Over the past several weeks, defenders of academic freedom have been in an uproar over Harvard Law Review’s unsigned student comment defending speech codes and criticizing the Third Circuit’s landmark decision in DeJohn v. Temple University. The comment argued that workplace harassment rules could apply to student speech and ignored a mountain of federal precedent to the contrary. Excellent critiques can be found here, here, and here.
Almost immediately after the comment was published, the Los Angeles Community College District put it to the test, citing it as authority (arguing that DeJohn was poorly reasoned and had come under scholarly criticism) in a motion to reconsider a July 10 injunction against the school’s speech code. Late last week, the court responded, and the injunction stands.
My colleague, Heather Hacker (writing in the ADF Center for Academic Freedom’s new website), notes this nice quote from the court’s opinion:
Finally, Defendants criticize DeJohn as a singular case and not well reasoned. (Motion 14). We think that DeJohn is well reasoned. Moreover, Defendants are unable to cite any case where a similar policy survived a constitutional challenge in a college setting so that it might arguably be said to conflict with DeJohn. To the contrary, the Third Circuit has rejected a substantially similar policy even in an elementary and high school setting. Saxe v. State College Area Sch. Dist., 240 F.3d 200, 216–17 (3d Cir. 2001). Thus, Defendants’ scattershot and disjointed arguments do not defeat the reasoning of DeJohn.
With this latest ruling, two things are becoming clear. First, law students – even Harvard law students — can’t trump federal precedent merely by stating their opinions. And second, as Heather says in her excellent post: “Public universities may not like it, but DeJohn is here to stay.”