creating an intimidating, hostile or offensive environment.” It is astonishing that any academics like alone lawyers would create such a highly invasive and poorly written policy. The school insists that it tracked language from the Equal Employment Opportunity Commission.

The unanimous panel noted that

“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 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. The 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 . . . 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.” ”

It is a considerable victory for free speech, though the court upheld the refusal of the trial court’s rejection of DeJohn’s claims of retaliation and injuries as result of the policy. It may cause universities to reconsider the rapid denial of free speech rights on campus across the country.

For a copy of the opinion, click here.

For the full story, click here.

9 thoughts on “Temple University’s Sexual Harassment Police Struck Down as Violation of Free Speech”

  1. As Lawsuit Comes to Close, Sgt. Christian
    DeJohn is Left Stranded

    March 12, 2009
    by William Creeley, Foundation for
    Individual Rights in Education

    This morning, in a federal courtroom a few blocks from FIRE’s Philadelphia headquarters, the landmark case of DeJohn v. Temple University neared its long-awaited completion.

    This may come as a surprise to Torch readers, who understandably might have assumed that DeJohn had been decisively concluded back in August of 2008, when the United States Court of Appeals for the Third Circuit issued a precedential ruling declaring Temple University’s former sexual harassment policy to be unconstitutional. But unfinished business remained: namely, determining the precise amount of attorney’s fees Temple must now pay, with taxpayer money, to student Christian DeJohn’s lawyers. Being on the losing side in this litigation, Temple must pony up, and today’s hearing seeks to set the rate at which DeJohn’s lawyers will be compensated. For comparison, note that Georgia Tech was ordered to pay over $200,000 for violating its students’ freedom of religion.

    Thus, shortly after today DeJohn will have likely reached its legal conclusion. But the case’s namesake—Sergeant Christian DeJohn of Wyncote, Pennsylvania, a student in Temple University’s Master of Arts in Military and American History program and a member of the Pennsylvania Army National Guard—will still be suffering.

    That’s because Christian’s bravery in standing up for his First Amendment rights has exacted a clear toll from him, both personally and professionally. As a direct result of his stand against Temple’s unconstitutional speech code, Christian is currently stranded in academic limbo. Despite having completed all necessary coursework towards obtaining his master’s degree—the full 26 credits, with a 3.2 GPA to boot—Christian’s progress towards receiving his degree screeched to a halt shortly after he filed his lawsuit against Temple. Since filing it, Christian can’t get an honest review of his completed thesis from anyone in Temple’s History Department, leaving him high and dry.

    We’ve covered the exceedingly unprofessional treatment Christian received from his professors in this space before, but a quick review is in order to understand exactly how Christian got stuck in this situation.

    After serving overseas in Bosnia-Herzegovina, where he suffered disabling hearing loss, Christian returned to his studies at Temple in 2003. At this point, Christian’s professors were aware of his conservative political views, for Christian had asked not to receive the anti-war e-mails being sent around by Dr. Richard Immerman’s History Department while he was serving his country abroad. Upon his return, Christian engaged in spirited political debate with his professor in his Comparative History of Modern War class. Dr. Gregory Urwin. This kind of intellectual exchange is precisely what colleges are for, but Christian was quickly marked by his professors for his political views.

    Soon enough, Christian suffered what seemed like obvious retaliation for daring to voice his feelings on controversial topics in class. Specifically, his master’s thesis was trashed by the professor assigned to review it- Dr. Gregory Urwin. Although FIRE, like the courts, does not typically weigh in on grade disputes, given the highly specialized expertise required to properly adjudicate the merits of competing grade claims, it is difficult not to see the incredibly unprofessional and nasty comments prompted by Christian’s thesis as anything other than evidence of personal animus. Read Christian’s complaint and judge for yourself:

    [Professor Gregory Urwin] commented that the thesis was “agonizing” and that DeJohn must suffer from “Alzheimer’s disease.” Urwin also wrote notes in the margins of DeJohn’s thesis. He wrote that DeJohn sounds like a “crackpot,” that his arguments are “absurd,” that the thesis read like “a comic book for 5-year olds,” that it was “amateurish,” that it was “exaggerated melodrama,” “juvenile melodrama,” and “juvenile rhetoric,” “monotonous agony,” “juvenile argumentation,” a “hissy fit in print.”

