First Amendment Free Speech Protections Limit University's Enforcement of its Sexual Harassment Policy
A Federal Appeals Court in Philadelphia enjoined Temple University from enforcing its “facially overbroad” sexual harassment policy because some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. In DeJohn v. Temple University, the Third Circuit Court of Appeals invalidated a public university’s Policy on Sexual Harassment that reads like that of many private employer’s, finding fault with the italicized language:
For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when… (c ) such conduct has the purpose and effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment.
The court found three areas of the policy language that were overboard so as to potentially stifle protected free speech:
- The phrase “gender-motivated nature” is too indefinite taking into account the speaker’s motivations not limiting only the affect of speech and possibly inhibiting expression of a broad range of social issues. The Court also cautioned that “we must be aware that ‘gender’ to some people, is a fluid concept.”
- The phrase “conduct which has the purpose and effect of unreasonably interfering” is too broad as it prohibits speech that “intends” to cause disruption. The university may only prohibited speeches that it reasonably believes will actually and materially disrupt the learning environment. (Interestingly, the “purpose and effect” language used by the EEOC.)
- The phrase “unreasonably interfere[s] with an individual’s work” is too restrictive because it may encompass speech that creates a hostile or offensive environment but is protected nonetheless. A policy may prohibit speech that “substantially” interferes by using an additional standard like “severe and pervasive.”
Many employees in the private sector believe they have a constitutional right to say whatever they want in the workplace. This is not the case and employees in the private sector may be disciplined for violating workplace conduct standards.
Private employers are not subject to the free speech protections of the First Amendment. They can also take solace in the fact that a federal court is less likely to wordsmith their employment policies. The case shows the difficulty that all employers face in regulating workplace speech and conduct. There are obvious challenges in drafting a harassment policy that is not so replete with legalese that is becomes incomprehensible to the workforce.
Private employers are protected by the First Amendment, but not subject to its restrictions.
Thus, the First Amendment does not prevent them from firing bigots, but if the government (through threats of tort liability or otherwise) makes them fire bigots who engage in protected speech, they can indeed raise a First Amendment defense.
As cases like Korb v. Lehman (4th Cir. 1990) and Truax v. Raich (Supreme Court, 1916) make clear, the restrictions an employer VOLUNTARILY adopts are not subject to the Constitution, but the Constitution DOES protect it from being FORCED to adopt inappropriate restrictions on its employees.
Korb held that the First Amendment forbade the government from pressuring a private employer to fire an employee for his speech, even though the private employer could have voluntarily fired the employee.
Truax held that the Constitution barred a state from coercing an employer into firing an employee because he was an alien, even though back then there were no civil-rights statutes preventing an employer from voluntarily firing an employee, meaning the employer could voluntarily have fired him.
Thus, the First Amendment is a shield -- but not a straightjacket -- for private employers.
By the way, tort liability constitutes state-action subject to the First Amendment, as New York Times v. Sullivan (1964) held.
I explain all of this in an August 5, 2008 post at OpenMarket.org, the blog of the Competitive Enterprise Institute, where I am Counsel for Special Projects.
Victory for Free Speech in DeJohn v. Temple
by Kelly Sarabyn, FIRE
August 4, 2008
The Third Circuit Court of Appeals filed an opinion today in DeJohn v. Temple University, et al. The opinion provides an eloquent defense of free speech rights on university campuses and concludes with an unambiguous finding that Temple's speech code is facially unconstitutional.
Today's ruling is a great victory for Sergeant Christian DeJohn, the Temple master's student and member of the Pennsylvania Army National Guard who brought the challenge to Temple's speech code. Christian's willingness to take a stand for his First Amendment right to free expression is a commendable act of bravery-perhaps no surprise, coming as it does from a young man who has served his country in Bosnia-Herzegovina (where he suffered disabling hearing loss), Egypt, and Korea.
It's also a victory for FIRE and other defenders of free speech on campus. In September 2007, FIRE submitted an amicus brief urging the court to reach the ruling it did today, joined by a remarkable coalition of allies, including the ACLU of Pennsylvania, the Christian Legal Society, Collegefreedom.org, Feminists for Free Expression, the Individual Rights Foundation, Students for Academic Freedom, and the Student Press Law Center.
We will have much more to say about the opinion in coming days, but here is an initial summary of the major points in the opinion.
The speech code under challenge in the case banned "all forms of sexual harassment" including "expressive, visual or physical conduct of a sexual or gender-motivated nature" whenever that conduct "has the purpose or effect of unreasonably interfering with an individual's work, educational purpose or status" or "creating an intimidating, hostile or offensive environment."
After establishing jurisdiction and that the case was not moot, the Third Circuit turned to the policy itself. The court laid out the First Amendment's overbreadth principle, which prevents states from passing laws that do not narrowly limit and define what speech is proscribed. Laws can be overbroad by explicitly covering speech that is protected by the First Amendment or by being so unclear that citizens are hesitant to speak out of a fear that their protected speech will be punished under the law.
The court rejected the notion that this principle might not apply to the university setting, writing, in contrast, that the university is "where free speech is of critical importance because it is the lifeblood of academic freedom." It then quoted the Supreme Court's Healy v. James opinion for the Court's clear summary of its own holdings, writing that "the precedents of the Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large."
In an important point, the court then noted that colleges are governed by different rules than secondary schools, so decisions concerning the secondary school environment do not directly govern cases occurring on the university campus. As college administrators and courts often fail to properly note the significant distinction between the university campus and secondary schools, the Third Circuit's firm articulation of this point is an excellent addition to the jurisprudence. The court wrote:
Discussion by adult students in a college classroom should not be restricted. Certain speech, however, which cannot be prohibited to adults may be prohibited to public elementary and high school students...public elementary and high school administrators have the unique responsibility to act in loco parentis... Temple administrators are granted less leeway in regulating student speech than elementary and high school administrators.
With this in mind, the court turned to the harassment policy, noting it would be held facially unconstitutional "only if no reasonable limiting construction is available that would render the policy constitutional." To the merits, the court first reaffirmed that there is no exception to the First Amendment for "harassing speech." It then held that on a university campus, "speech cannot be prohibited in the absence of a tenable threat of disruption."
Temple's harassment policy, the court found, has no constitutional interpretation. The court wrote that the language of the policy is unconstitutionally overbroad: "[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.' This could include ‘core' political and religious speech, such as gender politics and sexual morality." (Internal citations omitted.)
The court pointed out numerous other constitutional deficiencies in Temple's policy, such as the fact that it fails to limit the policy to harassing conduct that is objectively severe and pervasive, and that it impermissibly holds a putative harassing intention of a speaker sufficient as a violation of the policy.
This clear-sighted and much-needed opinion adds to the line of federal court decisions which have unanimously found that broad harassment policies such as Temple's are unconstitutional, for they chill and proscribe protected speech. We will have more analysis to come.
No Justice for DeJohn?
by: William Creeley, March 13, 2009
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 Mili tary 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 the History Department while he was serving his country abroad. Upon his return, Christian engaged in spirited political debate with Dr. Gregory Urwin, his professor in his Comparative History of Modern War class. 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 Dr. 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 Richard Immerman, Chair of Temple University's History Department, called Christian a "gnat," and is on record as writng to Urwin at the time that they hoped DeJohn 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 Dr. Andrew Isenberg in the department, the department 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 (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, readers 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 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.
William Creeley is the director of Legal and Public Advocacy with the Foundation for Individual Rights in Education (FIRE).