DeJohn v. Temple: 'Activist Judging'?

Professor Jon B. Gould has been a consistent critic of FIRE; indeed, last year he called for the dissolution of FIRE in a screed we thoroughly debunked in this space. Therefore it is unsurprising that in an article last week in The Chronicle of Higher Education (subscription required), Gould dismisses the Third Circuit's opinion in DeJohn v. Temple University as "activist judging." Although Gould (surprisingly) acknowledges that "the policy did overstep constitutional bounds," he calls the opinion "politically tinged" and questions why the court would "rule on an inactive policy."

The answer to Gould's question is patently obvious: In its briefing on appeal, Temple argued vehemently for the constitutionality of its former policy. Is it any wonder, then, that the Third Circuit believed that Temple might reinstate the policy if the court did not rule on its constitutionality? As the Third Circuit noted in its opinion, the U.S. Supreme Court has held that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." Only if "it can be said with assurance that there is no reasonable expectation...that the alleged violation will recur" does the case become moot.  Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (internal citations omitted).

Why did Temple expend so much time and money (lawyers don't come cheap) arguing for the constitutionality of a policy that it voluntarily withdrew during the course of the litigation? I believe Temple did so because in the time between the District Court's March 2007 decision and Temple's July 2007 deadline to file an appellate brief, the U.S. Supreme Court decided Morse v. Frederick, and Temple hoped that the Third Circuit would find that, in light of Morse, the old sexual harassment policy was now permissible and could be reinstated. Indeed, Temple relied heavily on Morse in its appellate brief, arguing that the Third Circuit should apply Morse-which restricted the free speech rights of high school students-to allow a university to restrict any "student's speech that is inconsistent with its ‘basic educational mission.'"

Joe H. Tucker Jr., an attorney for Temple, told the Chronicle that "[t]he Third Circuit took a very cynical view of Temple" by assuming that the university might reinstate its policy. I don't think so. Rather, I would be willing to bet that Temple would have preferred a Third Circuit decision holding that Morse was applicable on college campuses to a decision holding that Christian DeJohn's claims were moot. The Third Circuit's view of Temple in this case was not cynical but rather was entirely realistic, and to argue otherwise in the face not only of Temple's continued defense of its policy, but of its appeal to the court to break new legal ground by applying Morse in the university setting, is wholly disingenuous.