Tuesday, August 5, 2008

Onward Christian Soldier

Via Inside Higher Ed, the Third Circuit of the U.S. Court of Appeals ruled (pdf) yesterday that Temple Univesity’s sexual harassment policy, which was replaced in January 2007 with a newer, narrower one, was unconstitutional. Christian DeJohn, a former masters student at Temple who was also enlisted in the Pennsylvania Army National Guard, claimed that the policy was “overbroad” because he felt “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, we need to make sure he has a safe space to spew his sexist rants about how women can’t fight. The policy, which was changed between the original lawsuit ruling and the appeal, originally read like this:

[A]ll forms of sexual harassment are prohibited, including . . . expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . (c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.

DeJohn was awarded a whole $1 in nominal damages for his troubles. It doesn’t sound like DeJohn is really out anything because he got legal aid from Alliance Defense Fund’s Center for Academic Freedom–an organization that “help[s] you know and understand your rights as a Christian college student.”

But the dude just sounds like he has a giant chip on his shoulder. He’s also a big fan of lawsuits. In addition to the sexual harassment component of the suit, he claimed Temple didn’t let him complete his master’s program and therefore didn’t hire him as a historian. The court ruled against him on this point. DeJohn also sued the U.S. Army in a separate lawsuit for discriminating because they didn’t hire him for a job as a military historian (a job one presumably also needs a master’s degree for) because he was a veteran.

The ruling could impact non-discrimination policies at other universities in Pennsylvania, New Jersey, and Delaware, all of which are in the Third Circuit Court’s jurisdiction. It’s unclear whether other colleges will voluntarily loosen their non-discrimination policies or face lawsuits that could be inspired by the court’s ruling.

Cross posted at Pushback.

5 comments:

Tankercmd said...

Victory for Free Speech in DeJohn v. Temple
by Kelly Sarabyn


August 4, 2008

The Third Circuit Court of Appeals filed an opinion today in DeJohn v. Temple University, et al. The opinion provides an eloquent defense of free speech rights on university campuses and concludes with an unambiguous finding that Temple's speech code is facially unconstitutional.

Today's ruling is a great victory for Sergeant Christian DeJohn, the Temple master's student and member of the Pennsylvania Army National Guard who brought the challenge to Temple's speech code. Christian's willingness to take a stand for his First Amendment right to free expression is a commendable act of bravery-perhaps no surprise, coming as it does from a young man who has served his country in Bosnia-Herzegovina (where he suffered disabling hearing loss), Egypt, and Korea.

It's also a victory for FIRE and other defenders of free speech on campus. In September 2007, FIRE submitted an amicus brief urging the court to reach the ruling it did today, joined by a remarkable coalition of allies, including 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.

We will have much more to say about the opinion in coming days, but here is an initial summary of the major points in the opinion.

The speech code under challenge in the case banned "all forms of sexual harassment" including "expressive, visual or physical conduct of a sexual or gender-motivated nature" whenever that conduct "has the purpose or effect of unreasonably interfering with an individual's work, educational purpose or status" or "creating an intimidating, hostile or offensive environment."

After establishing jurisdiction and that the case was not moot, the Third Circuit turned to the policy itself. The court laid out the First Amendment's overbreadth principle, which prevents states from passing laws that do not narrowly limit and define what speech is proscribed. Laws can be overbroad by explicitly covering speech that is protected by the First Amendment or by being so unclear that citizens are hesitant to speak out of a fear that their protected speech will be punished under the law.

The court rejected the notion that this principle might not apply to the university setting, writing, in contrast, that the university is "where free speech is of critical importance because it is the lifeblood of academic freedom." It then quoted the Supreme Court's Healy v. James opinion for the Court's clear summary of its own holdings, writing that "the precedents of the Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large."

In an important point, the court then noted that colleges are governed by different rules than secondary schools, so decisions concerning the secondary school environment do not directly govern cases occurring on the university campus. As college administrators and courts often fail to properly note the significant distinction between the university campus and secondary schools, the Third Circuit's firm articulation of this point is an excellent addition to the jurisprudence. The court wrote:

Discussion by adult students in a college classroom should not be restricted. Certain speech, however, which cannot be prohibited to adults may be prohibited to public elementary and high school students...public elementary and high school administrators have the unique responsibility to act in loco parentis... Temple administrators are granted less leeway in regulating student speech than elementary and high school administrators.

