Court affirms reasoning of DeJohn once again

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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.

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5 Responses to “Court affirms reasoning of DeJohn once again”

  1. ADF Alliance Alert » David French: Did the Harvard Law Review just get a black eye? Says:

    […] links to Heather Hacker’s ADF Center for Academic Freedom post on the case: “Court affirms reasoning of DeJohn once again.” An excerpt: Aside from the fact that the opinion of a law student carries infinitely less […]

  2. Christian DeJohn Says:

    On This Independence Day, Sgt. DeJohn Still
    Waiting for Fair Treatment from Temple

    July 2, 2009
    by William Creeley, Foundation for Individual Rights in Education

    This Saturday, Americans will celebrate the 233rd anniversary of our declaration of independence. With our nation presently fighting two wars abroad, this year’s Independence Day reminds us again that the brave men and women of our armed forces make unimaginable sacrifices every day in defense of our constitutional freedoms.

    It’s fitting, therefore, to inform Torch readers that this Sunday, Sergeant Christian DeJohn of Wyncote, Pennsylvania, will return to active duty for the Army. One day after the Fourth’s fireworks, Christian will be heading out on active duty to the National Training Center in Fort Irwin, California, right smack in the middle of the Mojave Desert. When he arrives, Christian will be greeted by 100-degree heat, 100 pounds of gear and body armor, and several weeks of very intense desert training.

    But Christian is used to enduring hardships for the constitutional freedoms of both himself and others. Indeed, the name “DeJohn” should be familiar to anyone with an interest in free speech on campus. As FIRE supporters no doubt recall, Christian brought a successful suit against Temple University, where he was and is still a graduate student, which resulted in the United States Court of Appeals for the Third Circuit striking down Temple’s former sexual harassment policy on First Amendment grounds last fall.

    The Third Circuit’s landmark ruling in DeJohn v. Temple University made clear that the free speech rights of students at public universities in Delaware, New Jersey, and Pennsylvania cannot be abrogated by poorly-written speech codes. As such, it was a resounding victory for free speech on campus, and we have Christian to thank. Without his courage, unconstitutional policies would still be on the books.

    Unfortunately, Christian’s “reward” for his victory has been bitter indeed. As I described at length back in March, Christian has been in an uncomfortable academic limbo following the Third Circuit’s decision. I urge you to read the ugly details in full, but here’s the bottom line: Despite obtaining each of the 26 credits necessary for his master’s degree and maintaining a GPA of 3.2, Temple’s History Department has refused to grant Christian an honest review of his master’s thesis.

    That’s right: After filing his lawsuit against Temple, Christian’s progress towards his degree has been completely stonewalled by a school with an axe to grind. He’s done everything required but finish his master’s thesis, and he can’t do that because no professor will review it. Obviously, this leaves Christian in an unbelievably frustrating position. And all for standing up for his First Amendment rights. If it sounds unfair, that’s because it is. Temple should be ashamed.

    Since my entry about Christian’s dilemma was posted back in March, there has been a small but promising sign that Temple may be coming around. In response to an e-mail query, Provost Lisa Staiano-Coico’s office informed Christian last week that they are reviewing his situation, and that they plan on being in touch in the next several weeks.

    While this small note is far from a guarantee, there’s no choice but to hope that Temple decides to proceed in good faith. It goes without saying that Temple should do the right thing and establish a clear path for Christian to complete his degree, free from lingering faculty animus and petty persecution. Christian deserves to be treated fairly, like any other student. To single Christian out and prevent him from obtaining his degree because of his willingness to go to court on behalf of the First Amendment is just plain wrong.

    So here’s hoping that Christian receives good news from the Provost’s office while he’s in California, sweating it out under the desert sun.

    Until then, he’s still waiting. And so are we.

