Third Circuit Lays to Rest a Dangerous Argument and Upholds Rights of College Students

Yesterday, the U.S. Court of Appeals for the Third Circuit issued an opinion in DeJohn v. Temple University holding that Temple's former sexual harassment policy was facially unconstitutional. In that opinion, the court laid to rest a dangerous argument made by Temple administrators: that the university's adult college students should have no greater free speech rights than students at public elementary and high schools.

In its brief to the Third Circuit, Temple relied heavily on the U.S. Supreme Court's decision in Morse v. Frederick (the "BONG HiTS 4 JESUS" case)—-in which the Supreme Court upheld the narrow right of high school administrators to regulate student speech "reasonably regarded as encouraging illegal drug use" —to argue that its sexual harassment policy did not violate college students' First Amendment rights.  Morse, Temple argued, gave the university broad discretion to restrict any "student's speech that is inconsistent with its ‘basic educational mission.'"

In our amicus brief in this case, FIRE argued that Morse and other decisions restricting the free speech rights of high school students were inapplicable to the college setting, both because of the differences between high school and college students and because of the differences in the nature and purpose of colleges and high schools. Noting that "while high school students are almost exclusively minors, college students are almost exclusively adults," we wrote that

Treating the First Amendment rights of high school students and university students as functionally equivalent...spurns established jurisprudence and infantilizes college students by fundamentally confusing the unique pedagogical necessities of education at the high school and college levels.

Given courts' increasing tendency to restrict the free speech rights of high school students, a decision equating the First Amendment rights of high school and college students would have been truly disastrous for campus speech. Thankfully, DeJohn v. Temple University is not such a decision. To the contrary, the Third Circuit disposed of Temple's argument in no uncertain terms, writing that

[T]here is a difference between the extent that a school may regulate student speech in a public university setting as opposed to that of a public elementary or high school...Temple's administrators are granted less leeway in regulating student speech than are public elementary or high school administrators. (Emphasis in original.)

College students in Pennsylvania, New Jersey, and Delaware—whose courts are bound by the decisions of the Third Circuit—can breathe a sigh of relief today that their First Amendment rights are in good stead. We must now hope that courts across the country follow suit and reject this increasingly common argument whenever it arises.