On ‘Inside Higher Ed’, FIRE Lawyers Explain Why ‘DeJohn’ Was Correctly Decided
August 18, 2008
by Adam Kissel
Greg, Will, and Sam have published an analysis of the Third Circuit ruling in DeJohn v. Temple, which agreed with a federal district court in finding Temple University's sexual harassment policy unconstitutional. Their analysis makes clear that the ruling is fully within Supreme Court and Third Circuit precedent. This article ought to put to rest the arguments of some critics claiming that the Third Circuit decision was somehow "activist," "ominous," or political rather than fair, predictable, and correct.
One critic also challenged the decision by ignoring the importance of facial challenges to unconstitutional speech codes. But Greg, Will, and Sam make clear that a facial challenge exists to protect everyone who might suffer under a speech code from the "chilling effect" caused by the very existence of unconstitutional code.
A critic also complained that the Court took a cynical view of Temple's intentions, noting that Temple had already changed its policy before the ruling. But my colleagues point out:
Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if "it can be said with assurance that there is no reasonable expectation that the alleged violation will recur." Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.
This fear is well-founded in the case of Temple, and it reminds me of a 2008 speech code lawsuit at Shippensburg University (also in the Third Circuit), whose unconstitutional speech code was reinstated just a few years after Shippensburg agreed to repeal it.
Perhaps most importantly, my colleagues point out that the real activist judging in the case would have occurred if the Court had taken Temple's side and had permitted the very limited holding in Morse, a high school case, to be dramatically broadened to apply to college speech codes. Thankfully, the Court saw through that argument and stuck to some fifty years of established precedent regarding the speech rights of adult college students.