    Professor Urwin further called Christian a “gnat,” and his professors are on record as saying at the time that they hoped he would “self-destruct.” Again, it’s difficult to see how mean-spirited comments like that could be considered as constructive criticism, academically speaking. At any rate, Christian filed his complaint, which included both a retaliation charge, based on evidence like that excerpted above, and a First Amendment challenge to Temple’s sexual harassment policy.

    As Christian’s case proceeded, the district court ended up dismissing Christian’s retaliation claims. Despite the fact that the presiding judge indicated orally that it certainly seemed as though the judgment of Christian’s paper was politically motivated, and a court order notes that “[i]t is indisputable that, between November, 2001 and August, 2003, something happened that significantly altered Prof. Gregory Urwin’s appraisal of Christian DeJohn,” the lower court eventually found that the law on retaliation in this circumstance was not clearly established enough to pierce the professor’s qualified immunity defense. As such, the retaliation claims were dismissed.

    So while the speech code challenge proceeded to the Third Circuit, resulting in the landmark decision that now bears his name, Christian’s academic progress has consequently been completely stonewalled. At present, Christian probably cannot secure an honest review of his thesis from any faculty member in Temple’s History Department. After he submitted a revised thesis to a new professor in the department put in charge of reviewing the thesis, the professor refused to review it.

    This is appalling, but because of his willingness to take a public stand to defend the right to speak one’s mind at a public university, Christian now finds himself essentially unable to complete his degree.

    Needless to say, Christian is frustrated—and justifiably so. He wrote me yesterday, on the eve of today’s hearing about attorney’s fees:

    Nutty situation, huh? The “losing” attorney, Joe Tucker, Jr., (who is on retainer with Temple at taxpayer expense and gets paid either way) may get who knows, $300,000 for all his work on this, while the prevailing party that took a stand for academic freedom is left with…

    – no prospect of an MA degree (at least at Temple),

    – $50,000 in student loans,

    – personal credit destroyed by Temple through a “computer error,”

    – character assassination by Temple in the media,

    – a mere $1 “symbolic victory,”

    – and, six years into the case, zero accountability or resolution from Temple’s President Ann Weaver Hart (who has been ducking me and the media from the start) and her employees who created the mess.

    And the kicker? This persecution of a student and veteran with the audacity to actually exercise his First Amendment rights is being funded by the Commonwealth of Pennsylvania’s taxpayers, who are unknowingly footing the bill, since all this is occurring at a state-funded school.

    Of course I’m not the most neutral observer in all this, but consider how this would influence students considering taking a stand in the future – as things are right now, if this is what happens to the “winner” when a student speaks up for free speech, after hearing of our outcome, what young college students would be willing to fight, ya know ? That’s why I’m fighting on for accountability from FIRE’s old friend President Hart, et al.

    Hard to blame Christian for being at his wits’ end.

    (Incidentally, Christian calls Temple President Ann Weaver Hart “FIRE’s old friend” because, in an ironic twist, Hart was President of the University of New Hampshire at the time of FIRE’s infamous “Freshman Fifteen” case. That’s the one in which student Tim Garneau was kicked out of student housing—and was stuck living in his car while the case was resolved—after he posted fliers that joked freshman women could lose the “Freshman Fifteen” by walking up the dormitory stairs instead of taking the elevator.)

    The bottom line is that Christian should have had his degree years ago and should have been given a chance to resume normal academic progress. Were it not for speaking his mind, Christian could have sailed through like any other student. Maybe he could have even obtained a doctorate by now!

    Instead, Christian went to court to defend not only his own right to free speech, but also the rights of his fellow Temple students. Indeed, because of the precedential ruling handed down in his case by the Third Circuit, Christian’s personal bravery means that students at every public institution in New Jersey, Pennsylvania, and Delaware are that much freer to engage in protected speech on campus without fear of punishment via unconstitutional speech codes.

    But no good deed goes unpunished, they say, and Christian’s shameful treatment at the hands of Temple University confirms this bitter maxim.

    However, FIRE supporters can still make a difference for Christian, just as Christian has done for his fellow students. As Christian’s legal case comes to a close, I ask that Torch readers who would like to see Temple do right by Christian take the time to write President Hart a brief note, politely asking that Temple’s History Department grant Christian DeJohn’s thesis a review by an objective, third-party panel. Giving Christian’s thesis a fair hearing would be the honorable thing for Temple to do.

