DeJohn v. Temple Univ ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
DeJohn v. Temple Univ
Precedential or Non-Precedential: Precedential
Docket No. 07-2220
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-2220
CHRISTIAN M. DEJOHN
v.
TEMPLE UNIVERSITY; DAVID ADAMANY,
President of Temple University,
in his individual and official capacity;
RICHARD IMMERMAN, in his individual and
official capacity; GREGORY J.W. URWIN,
in his individual and official capacity,
Appellants
On appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 06-CV-778
District Judge: The Honorable Stewart Dalzell
Argued April 10, 2008
Before: SMITH, HARDIMAN, and ROTH,
Circuit Judges.
(Filed: August 4, 2008)
Leonard G. Brown, III, Esq.
Clymer & Musser
408 West Chestnut Street
Lancaster, PA 17608
Benjamin W. Bull, Esq.
Alliance Defense Fund
15100 North 90th Street
Scottsdale, AZ 85260
David A. French, Esq.
Alliance Defense Fund
12 Public Square
Columbia, TN 38401
David J. Hacker, Esq.
Alliance Defense Fund
101 Parkshore Drive
Suite 100
Folsom, CA 95630
Nathan W. Kellum, Esq. (Argued)
Alliance Defense Fund
699 Oakleaf Office Lane
#107
Memphis, TN 38117
Counsel for Appellee
Joe H. Tucker, Jr., Esq. (Argued)
Booth & Tucker
1617 John F. Kennedy Boulevard
Suite 1700
Philadelphia, PA 19103
Counsel for Appellant
2
OPINION
SMITH, Circuit Judge.
Christian DeJohn sued Temple University, its former
president, David Adamany, and two of his former graduate
school professors, Richard H. Immerman and Gregory J.W.
Urwin (hereinafter collectively referred to as “Temple” or “the
University”) in an eight-count complaint for violations of, inter
alia, First Amendment freedom of speech and expression
stemming from the University’s Policy on Sexual Harassment.1
In an Order dated March 21, 2007, the District Court granted
DeJohn’s motion for partial summary judgment in the form of
injunctive relief (“March 21 Order”). At that time, the Court
reserved the issue of damages for trial, explaining that
“[b]ecause the question of what, if any, harm DeJohn suffered
1
DeJohn’s first through sixth causes of action alleged that
Temple violated his First and Fourteenth Amendment rights to
free expression, due process, equal protection of the law, and
Pennsylvania tort and contract law. DeJohn’s seventh and
eighth causes of action were brought under 42 U.S.C. § 1983,
alleging violations of his rights to freedom of expression and
due process of law and his First Amendment right to freedom of
expression. Only these final two counts are at issue in this
appeal. We address them together as they both were briefed and
argued as facial challenges to the University’s sexual harassment
policy.
3
as a result of the unconstitutional policy is a question of fact
about which there are serious disputes, it must be held over for
trial.” On April 20, 2007, Temple timely appealed to this Court
from the March 21 Order. The case went to trial, and on April
26, 2007, the District Court entered Final Judgment in favor of
DeJohn on counts seven and eight of his Complaint,
permanently enjoining Temple from reimplementing or
enforcing its previous sexual harassment policy,2 and awarding
$1.00 in nominal damages in favor of DeJohn and against
Temple University. Temple did not appeal from the Final
Judgment. Because we conclude that the District Court’s March
21 Order was a non-final order under 28 U.S.C. § 1291, we
exercise appellate jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1) over only that portion of the order granting
injunctive relief. However, we lack jurisdiction over the Final
Judgment and award of damages in DeJohn’s favor. In addition,
because we conclude that the issue of whether Temple
University’s Policy on Sexual Harassment is constitutional is not
moot, and because we conclude on the merits that the policy is
facially unconstitutional, we will affirm the District Court’s
grant of injunctive relief.
I.
Christian DeJohn served in the Pennsylvania Army
National Guard. In January 2002, he enrolled in Temple
University to pursue a master’s degree in Military and American
2
As we discuss below, Temple University modified its
Policy on Sexual Harassment during the course of this litigation.
