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Monday, August 04, 2008

Third Circuit rules university sexual harassment policy unconstitutional
Deirdre Jurand at 2:05 PM ET

[JURIST] The US Court of Appeals for the Third Circuit ruled [opinion, PDF] Monday that a former Temple University [official website] sexual harassment policy was unconstitutionally broad and violated the freedom of expression of graduate student Christian DeJohn [case fact sheet, PDF]. DeJohn submitted his complaint [text, PDF] against the university in February 2006, alleging that the school's policy had prevented him from expressing his views against women in combat. He charged that the policy was "vague, overbroad, and suppresse[d] the discussion of controversial viewpoints" and sought an injunction against its use or enforcement.  Upholding a lower court's ruling [opinion, PDF] that even though Temple had sufficiently narrowed its policy, it was facially unconstitutional, the court wrote:

Under the Temple Policy the following elements, if present, constitute sexual harassment: (1) expressive, visual or physical conduct (2) of a sexual or gender-motivated nature and which (3) has the purpose or effect of either (3a) unreasonably interfering with an individual’s work, educational performance, or status, or (3b) creating an intimidating, hostile, or offensive environment...

...The policy’s use of "hostile," "offensive," and "gender-motivated' is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality. Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech. [Citations omitted]
The court also found that the school's continued defense of its old policy and the timing of the enactment of its new policy [text, PDF] suggested that without an injunction, the school might reimplement the older rule. DeJohn had also initially accused the school and its professors of breach of contract, conspiracy and violations of Pennsylvania code with respect to his Master's degree work, but the District Court dismissed those claims [opinion, PDF] in 2006.





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