On Wednesday, Judge George A. King of the United States District Court for the Central District of California again rejected the Los Angeles Community College District’s arguments in favor of its speech code in Lopez v. Candaele, et al. The order denied the District’s motion asking the court to reconsider its previous ruling issuing a preliminary injunction against the District’s sexual harassment policies.
In his order, Judge King rejects every argument the District makes, devoting an entire section of the opinion to address what he calls the District’s “scattershot” and “disjointed” arguments with regard to the applicability of DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008):
Finally, Defendants criticize DeJohn as a singular case and not well reasoned. (Motion 14). We think that DeJohn is well reasoned. Moreover, Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn. To the contrary, the Third Circuit has rejected a substantially similar policy even in an elementary and high school setting. Saxe v. State College Area Sch. Dist., 240 F.3d 200, 216–17 (3d Cir. 2001). Thus, Defendants’ scattershot and disjointed arguments do not defeat the reasoning of DeJohn.
Astute observers will recall that DeJohn (which was litigated by ADF) is the leading case on speech codes and sexual harassment policies in the college setting. Yet the District argued that this opinion, which was applauded by free speech advocates like FIRE and Eugene Volokh, was “poorly reasoned.” The basis for this argument? Not conflicting case law from the Ninth Circuit—as a matter of fact, there is no conflicting case law whatsoever. (As Judge King pointed out, “Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn.”)
Nay, friends—the support for this argument came from the pen of a law student in a shockingly poorly written comment in the Harvard Law Review. Aside from the fact that the opinion of a law student carries infinitely less weight than a well-reasoned opinion from three federal appellate judges (at least on this planet), the comment manages to criticize DeJohn without citing any of the many cases striking down speech codes on college campuses across the country. Coming from such a respected publication, such shoddy scholarship obviously created quite a bit of controversy.
The comment itself has already been discredited by the legal community, and it was ripped to virtual shreds by Kelly Sarabyn of FIRE and our own David French. Now, with this latest opinion in Lopez, a federal judge has weighed in as well. Public universities may not like it, but DeJohn is here to stay. The District appealed the court’s ruling on the preliminary injunction to the Ninth Circuit, so if they continue to pursue the appeal in light of Judge King’s latest rejection of their position, we may get a chance to hear what the Ninth Circuit has to say about DeJohn. But given the force of case law behind the opinion and the strength of its reasoning, it’s hard to believe they will differ.