A Revolutionary Shift in Campus Speech Code Legal Interpretation
Today, the 3rd Circuit Court of Appeals ruled in the DeJohn case that Temple University's former sexual harassment restricted constitutionally-protected free speech.
FIRE has a lot more about this case, and Collegefreedom.org had joined FIRE's amicus brief in the case.
This decision has revolutionary potential to transform conduct codes on college campuses. By allowing lawsuits to succeed on a facial challenge for overbreadth, the court dramatically lowers the barrier to litigation. Normally, you need to find a student who has faced an unjust punishment. That's rare, and such students are often unwilling to go public. Even when they do, the students rarely win. In DeJohn's case at Temple, his claims of discrimination were rejected, while the facial challenge to the sexual harassment code, something just tossed into the lawsuit, proved successful.
Now, all you need (at least in the Third Circuit, which covers Pennsylvania, New Jersey, and Delaware), is one litigant (say, a pre-law student trying to look good when applying to law school) and a cookie-cutter lawsuit copied from one school to another, and every public college in the Third Circuit (and perhaps beyond) can be sued with minimal money and effort.
This may seem like a litigation nightmare for colleges, but it's an issue where they should have been working to improve their campus codes.
Although the code in this case dealt with sexual harassment, there's no reason why other kind of campus codes would not subject to the same facial objections. And in my study of speech codes in my book Patriotic Correctness, I note that I have yet to find a college that doesn't have an overbroad provision that wrongly restricts free speech.
There is one disturbing part of the court's ruling in this case. The judge asserts that even the EEOC wording about harassment might not pass constitutional scrutiny. That's disturbing, especially because FIRE has been urging colleges to adopt this language for their sexual harassment policies. If EEOC wording, which has been in effect for decades, doesn't meet constitutional requirements, then what does? Let's hope that courts don't open that Pandora's Box.
So what should colleges do? My advice is this:
1) change your sexual harassment policy to match EEOC wording.
2)examine the entire student conduct code (and residence hall and other codes) to ensure that they don't restrict free speech.
3)Create a specific policy embracing academic freedom and free speech on campus
4)Utilize education and guidance (while specifically noting that these are not enforceable codes) to try prevent harassment and other unwanted behavior.
Before the DeJohn case, these were all good ideas that colleges largely ignored. Now, they ignore these changes at their peril.