With this in mind, the court turned to the harassment policy, noting it would be held facially unconstitutional "only if no reasonable limiting construction is available that would render the policy constitutional." To the merits, the court first reaffirmed that there is no exception to the First Amendment for "harassing speech." It then held that on a university campus, "speech cannot be prohibited in the absence of a tenable threat of disruption."

Temple's harassment policy, the court found, has no constitutional interpretation. The court wrote that the language of the policy is unconstitutionally overbroad: "[t]he 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." (Internal citations omitted.)

The court pointed out numerous other constitutional deficiencies in Temple's policy, such as the fact that it fails to limit the policy to harassing conduct that is objectively severe and pervasive, and that it impermissibly holds a putative harassing intention of a speaker sufficient as a violation of the policy.

This clear-sighted and much-needed opinion adds to the line of federal court decisions which have unanimously found that broad harassment policies such as Temple's are unconstitutional, for they chill and proscribe protected speech. We will have more analysis to come.

Tankercmd said...

The Court Got It Right
By William Creeley, Samantha Harris and Greg Lukianoff

This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong — and it’s important for both students and university administrators to understand why.

In February of 2006, Christian DeJohn filed a complaint in federal district court alleging that Temple had violated his First Amendment rights by punishing him for political expression. Among other serious allegations, DeJohn’s complaint charged that Temple’s sexual harassment policy (which, for example, prohibited “generalized sexist remarks”) violated his First Amendment right to free expression. DeJohn asserted that he felt inhibited from discussing his views on the role of women in the military, among other issues, and worried that he could be punished under Temple’s policy for expressing his opinions.

Seeking to obviate DeJohn’s First Amendment challenges, Temple revised its sexual harassment policy in 2007 by scrapping the sections of its policy at issue before the district court. Having done so, Temple asked the court to dismiss the portion of DeJohn’s complaint that related to the sexual harassment policy. However, the district court denied Temple’s motion, arguing that nothing prevented Temple from reinstituting the original policy following the conclusion of DeJohn’s suit. In March 2007, the district court found Temple’s now-abandoned sexual harassment policy to be unconstitutional on its face and issued an injunction against its enforcement.

Temple appealed the district court’s ruling to the Third Circuit in April 2007. This month, the Third Circuit ruled in favor of DeJohn, concluding that Temple’s former sexual harassment policy was unconstitutionally overbroad and affirming the lower court’s holding. Explaining that “[d]iscussion by adult students in a college classroom should not be restricted,” the court found that Temple’s former policy prohibited constitutionally protected speech and was therefore unacceptably overbroad.

Some critics of the opinion argue that the court should have found DeJohn’s claims moot since the university voluntarily revised the policy before the appeal was heard. But in the opinion, the Third Circuit rejected the mootness argument. Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.” Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple’s campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.

Indeed, Temple’s brief on appeal argued vehemently for the constitutionality of its former policy. Temple’s aggressive defense of its policy was fueled by outside events: between the time the District Court found the policy unconstitutional and the Third Circuit was to hear the appeal, the U.S. Supreme Court issued a significant decision that Temple hoped would change the outcome of its case.

In Morse v. Frederick, decided in June 2007, the Supreme Court held that a public high school did not violate the First Amendment in suspending a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. In their appellate brief, Temple seized on Morse and sought to expand its holding. Temple contended that Morse granted public colleges broad authority to restrict the speech of adult college students in the same way that high schools could regulate the speech of their students (who are generally under 18) — an expansion particularly threatening to free speech and academic freedom on college campuses. As a result, Temple argued, its sexual harassment policy was acceptable in the post-Morse environment.

