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Temple University‘s now-abandoned sexual harassment policy was declared unconstitutional by a federal appeals court on First Amendment grounds because it could chill the speech of students even if there was no proof that it would “substantially disrupt” school operations or interfere with the rights of others. “Some speech that creates a ‘hostile or offensive environment’ may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility,” U.S. Circuit Judge D. Brooks Smith wrote in his 38-page opinion in DeJohn v. Temple University, issued Monday. The ruling upholds U.S. District Judge Stewart Dalzell’s decision to enjoin the former policy in a suit brought by Christian DeJohn, a sergeant in the Pennsylvania Army National Guard who claimed that during his time as a graduate student at Temple, his free speech rights were violated by a university “speech code” that was vague and overbroad and stifled the speech of students who held religious and conservative views. DeJohn was awarded just $1 in “nominal damages” by Dalzell on his successful First Amendment claim. But Dalzell dismissed all of DeJohn’s other claims that challenged the university’s decision not to award him a degree. Dalzell has not yet ruled on a motion by DeJohn’s lawyers seeking more than $190,000 in attorney fees, saying he would await the outcome of the appeal. The university’s lawyer, Joe H. Tucker Jr. of Booth & Tucker, had urged the 3rd U.S. Circuit Court of Appeals to lift Dalzell’s injunction and not to rule on the constitutionality of the former policy, arguing that the issue became moot when the policy was amended to cure any legal defects during the course of DeJohn’s case. But the unanimous three-judge appellate panel refused to drop the case, finding that Temple had defended its policy in court for more than a year before it amended it, and that the change came only when the university was facing deadlines for filing major briefs in the case. Even after the new version of the policy was adopted, the court said, the university continued to defend the old version in court, including in the 3rd Circuit appeal. “Temple defended and continues to defend not only the constitutionality of its prior sexual harassment policy, but also the need for the former policy,” Smith wrote in an opinion joined by U.S. Circuit Judges Thomas M. Hardiman and Jane R. Roth. As a result, Smith said, “we are left with no assurance that Temple will not reimplement its [prior] sexual harassment policy, absent an injunction, after this litigation has concluded.” Smith found that the former policy was unconstitutionally “overbroad” because it threatened to punish not only speech that actually interfered with other students’ work, but also speech that was intended to do so. By focusing on the speaker’s motive, Smith said, the policy ran afoul of the U.S. Supreme Court’s requirement that limits cannot be placed on speech by students “in the absence of a tenable threat of disruption.” Smith also found that the university’s use of the terms “hostile,” “offensive” and “gender-motivated” made the policy so broad that it could be applied to cover any speech relating to gender that offended someone. “This could include ‘core’ political and religious speech, such as gender politics and sexual morality,” Smith wrote. “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,” Smith wrote. DeJohn’s lawyer, Nathan W. Kellum of the Alliance Defense Fund‘s Memphis, Tenn., office, hailed the ruling as a victory for the free speech rights of conservative students. “Christian and conservative students shouldn’t fear discrimination or censorship by university officials simply for expressing their beliefs. The university is a marketplace of ideas where all viewpoints are welcomed, and this significant ruling makes that clear,” Kellum said in a statement. Tucker said he was disappointed in the court’s decision not to declare the case moot. The appellate panel, Tucker said, took a “cynical view” of the university’s motives when it focused on the delay in changing the policy and failed to recognize that the policy had not been a primary focus of DeJohn’s case until the litigation was well under way. Tucker emphasized that DeJohn had lost all of his other claims in which he accused the university of discriminating against him when it denied him a graduate degree. The lower court, Tucker said, properly rejected DeJohn’s claims on the grounds that DeJohn failed to prove any illegal motive in the university’s decision to reject his graduate thesis. Tucker also complained that DeJohn’s lawyers at the Alliance Defense Fund had “played a legal game of gotcha” and used DeJohn’s case to “push a political agenda” because they are “on a crusade” against what they consider overly liberal professors and administrators in many universities. (Copies of the 38-page opinion in DeJohn v. Temple University, PICS No. 08-1269, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

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