  3. Christian DeJohn Says:

    A Temple Alum Reacts to DeJohn’s Dilemma

    by William Creeley, Foundation for Individual Rights in Education
    July 6, 2009

    This past weekend, FIRE supporter Kenneth H. Ryesky took particular interest in our recent update on Sgt. Christian DeJohn’s unfortunate situation. As a graduate of what is now Temple University’s Fox School of Business, Ryesky was disappointed to learn that his alma mater has as of yet failed to address the academic limbo in which Christian now finds himself stranded. In response, Ryesky—a practicing attorney—decided to pen a letter to Temple President Ann Weaver Hart, urging her to do the right thing and ensure that Christian’s thesis receives an honest review on the merits.

    With his gracious permission, we’re pleased to be able to share Mr. Ryesky’s letter here on The Torch.

    TO: Ann Weaver Hart, President, Temple University

    Re: Sgt. Christian DeJohn

    Dear President Hart:

    If there is one word that is inextricably associated with Temple University, it is “diversity.” Temple’s cultural diversity is used in Temple’s promotional literature, you yourself do not hesitate to tout the cultural diversity of the Temple community in your speeches, and I myself have spotlighted Temple’s cultural diversity when participating at several Temple student recruitment functions in the New York City area over the years.

    Temple’s diversity is special because it goes beyond comparing the student body to a color chart such as those commonly available in the paint section of the hardware store — Temple’s diversity has also been diversity of ideas and diversity of thought. And freedom of expression has always played a key role in Temple’s diversity of ideas and thought. During both of my stints as a Temple student, there always was a diverse spectrum of ideas presented in the classrooms, and in the halls, and on the streets and walkways of the Temple University campuses. Notwithstanding my frequent disagreement with many of the positions presented, I consider this diversity to be one of Temple’s great strengths.

    As matters currently stand, Temple University now gives the appearance that it is retaliating against Sgt. Christian DeJohn for asserting his rights of free expression. This is certainly an impression that Temple ought not allow itself to make to the world, for it is diametrically at odds with Temple’s diversity. Sgt. DeJohn’s course work should be fairly and objectively evaluated on its merits, in a matter which does not give the appearance of any improper bias, and by the same impartial standards merited by the course work of any other student.

    As a Management major at what is now Temple’s Fox School of Business, I was taught the principles of Management by Exception, which essentially means that managers should allow organizations to function normally unless and until an exception occurs where the organization’s routine functions fail to adequately handle a given case. At that point, management must intervene to redirect the organization to the appropriate courses of action.

    As you and I know, the great bureaucracy that is Temple University occasionally functions inefficiently, occasionally requires regrouping time in order to correct its dysfunctions, and occasionally requires attention and intervention from the higher echelons. In other words, Temple, like other large organizations, requires Management by Exception.

    Given that Temple’s routine handling of Sgt. DeJohn’s situation has in fact gotten to a point which has necessitated intervention by an outside authority (and an appellate-level judicial authority at that), perhaps some specific attention from Sullivan Hall is now warranted, to ensure the proper handling by the University of a student who obviously is intelligent, motivated, and likely destined for future achievement.

    At stake is more than Sgt. DeJohn’s personal career. At stake is Temple’s essential core attribute of diversity.

    Yours very truly,

    Kenneth H. Ryesky, Esq.

    BBA 1977, JD 1986

    I know I speak for both Christian and all of us here at FIRE in thanking Mr. Ryesky for his eloquent support—indeed, letters from citizens like him help FIRE secure favorable outcomes for the students and faculty we assist at our nation’s universities. We rely on concerned alumni, parents, trustees, donors, and citizens who have both the common sense to recognize when universities mistreat members of their community and the courage to stand up and tell those in power that such behavior is entirely unacceptable.

    While Christian, now training in the Mojave Desert, waits for word from Temple’s Provost regarding the status of his thesis review, it’s encouraging to recognize that many Torch readers stand in support.

  4. Christian DeJohn Says:

    No Justice for DeJohn

    by William Creeley,
    Foundation for Individual Rights in Education
    March 13, 2009

    This morning, in a federal courtroom a few blocks from FIRE’s Philadelphia headquarters, the landmark case of DeJohn v. Temple University neared its long-awaited completion.