Given Temple’s argument that its sexual harassment policy was constitutionally permissible in light of new legal precedent, it is not surprising — and hardly a mark of activism — that the Third Circuit felt compelled to issue a decision on the case. But in reaching its decision on mootness, the Third Circuit did not fashion new legal principles out of whole cloth. Rather, the court followed the explicit guidance of its own precedent — which, as the opinion notes, “articulate[s] the burden for the party alleging mootness as “‘heavy,’ even ‘formidable.’” Indeed, every aspect of the Third Circuit’s decision relies heavily on appropriate precedent, whether from its own appellate decisions or those of the Supreme Court. If anything, Temple’s brief argued for the more “activist” outcome by claiming that the Supreme Court’s narrow holding concerning high school students in Morse could be used to justify maintaining an overbroad speech code in the collegiate setting. Had the Third Circuit applied a high school case like Morse to colleges and universities, the resulting opinion would have represented a sea change in our legal thinking about college students’ rights, opening the door to the wholesale evisceration of free expression on campus.

Not only is the Third Circuit’s ruling in DeJohn not “activist,” it is not political, as some have charged. DeJohn is squarely in line with 50 years of Supreme Court decisions placing special emphasis on the importance of free speech in higher education, as well as two decades of district court decisions uniformly ruling that at public colleges, speech codes (often masquerading as anti-harassment policies)are unconstitutional. In this case, opposition to Temple’s speech code brought together groups as ideologically varied as the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Student Press Law Center, Students for Academic Freedom, Collegefreedom.org, and the Alliance Defense Fund. If anything, opposition to speech codes has transcended partisan divides, as judges and advocacy organizations from all over the country and the political spectrum agree that such codes are incompatible with fundamental First Amendment freedoms and the unique role of the university in American life.

DeJohn’s critics also argue that the Third Circuit erred by considering DeJohn’s claims against Temple without what they consider to be ample evidence that DeJohn had been specifically harmed by Temple’s sexual harassment policy. Robert M. O’Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression, told Inside Higher Ed that he found the Third Circuit’s opinion to be “very ominous” because he believed the court did not sufficiently consider whether DeJohn was actually affected by the policy. O’Neil said the court offered “no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy.”

Facial challenges for overbreadth are a unique, well-established and crucial aspect of First Amendment law. Recognizing that First Amendment rights are “supremely precious in our society,” the Supreme Court developed the overbreadth doctrine to protect speech from the chilling effect that occurs when a law or regulation is written so broadly that it reaches substantial amounts of protected speech. Plaintiffs may challenge allegedly overbroad statutes “as written,” rather than “as applied,” on behalf of those not in front of the court. The idea is that anyone subject to a law or policy that restricts his or her right to freedom of speech may challenge it on behalf of all citizens negatively affected by the constitutional violation.

Contrary to O’Neil’s characterization that there existed “no proof” that DeJohn “reasonably felt threatened” by Temple’s policy, the Third Circuit determined that, as a Temple student, DeJohn suffered from the policy’s existence. As the court noted, DeJohn argued that the policy made him feel “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, the policy had an impermissible “chilling effect” on his right to free expression. DeJohn was “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the university” — and by concluding that Temple’s policy “provide[d] no shelter for core protected speech,” the Third Circuit accepted these concerns as legitimate and reasonable. Because the Supreme Court has held that even a fleeting loss of First Amendment freedoms “unquestionably constitutes irreparable injury,” the Third Circuit was absolutely correct in determining that DeJohn had suffered sufficiently to entertain his facial challenge.

The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.

The Third Circuit adhered strictly to the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, a 1999 opinion holding that actionable harassment is limited to that behavior so “severe, pervasive, and objectively offensive ... that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Third Circuit made clear in DeJohn that Davis’s standard must be carefully followed, writing that “[a]bsent 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,” harassment policies like Temple’s provide “no shelter for core protected speech.”

If anything, the most noteworthy aspect of the Third Circuit’s ruling was the court’s refusal to import Morse’s restrictions on student speech into the university setting. That is a victory, because treating the First Amendment rights of university students as functionally equivalent to those of high school students fundamentally confuses the unique pedagogical missions of each level of schooling. The Third Circuit’s clear pronouncement that the First Amendment rights of adult college students must not be abridged should be welcomed by public universities, not feared.

Will Creeley is a lawyer and the director of Legal and Public Advocacy for the Foundation for Individual Rights in Education. Samantha Harris is a lawyer and the director of Spotlight: The Campus Freedom Resource for FIRE. Greg Lukianoff is a lawyer and president of FIRE.

