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.