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The Third Circuit's decision in DeJohn v. Temple University is significant for many reasons, as we have explained in great detail on The Torch.

But there is another aspect of the decision which should not be overlooked: the court's unequivocal rejection of Temple's attempt to defend its sexual harassment policy on the grounds that the policy follows the Equal Employment Opportunity Commission's (EEOC's) guidelines for gender discrimination.

Among other things, the Third Circuit took issue with the language in Temple's policy defining sexual harassment as conduct which has the "purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or...creating an intimidating, hostile, or offensive environment" (emphasis added). With respect to the "purpose or effect" prong, the court observed that:

Under the language of Temple's Policy, a student who sets out to interfere with another student's work, educational performance, or status, or to create a hostile environment would be subject to sanctions regardless of whether these motives and actions had their intended effect.

The court held that by allowing a finding of sexual harassment on the basis alone of the alleged harasser's intentions, without regard to the actual impact of his or her conduct, the policy went against long-standing Supreme Court precedent holding that "a school must show that speech will cause actual, material disruption before prohibiting it." Moreover, it reasoned that the policy did not require a threshold showing of severity, pervasiveness, and objective offensiveness in the conduct involved, as required by the Supreme Court's seminal decision on sexual harassment in the educational context, Davis v. Monroe County, 526 U.S. 629 (1999). Thus, the court found that, lacking 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." Rather, the policy "could conceivably be applied to cover any speech of a gender-motivated nature the content of which offends someone" (internal quotations omitted). This rendered the policy fatally overbroad on its face.

Significantly, in attempting to defend its erstwhile policy, Temple argued that the policy language was similar to the language found in the EEOC guidelines for gender discrimination. The EEOC guidelines define sexual harassment as conduct which "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." A side-by-side comparison of the EEOC guidelines and Temple policy reveals that they are indeed almost identical. However, the EEOC guidelines apply to harassment in the workplace. Hence the focus on "work performance" and "working environment." The guidelines are not applicable in the educational setting, which differs tremendously from the employment context in terms of speech rights accorded as well as the respective missions of the institutions involved. As the Supreme Court famously declared, "[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.'" Healy v. James, 408 U.S. 169, 180 (1972). Students at public colleges and universities enjoy robust speech rights under the Constitution, in order to contribute to the marketplace of ideas, learn from each other, and freely discuss and debate a wide range of issues. The same is not true for employees in a workplace, particularly a private workplace, who are subject to the restrictions of their employer.

Nonetheless, Temple asserted that because its policy tracked EEOC language, its "use of the terms ‘purpose' or ‘effect' has a specific meaning" which saved the policy from constitutional deficiency. In response, the court wrote, "Temple fails to explain how that makes the ‘specific meaning' constitutionally permissible." In other words, simply pointing to the EEOC guidelines did not address the policy's doctrinal flaws in any way. The court noted that the university had cited only one case in support of its assertion that federal courts had on numerous occasions recognized the validity of the EEOC standard for sexual harassment. Moreover, that case did not take a stand on the constitutionality of the EEOC language, but rather cited it "generally for the proposition that ‘[t]here is a well-defined and dominant public policy concerning sexual harassment in the workplace'" (internal citations omitted) (emphasis in original).

Therefore, the Third Circuit held that the Temple policy could not be saved from constitutional deficiency merely by pointing to its similarity to the EEOC language. This is a significant statement from a federal circuit court, one which should demonstrate to public colleges and universities once and for all that it is simply impermissible for institutions of higher education to restrict student speech rights by borrowing from harassment standards developed for the workplace. Those standards fail to provide the necessary breathing room for campus speech. Hopefully, the DeJohn decision will have the effect of deterring schools from tracking the EEOC guidelines in their respective harassment policies. The result would be a boost for student speech rights on campus.