Tankercmd said...

DeJohn Aims For Temple In Court - And Wins
By: Chris Freind , The Bulletin

For nearly eight years, Christian DeJohn has been a graduate student at Temple University, attempting to earn a degree in military history. But due to his position as a sergeant in the Army National Guard, his quest for his diploma has been a rocky road. In the midst of his studies, Sgt. DeJohn has had numerous active duty assignments, including a deployment to the Bosnian war zone. Upon his return to Temple, his thesis was met with stiff opposition from several university professors due to what DeJohn says is their contempt for his conservative political beliefs and military affiliation. Decrying that as a violation of free speech, the sergeant went to court. While he won the original federal lawsuit, as well as the appeal Temple filed, his academic and professional careers remain in limbo, as the settlement was a symbolic $1.00 and the thesis remains unapproved (see The Bulletin's story from Friday, Sept. 12).

The Bulletin recently sat down with Sgt. DeJohn to discuss his situation.

The Bulletin: You recently won a federal lawsuit against Temple University, for the second time, in which you accused the state-funded school of discrimination and stifling free speech. Why factors motivated you to file suit?

Sgt. DeJohn: The enlistment oath taken by every American serviceman includes a vow to support and defend the Constitution against all enemies, foreign and domestic, and to bear true faith and allegiance to the same. As a soldier and a decorated, disabled Army veteran, I feel a personal responsibility to protect the fundamental First Amendment rights of all Americans, and I'm honored that this fight has come to me.

The Constitutional rights involved here, for which soldiers have sacrificed and died, are just so fundamental. As a result, a large coalition formed in support of our court fight, both liberal and conservative organizations. We have the Alliance Defense Fund and the American Legion, and the ACLU and Feminists for Freedom of Expression. All agree on the importance of preserving and protecting free speech rights. Interestingly, Temple didn't even garner one supporter willing to publicly defend the university.

Why am I fighting this battle? Because I have been academically, professionally, financially, and personally attacked by Temple University. And I am a veteran who has served on four continents, fighting for the free speech rights of all Americans.

TB: According to the lawsuit, Dr. Richard Immerman was one of the Temple professors instrumental in keeping your thesis in limbo, ostensibly because of your political philosophy and military profile. He has been described as "a far-left professor of history on leave from Temple University who participated in "teach-ins" against the Iraq war", yet is now serving as the ombudsman for "analytic integrity" in the office of the Director of National Intelligence. Your thoughts?

SD: Commentary magazine described Dr. Immerman, in his role protecting intelligence against bias, as "a fox guarding the hen house" and "Michael Moore with a security clearance."

While overseas in a hostile fire zone, I exercised my First Amendment rights to disagree with Dr. Immerman's radical, anti-military political agenda. In court documents, Dr. Immerman stated to another Temple history professor, Dr. Gregory Urwin (also a defendant in the case), that he hoped I would "self-destruct" for daring to raise the issue of "liberal bias" at Temple. Professor Urwin, who teaches military history, argued to the court that my free speech concerns should have been dismissed because veterans like me are "mentally imbalanced" because we've "been trained to kill by the U.S. Army."

As a result of my civil rights lawsuit, Dr. Urwin compared me with the Virginia Tech mass murderer!

Under oath, Dr. Immerman (the chairman of Temple's History Department when the anti-war protests began),denied any involvement with the department's weekly anti-military "teach-in" protests at Temple, yet changed his sworn testimony when confronted with a flyer for these protests that read "Sponsored by the Temple History Department."

As not only a soldier but a taxpayer who is paying Dr. Immerman's salaries, both at Temple and in Washington, I find it troubling that someone with questionable integrity and a radical agenda is in a position to influence American foreign policy in a way that may lead to the deaths of American servicemen overseas.

TB: George Moore, Temple University counsel, stated in a newspaper interview, "We don't grant degrees to people who sue the university." How do you respond to that statement?