    This may come as a surprise to Torch readers, who understandably might have assumed that DeJohn had been decisively concluded back in August of 2008, when the United States Court of Appeals for the Third Circuit issued a precedential ruling declaring Temple University’s former sexual harassment policy to be unconstitutional. But unfinished business remained: namely, determining the precise amount of attorney’s fees Temple must now pay, with taxpayer money, to student Christian DeJohn’s lawyers. Being on the losing side in this litigation, Temple must pony up, and today’s hearing seeks to set the rate at which DeJohn’s lawyers will be compensated. For comparison, note that Georgia Tech was ordered to pay over $200,000 for violating its students’ freedom of religion.

    Thus, shortly after today DeJohn will have likely reached its legal conclusion. But the case’s namesake —Sergeant Christian DeJohn of Wyncote, Pennsylvania, a student in Temple University’s Master of Arts in Military and American History program and a member of the Pennsylvania Army National Guard —will still be suffering.

    That’s because Christian’s bravery in standing up for his First Amendment rights has exacted a clear toll from him, both personally and professionally. As a direct result of his stand against Temple’s unconstitutional speech code, Christian is currently stranded in academic limbo. Despite having completed all necessary coursework towards obtaining his master’s degree —the full 26 credits, with a 3.2 GPA to boot —Christian’s progress towards receiving his degree screeched to a halt shortly after he filed his lawsuit against Temple. Since filing it, Christian can’t get an honest review of his completed thesis from anyone in Temple’s History Department, leaving him high and dry.

    We’ve covered the exceedingly unprofessional treatment Christian received from his professors in this space before, but a quick review is in order to understand exactly how Christian got stuck in this situation.

    After serving overseas in Bosnia-Herzegovina, where he suffered disabling hearing loss, Christian returned to his studies at Temple in 2003. At this point, Christian’s professors were aware of his conservative political views, for Christian had asked not to receive the anti-war e-mails being sent around the History Department while he was serving his country abroad. Upon his return, Christian engaged in spirited political debate with his professor in his Comparative History of Modern War class. This kind of intellectual exchange is precisely what colleges are for, but Christian was quickly marked by his professors for his political views.

    Soon enough, Christian suffered what seemed like obvious retaliation for daring to voice his feelings on controversial topics in class. Specifically, his master’s thesis was trashed by the professor assigned to review it. Although FIRE, like the courts, does not typically weigh in on grade disputes, given the highly specialized expertise required to properl y adjudicate the merits of competing grade claims, it is difficult not to see the incredibly unprofessional and nasty comments prompted by Christian’s thesis as anything other than evidence of personal animus. Read Christian’s complaint and judge for yourself:

    [Professor Urwin] commented that the thesis was “agonizing” and that DeJohn must suffer from “Alzheimer’s disease.” Urwin also wrote notes in the margins of DeJohn’s thesis. He wrote that DeJohn sounds like a “crackpot,” that his arguments are “absurd,” that the thesis read like “a comic book for 5-year olds,” that it was “amateurish,” that it was “exaggerated melodrama,” “juvenile melodrama,” and “juvenile rhetoric,” “monotonous agony,” “juvenile argumentation,” a “hissy fit in print.”

    Professor Richard Immerman called Christian a “gnat,” and his professors are on record as saying at the time that they hoped he would “self-destruct.” Again, it’s difficult to see how mean-spirited comments like that could be considered as constructive criticism, academically speaking. At any rate, Christian filed his complaint, which included both a retaliation charge, based on evidence like that excerpted above, and a First Amendment challenge to Temple’s sexual-harassment policy.