This appeal deals only with the constitutionality of the Policy
prior to its modification.
4
History. To obtain a master’s degree in history at Temple, a
student must first successfully complete his course work. The
student then has the option of either taking a comprehensive
exam or completing a master’s thesis. The parties agree that all
course work and other requirements must be completed within
three years from the date of admission unless a leave of absence
has been granted. A graduate student in the history department
must form a thesis committee, which includes an advisor
selected by the student to serve as the primary reader of the
master’s thesis and a secondary reader also chosen by the
student. The thesis must be acceptable to both readers before
the graduate student is allowed to defend it.
DeJohn took four classes in his first semester as a
graduate student. Following that semester, DeJohn was called
to active military duty and was deployed to Bosnia. He earned
graduate level credit while deployed through a correspondence
course related to the Vietnam War. By the end of the following
fall 2003 semester, DeJohn had completed all of the required
course work for his advanced degree. In January 2004, he chose
to draft a master’s thesis in lieu of taking a comprehensive
examination, and Dr. Jay Lockenour, a tenured associate
professor of history, agreed to serve as his thesis advisor. Dr.
Lockenour received DeJohn’s completed draft of his thesis on
March 16, 2005. By March 27, 2005, Dr. Lockenour had read
the entire thesis and e-mailed DeJohn with further, specific
critiques. DeJohn met with Dr. Lockenour on April 18, 2005,
to discuss necessary revisions, and the revisions continued. On
July 21, 2005, Dr. Lockenour approached Dr. Gregory J. W.
Urwin, a professor of history, at DeJohn’s request and asked
him to serve as DeJohn’s secondary reader; Dr. Urwin agreed.
On August 20, 2005, DeJohn delivered a revised draft of his
5
thesis to Dr. Urwin, who reviewed it. In March 2006, DeJohn
produced his most recent thesis draft to Dr. Andrew Isenberg,
the Chair of the History Department. Dr. Isenberg forwarded
the draft to Dr. Lockenour for his review as DeJohn’s primary
reader. The record indicates that DeJohn is not currently
registered as a student at Temple and has not been registered
since the 2006 spring semester.
DeJohn filed the instant action on February 22, 2006.
Only two of the original counts are at issue in this appeal. These
remaining counts embody DeJohn’s challenge of Temple
University’s Student Code of Conduct and related polices, in
particular as they address sexual harassment. The Temple
policy challenged here reads, in relevant part:
all 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 claims that this policy is facially overbroad.
Specifically, because of the sexual harassment policy, he felt
inhibited in expressing his opinions in class concerning women
in combat and women in the military. As a history graduate
student, DeJohn found himself engaged in conversations and
class discussions regarding issues he believed were implicated
by the policy. That, in turn, caused him to be concerned that
discussing his social, cultural, political, and/or religious views
6
regarding these issues might be sanctionable by the University.
Thus, DeJohn contends that the policy had a chilling effect on
his ability to exercise his constitutionally protected rights.
On May 22, 2006, Temple filed a motion to dismiss
DeJohn’s Complaint. On September 11, 2006, the District
Court granted in part Temple’s motion to dismiss with respect
to counts three through six. The Court ordered Temple to file an
Answer to the remaining counts. On October 9, 2006, DeJohn
moved for a judgment on the pleadings on his seventh and
eighth causes of action. The Court denied the motion, giving
Temple an opportunity to support its sexual harassment policy
by showing it had a particularized reason to anticipate
“substantial disruption from the broad swath of student speech
prohibited under the Policy.”
On January 15, 2007, less than three weeks before the
deadline for filing dispositive motions in the case, Temple
modified its sexual harassment policy. Temple then filed a
motion for a protective order and a motion to quash duces
tecum—arguing that because there were no longer issues in the
case due to the policy modification, DeJohn was not entitled to
a Rule 30(b)(6) deposition on the sexual harassment policy or
duces tecum discovery of records of past harassment complaints.