SD: Such a silly comment is not surprising, coming from a lawyer who actually argued to the court, unsuccessfully, that Temple had no idea how its speech code ever got posted on Temple's official Web site. Moore's comments are on par with those of Joe Tucker, another Temple lawyer, who actually argued that veterans and white males are not protected by the First Amendment. Well, two consecutive courts found otherwise. And Temple President Ann Hart refuses to comment on the case and on Temple's loss.

This the same person who called academic freedom "the university's highest value."

She also said that the university must be free of prejudice. And I quote, "We must recognize and uphold a university that celebrates the right to inquire, to speak, and to be within very broad parameters."

Her response to the argument that veterans and white males do not have First Amendment free speech rights? Total silence. President Hart, along with professors, need to be reminded that they work at taxpayer expense. Their salaries are paid by the taxpayers.

All of them, from President Hart down, need to stop ducking the press. They should be held publicly accountable for their words and actions. They're shameless.

Tankercmd said...

DeJohn v. Temple: The Facts of the Case
by Adam Kissel


August 5, 2008

The precedential decision by the U.S. Court of Appeals for the Third Circuit in the case of DeJohn v. Temple focuses mainly on the unconstitutionality of Temple's abandoned speech code—which had been disguised, as so many schools are doing nowadays, as part of its sexual harassment policy.

The case probably would not even have been filed if Temple had not treated DeJohn so badly in the first place. Following DeJohn's complaint, here's what happened:

Christian DeJohn, a student in Temple University's Master of Arts in Military and American History program, was also a member of the Pennsylvania National Guard. DeJohn was deployed to Bosnia. While deployed, he received a number of anti-war e-mails from a history professor at Temple:

the e-mails were full of anti-war messages, information about campus "sit-ins," and demonstrations around campus protesting the Iraq war.

DeJohn expressed his displeasure with the e-mails, and Department of History e-mails then stopped coming. When it was time for him to return to school, he found that he had been dismissed from the university. As DeJohn tells it, Temple "failed to grant DeJohn military leave guaranteed by federal and state law" and "dismissed him from school (later claiming his dismissal was a ‘computer error')." This so-called error was corrected, and DeJohn returned to class in 2003.

DeJohn then took a course named Comparative History of Modern War during which the professor

consistently engaged in diatribes against the United States military in Iraq and the alleged failures of President Bush. As a veteran, DeJohn politely disagreed with many of [Professor Gregory] Urwin's characterizations. DeJohn's disagreements were in no way disruptive to the classroom environment.

That could have been the end of it—just some serious intellectual exchange over contentious political issues. But in retaliation for DeJohn's non-disruptive responses to the anti-war messages of his professors, he alleged, Temple then

refused to advise him during his thesis completion, personally and professionally denigrated him when evaluating his thesis, rejected his thesis without legitimate academic grounds, delayed his graduation three times,

and more. For instance, although DeJohn had been given permission to complete an accredited course elsewhere and have it transferred, Urwin declared that the course was inadequate and required him to read an additional five or six books on the subject (the Vietnam War) and write papers on them. Urwin, who was the appropriate one to advise DeJohn's master's thesis, soon declared (according to the complaint) "that he could no longer advise DeJohn on his thesis because he was too busy." After DeJohn submitted his thesis, the professor

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,"

and more. DeJohn had apparently violated an unwritten rule about too many thesis advisors: if they don't like you or agree politically with your work, it's going to be harder to get them to stay on as your advisor and harder to have your work judged fairly. Because of the special relationship between advisor and student, a huge amount of discretion is afforded to the advisor, and unscrupulous advisors find it all too easy to abuse that discretion.

Judging the quality of academic work is often an extremely subjective enterprise, which is why courts would rather stay away from second-guessing university faculty. For this reason, not in a position to judge, I find it unsurprising that a court might dismiss charges against Temple that relate to Temple's treatment of DeJohn from an academic point of view. But this is no way means that Temple professors acted appropriately given the discretion with which they have been entrusted. Given the context of this case, I would think that Professor Urwin now might want to preserve his reputation and offer to have DeJohn's thesis reviewed by a more objective third-party panel.

As for Temple's unconstitutional speech code and the implications of the Third Circuit decision, see our upcoming blog series (all to be posted here) and earlier blog posts, and in particular see the amici brief filed by FIRE along 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.

