After attending yesterday’s oral arguments in DeJohn v. Temple University, I came to the conclusion that one thing was clear: Temple University is not interested in arguing this case on the merits.
Joe H. Tucker, Jr., counsel for Temple, focused a large part of the school’s case on whether or not Christian DeJohn was a Temple student and had standing to sue in the first place. He even began his time before the three-judge panel by saying that Temple was resting on the issue of mootness and that there was “no need to consider the constitutionality” of the policy.
He also maintained that the school’s sexual harassment policy was not a speech code and that Temple has a long history of allowing free speech, even while keeping its former sexual harassment policy on the books.
Universities seem to think this line never gets old. Temple is a public university and is required to uphold the First Amendment. As such, any unconstitutional policy on its books is just that—unconstitutional! Yet this “the policy isn’t unconstitutional if it’s never used” argument is a classic one that university administrators pull out of their bag of tricks from time to time to escape criticism for speech codes. “Oh, we would never punish someone under that policy!” and “Don’t worry- we never enforce that particular rule!” are comebacks FIRE has heard before as universities try to avoid public scrutiny and liability in speech codes cases. But public universities need to understand one crucial point—maintaining the policy in and of itself, whether it is actually enforced or not, is a violation of the rights of its students and faculty. Keeping these policies opens schools up to facial challenges like the one Christian DeJohn brought against Temple.
For more information on FIRE’s involvement in this case, read our amicus curiae brief that we filed in conjunction with the ACLU of Pennsylvania, the Christian Legal Society, Collegefreedom.org, Feminists for Free Expression, the Individual Rights Foundation, Students for Academic Freedom, and the Student Press Law Center.
Check back on The Torch for more updates on this case as we report on developments.