By Susan Brinkmann, OCDS
Staff Writer

A federal appeals court has found that the so-called “Speech Code” at a major University poses an unconstitutional restriction on the First Amendment rights of its students. The decision is expected to have a chilling effect on similar codes that remain in force on nearly three-quarters of the nation’s public universities.

The case involves a 36 year old graduate student, Christian DeJohn, a Sergeant in the Pennsylvania National Guard, who began attending graduate school at Temple University in 2002. He frequently spoke out in class against the anti-war rants of his college professors and pointed out similar biases in classroom material.

However, his graduate career was cut short when he was called into active duty in Bosnia, and was granted a leave of absence by the University.

While serving overseas, DeJohn began receiving anti-war e-mails from a professor in the department. He responded to these e-mails by asking if the Department was aware that even as antiwar demonstrations were being held, several Temple graduate students on active duty were risking their lives overseas.

“I also described some of the difficult conditions under which my fellow soldiers and I were serving in Bosnia, and some of the risks we faced, and I stated that I did not feel it was appropriate for the University to send such messages to Temple students serving overseas,” DeJohn said.

Much to his surprise, when he returned from duty the following year, he had received a form letter from the graduate records department notifying him that he was no longer a student in good standing and was dismissed from the University because he did not hold an approved, paid Leave of Absence.

DeJohn fought the school and was eventually readmitted, but this was only the beginning of his problems. Since his return, he has been incorrectly reported as defaulting on student loans, personally and professionally denigrated by professors during the evaluation of his thesis, and had his graduation delayed three times. In addition, the sergeant found his ability to share his political, religious, and culture views with others consistently chilled by the school’s “speech code.”

This code reads, in part, that “all forms of sexual harassment are prohibited, including … expressive, visual, or physical conduct of a sexual or gender-motivated nature, when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or … such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.”

Finally, he had enough, and in February, 2006, a lawsuit against Temple University was filed in the U.S. District Court for the Eastern District of Pennsylvania by attorneys from the Alliance Defense Fund (ADF) on his behalf. His 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 that restricted speech protected by the First Amendment.
 
His attorneys argued that the University’s harassment policy was so vaguely worded and so broad in its language that university administrators were essentially able to punish any sort of speech they deemed offensive. The court agreed and ruled in DeJohn’s favor, declaring Temple’s speech code, to be unconstitutional.

Even though Temple revised its code, the school still decided to appeal the ruling to the U.S. Court of Appeals for the Third Circuit, where it once again lost.

“ . . . Some speech that creates a ‘hostile or offensive environment’ may be protected speech under the First Amendment,” wrote Judge D. Brooks Smith in the August 4 ruling by the Third Circuit. “It is difficult to cabin this phrase, which could encompass any speech hat might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility.”

David Hacker, an attorney with the ADF who represented DeJohn, said the ruling represented an important triumph for free speech on university campuses.

“It’s really a significant victory for the free speech rights for Mr. DeJohn and all students at Temple University,” Mr. Hacker said. “The fact that he was courageous enough to challenge this policy and really take a stand for free-speech in general is a testament to his character and will serve as a precedent for years to come.”

Unfortunately, similar oppressive policies are still in force at about three-quarters of the nation’s public universities.
 
“Universities are supposed to be the marketplace of ideas.  But speech codes, like the one that was enforced at Temple, stifle student speech and really are a danger to Christian and conservative students on campus,” Mr. Hacker said.

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