FIRE Files Brief Opposing Unconstitutional Speech Code at Temple University

PHILADELPHIA, September 4, 2007—Today, the Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief urging the United States Court of Appeals for the Third Circuit to uphold a decision by a lower court that Temple University’s former speech code is unconstitutional. Temple’s code prohibited, among other things, “generalized sexist remarks and behavior.”

The lawsuit against Temple University was filed in the U.S. District Court for the Eastern District of Pennsylvania in February 2006 by attorneys from the Alliance Defense Fund (ADF) on behalf of Temple student Christian DeJohn. DeJohn’s complaint alleged both that Temple had engaged in actions that violated his rights and that Temple was violating the free speech rights of all of its students by maintaining an unconstitutional speech code. Temple actually revised its speech code during the course of the lawsuit, but in its appeal to the Third Circuit, it contends that its original policy was constitutional despite the District Court’s holding to the contrary.

“Since the 1980s, universities have tried to disguise unconstitutional speech codes as ‘harassment’ policies, but thankfully, courts have struck down such policies for decades,” FIRE President Greg Lukianoff said. “The continuing existence of unconstitutional speech codes at most colleges in the country is a national scandal. We urge the Court of Appeals to uphold the decision against Temple’s speech code and to continue to send the message to campuses that speech codes at public colleges flatly violate the First Amendment.”

FIRE’s amicus brief was joined by a remarkable coalition of organizations 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. The coalition was represented in the filing by attorney L. Theodore Hoppe, Jr.

In DeJohn v. Temple University, the District Court declared Temple University’s former speech code unconstitutional. On appeal, Temple is arguing that the Supreme Court’s recent ruling in Morse v. Frederick—a decision upholding the narrow right of high school administrators to regulate student speech “reasonably regarded as encouraging illegal drug use”—permits Temple to place broad and onerous restrictions on the free speech rights of college students.

FIRE’s brief argues that Temple’s policy contradicts both decades of legal precedent and the guidance of the federal Department of Education’s Office for Civil Rights, which is responsible for enforcing harassment laws on campus. If Temple’s policy were permitted to stand, it would gravely endanger the free speech rights of Temple students and exacerbate the existing free speech crisis on America’s college campuses.

“University administrations are increasingly trying to blur the vital distinction between the rights of university students and the rights of students in high school and below,” Lukianoff said. “It is simply unconscionable to treat university students—whose ages can range from eighteen to eighty, and almost all of whom can vote and serve our nation in war—as having no greater free speech rights than high school students. If the precedents which now so weakly protect the rights of high school students are suddenly applied to the university environment, campus free speech and academic freedom would be in serious jeopardy.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:
Greg Lukianoff, President, FIRE: 215-717-3473; greg_lukianoff@thefire.org
Samantha Harris, Director of Legal and Public Advocacy, FIRE: 215-717-3473; samantha@thefire.org