  2. As Independence Day Nears, Sgt. Christian DeJohn is Still Waiting
    July 1, 2009
    by William Creeley, Foundation for
    Individual rights in Education

    This Saturday, Americans will celebrate the 233rd anniversary of our declaration of independence. With our nation presently fighting two wars abroad, this year’s Independence Day reminds us again that the brave men and women of our armed forces make unimaginable sacrifices every day in defense of our constitutional freedoms.

    It’s fitting, therefore, to inform Torch readers that this Sunday, Sergeant Christian DeJohn of Wyncote, Pennsylvania, will return to active duty for the Army. One day after the Fourth’s fireworks, Christian will be heading out on active duty to the National Training Center in Fort Irwin, California, right smack in the middle of the Mojave Desert. When he arrives, Christian will be greeted by 100-degree heat, 100 pounds of gear and body armor, and several weeks of very intense desert training.

    But Christian is used to enduring hardships for the constitutional freedoms of both himself and others. Indeed, the name “DeJohn” should be familiar to anyone with an interest in free speech on campus. As FIRE supporters no doubt recall, Christian brought a successful suit against Temple University, where he was and is still a graduate student, which resulted in the United States Court of Appeals for the Third Circuit striking down Temple’s former sexual harassment policy on First Amendment grounds last fall.

    The Third Circuit’s landmark ruling in DeJohn v. Temple University made clear that the free speech rights of students at public universities in Delaware, New Jersey, and Pennsylvania cannot be abrogated by poorly-written speech codes. As such, it was a resounding victory for free speech on campus, and we have Christian to thank. Without his courage, unconstitutional policies would still be on the books.

    Unfortunately, Christian’s “reward” for his victory has been bitter indeed. As I described at length back in March, Christian has been in an uncomfortable academic limbo following the Third Circuit’s decision. I urge you to read the ugly details in full, but here’s the bottom line: Despite obtaining each of the 26 credits necessary for his master’s degree and maintaining a GPA of 3.2, Temple’s History Department has refused to grant Christian an honest review of his master’s thesis.

    That’s right: After filing his lawsuit against Temple, Christian’s progress towards his degree has been completely stonewalled by a school with an axe to grind. He’s done everything required but finish his master’s thesis, and he can’t do that because no professor will review it. Obviously, this leaves Christian in an unbelievably frustrating position. And all for standing up for his First Amendment rights. If it sounds unfair, that’s because it is. Temple should be ashamed.

    Since my entry about Christian’s dilemma was posted back in March, there has been a small but promising sign that Temple may be coming around. In response to an e-mail query, Provost Lisa Staiano-Coico’s office informed Christian last week that they are reviewing his situation, and that they plan on being in touch in the next several weeks.

    While this small note is far from a guarantee, there’s no choice but to hope that Temple decides to proceed in good faith. It goes without saying that Temple should do the right thing and establish a clear path for Christian to complete his degree, free from lingering faculty animus and petty persecution. Christian deserves to be treated fairly, like any other student. To single Christian out and prevent him from obtaining his degree because of his willingness to go to court on behalf of the First Amendment is just plain wrong.

    So here’s hoping that Christian receives good news from the Provost’s office while he’s in California, sweating it out under the desert sun.

    Until then, he’s still waiting. And so are we.

  3. Jill and Palindrome,
    You are right that the marketplace has set the price very low on conservatives views. I also agree with Mespo and Prof. Turley that this was a victory for Free Speech. Now lets improve it a little more by getting rid of “Free Speech zones”.

  4. Of course conservative speech is free. I wouldn’t even give them a penny for their thoughts.

  5. dundar:

    “Now if we can just convince liberals that conservatives also have a right to free speech…:”


    They do, regardless of how stupid it sounds!

  6. After reading that tedious discussion of mootness, I was almost too exhausted to read further. I am glad that I did. The Court’s analysis of the Tinker decision, certainly laid to rest any hope the promoters of the policy have to resurrect that “nanny state” mentality. Good for the 3rd Circuit. At least some Federal Judges still regard academic freedom as worthy of prophylactic protection. It seems a perfect decision since the damage award seemed to match the intellectual value of DeJohn’s work. Does anyone recall Uris’ “QB VII”?

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