It is often intimidating to speak out against the views of one's professors. But in an environment where speech has been chilled by an unconstitutional speech code—the Third Circuit has essentially said that Temple cannot be trusted to respect freedom of speech, even now, hence the injunction—and where DeJohn has suffered such treatment by members of Temple's Department of History, I think every student at Temple University ought to be warned: Temple University is not a safe place for you to speak out.

Tankercmd said...

DeJohn v. Temple: The Facts of the Case
by Adam Kissel


August 5, 2008

The precedential decision by the U.S. Court of Appeals for the Third Circuit in the case of DeJohn v. Temple focuses mainly on the unconstitutionality of Temple's abandoned speech code—which had been disguised, as so many schools are doing nowadays, as part of its sexual harassment policy.

The case probably would not even have been filed if Temple had not treated DeJohn so badly in the first place. Following DeJohn's complaint, here's what happened:

Christian DeJohn, a student in Temple University's Master of Arts in Military and American History program, was also a member of the Pennsylvania National Guard. DeJohn was deployed to Bosnia. While deployed, he received a number of anti-war e-mails from a history professor at Temple:

the e-mails were full of anti-war messages, information about campus "sit-ins," and demonstrations around campus protesting the Iraq war.

DeJohn expressed his displeasure with the e-mails, and Department of History e-mails then stopped coming. When it was time for him to return to school, he found that he had been dismissed from the university. As DeJohn tells it, Temple "failed to grant DeJohn military leave guaranteed by federal and state law" and "dismissed him from school (later claiming his dismissal was a ‘computer error')." This so-called error was corrected, and DeJohn returned to class in 2003.

DeJohn then took a course named Comparative History of Modern War during which the professor

consistently engaged in diatribes against the United States military in Iraq and the alleged failures of President Bush. As a veteran, DeJohn politely disagreed with many of [Professor Gregory] Urwin's characterizations. DeJohn's disagreements were in no way disruptive to the classroom environment.

That could have been the end of it—just some serious intellectual exchange over contentious political issues. But in retaliation for DeJohn's non-disruptive responses to the anti-war messages of his professors, he alleged, Temple then

refused to advise him during his thesis completion, personally and professionally denigrated him when evaluating his thesis, rejected his thesis without legitimate academic grounds, delayed his graduation three times,

and more. For instance, although DeJohn had been given permission to complete an accredited course elsewhere and have it transferred, Urwin declared that the course was inadequate and required him to read an additional five or six books on the subject (the Vietnam War) and write papers on them. Urwin, who was the appropriate one to advise DeJohn's master's thesis, soon declared (according to the complaint) "that he could no longer advise DeJohn on his thesis because he was too busy." After DeJohn submitted his thesis, the professor

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,"

and more. DeJohn had apparently violated an unwritten rule about too many thesis advisors: if they don't like you or agree politically with your work, it's going to be harder to get them to stay on as your advisor and harder to have your work judged fairly. Because of the special relationship between advisor and student, a huge amount of discretion is afforded to the advisor, and unscrupulous advisors find it all too easy to abuse that discretion.

Judging the quality of academic work is often an extremely subjective enterprise, which is why courts would rather stay away from second-guessing university faculty. For this reason, not in a position to judge, I find it unsurprising that a court might dismiss charges against Temple that relate to Temple's treatment of DeJohn from an academic point of view. But this is no way means that Temple professors acted appropriately given the discretion with which they have been entrusted. Given the context of this case, I would think that Professor Urwin now might want to preserve his reputation and offer to have DeJohn's thesis reviewed by a more objective third-party panel.

As for Temple's unconstitutional speech code and the implications of the Third Circuit decision, see our upcoming blog series (all to be posted here) and earlier blog posts, and in particular see the amici brief filed by FIRE along 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.

It is often intimidating to speak out against the views of one's professors. But in an environment where speech has been chilled by an unconstitutional speech code—the Third Circuit has essentially said that Temple cannot be trusted to respect freedom of speech, even now, hence the injunction—and where DeJohn has suffered such treatment by members of Temple's Department of History, I think every student at Temple University ought to be warned: Temple University is not a safe place for you to speak out.

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