    As Christian’s case proceeded, the district court ended up dismissing Christian’s retaliation claims. Despite the fact that the presiding judge indicated orally that it certainly seemed as though the judgment of Christian’s paper was politically motivated, and a court order notes that “[i]t is indisputable that, between November, 2001 and August, 2003, something happened that significantly altered Prof. Gregory Urwin’s appraisal of Christian DeJohn,” the lower court eventually found that the law on retaliation in this circumstance was not clearly established enough to pierce the professor’s qualified immunity defense. As such, the retaliation claims were dismissed.

    So while the speech code challenge proceeded to the Third Circuit, resulting in the landmark decision that now bears his name, Christian’s academic progress has consequently been completely stonewalled. At present, Christian probably cannot secure an honest review of his thesis from any faculty member in Temple’s History Department. After he submitted a revised thesis to a new professor in the department put in charge of reviewing the thesis, the professor refused to review it.

    This is appalling, but because of his willingness to take a public stand to defend the right to speak one’s mind at a public university, Christian now finds himself essentially unable to complete his degree.

    Needless to say, Christian is frustrated —and justifiably so. He wrote me yesterday, on the eve of today’s hearing about attorney’s fees:

    Nutty situation, huh? The “losing” attorney, Joe Tucker (who is on retainer with Temple at taxpayer expense and gets paid either way) may get who knows, $300,000 for all his work on this, while the prevailing party that took a stand for academic freedom is left with…

    – no prospect of an MA degree (at least at Temple),

    – $50,000 in student loans,

    – personal credit destroyed by Temple through a “computer error,”

    – character assassination by Temple in the media,

    – a mere $1 “symbolic victory,”

    – and, six years into the case, zero accountability or resolution from Temple’s President Ann Weaver Hart (who has been ducking me and the media from the start) and her employees who created the mess.

    And the kicker? This persecution of a student and veteran with the audacity to actually exercise his First Amendment rights is being funded by the Commonwealth of Pennsylvania’s taxpayers, who are unknowingly footing the bill, since all this is occurring at a state-funded school.

    Of course I’m not the most neutral observer in all this, but consider how this would influence students considering taking a stand in the future – as things are right now, if this is what happens to the “winner” when a student speaks up for free speech, after hearing of our outcome, what young college students would be willing to fight? That’s why I’m fighting on for accountability from FIRE’s old friend President Hart, et al.

    Hard to blame Christian for being at his wits’ end.

    (Incidentally, Christian calls Temple President Ann Weaver Hart “FIRE’s old friend” because, in an ironic twist, Hart was President of the University of New Hampshire at the time of FIRE’s infamous “Freshman Fifteen” case. That’s the one in which student Tim Garneau was kicked out of student housing —and was stuck living in his car while the case was resolved —after he posted fliers that joked freshman women could lose the “Freshman Fifteen” by walking up the dormitory stairs instead of taking the elevator.)

    The bottom line is that Christian should have had his degree years ago and should have been given a chance to resume normal academic progress. Were it not for speaking his mind, Christian could have sailed through like any other student. Maybe he could have even obtained a doctorate by now! Instead, Christian went to court to defend not only his own right to free speech, but also the rights of his fellow Temple students. Indeed, because of the precedential ruling handed down in his case by the Third Circuit, Christian’s personal bravery means that students at every public institution in New Jersey, Pennsylvania, and Delaware are that much freer to engage in protected speech on campus without fear of punishment via unconstitutional speech codes.

    But no good deed goes unpunished, they say, and Christian’s shameful treatment at the hands of Temple University confirms this bitter maxim.

    However, supporters can still make a difference for Christian, just as Christian has done for his fellow students.

    As Christian’s legal case comes to a close, I ask that readers who would like to see Temple do right by Christian take the time to write President Hart a brief note, politely asking that Temple’s History Department grant Christian DeJohn’s thesis a review by an objective, third-party panel. Giving Christian’s thesis a fair hearing would be the honorable thing for Temple to do.

    William Creeley is the director of Legal and Public Advocacy with the Foundation for Individual Rights in Education (FIRE).

  5. Gary Arctic Says:

    You need to write daily you do a good job

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