The District Court denied this motion, concluding in part that
there was nothing to prevent Temple from restoring the policy
as soon as counts seven and eight of the Complaint were
resolved.
After discovery, DeJohn moved for summary judgment
on counts seven and eight and Temple moved for summary
judgment on all remaining claims. On March 21, 2007, the
7
District Court granted DeJohn’s motion, declared the Temple
University Policy on Sexual Harassment (as enacted before
January 15, 2007) facially unconstitutional and enjoined Temple
from reimplementing or enforcing the sexual harassment policy
that existed before the changes implemented on January 15,
2007. The District Court granted in part and denied in part
Temple’s motion for summary judgment on the remaining
claims in the case. Temple appealed the partial grant of
summary judgment.
After trial, the District Court entered Final Judgment in
favor of DeJohn on counts seven and eight, permanently
enjoined Temple from reimplementing or enforcing its previous
policy, and awarded $1.00 in nominal damages in favor of
DeJohn and against Temple University. The Court entered
judgment in Temple’s favor as to counts one and two.
II.
Before we address the merits of Temple’s appeal, we
must determine the scope of our jurisdiction. Temple argues
that we have jurisdiction over the District Court’s grant of an
injunction, as well as the District Court’s award of damages.
Temple argues that while the District Court did not award
damages to DeJohn until April 26, 2007, its act of awarding
damages was “purely ministerial or mechanical,” and as such,
the March 21 Order was a final order disposing of all of the
claims. We cannot agree.
Temple argues that the March 21 Order ended the
litigation related to counts seven and eight on the merits and left
nothing else for the District Court to do but execute the
8
judgment. That is, Temple argues that this Court has appellate
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
Federal Rule of Civil Procedure 54(b) directs otherwise. It
provides that:
When an action presents more than one claim for
relief—whether as a claim, counterclaim,
crossclaim, or third-party claim—or when
multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court
expressly determines that there is no just reason
for delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than
all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to
any of the claims or parties and may be revised at
any time before the entry of a judgment
adjudicating all the claims and all the parties’
rights and liabilities.
FED. R. CIV. P. 54(b) (emphasis added). The March 21 Order
left a First Amendment retaliation claim and a § 1983 claim for
money damages unresolved, and as such, the order was not final
within the meaning of Rule 54(b). Rule 54(b) “expressly
provides that an order adjudicating less than all claims in an
action with multiple claims is not final unless the district court
makes an express determination that there is no just reason for
delay . . . on express direction for the entry of judgment.” Ortiz
v. Eichler, 794 F.2d 889, 891 (3d Cir. 1986) (internal quotation
marks omitted). A district court may direct the entry of a final
judgment pursuant to Rule 54(b) only when a distinct claim is
fully adjudicated. Neither party suggests that Temple
University moved for certification pursuant to Rule 54(b) on
9
counts seven and eight of the Complaint. Even had it done so,
those counts had not been fully adjudicated as of March 21
because DeJohn’s request for damages had yet to be
determined. The quantification of damages, contrary to the
University’s argument, was more than a ministerial act to be
performed by the clerk of the court and routinely executed by
the judge. Indeed, it was a contested issue held for trial that
required adjudication by a finder of fact and was not resolved
by the March 21 Order. We have previously recognized that,
“[i]t is a well-established rule of appellate jurisdiction . . . that
where liability has been decided but the extent of damage
remains undetermined, there is no final order.” Apex Fountain
Sales, Inc. v. Kleinfeld, 27 F.3d 931, 934–35 (3d Cir. 1994)
(quoting Sun Shipbuilding & Dry Dock Co. v. Benefits Review
Bd., 535 F.2d 758, 760 (3d Cir. 1976) (per curiam) (collecting
cases). See also, e.g., Republic Natural Gas Co. v. Oklahoma,
334 U.S. 62, 68 (1948) (“[T]he requirement of finality has not
been met merely because the major issues in a case have been
decided and only a few loose ends remain to be tied up—for
example, where liability has been determined and all that needs
to be adjudicated is the amount of damages.”); Cohen v. Bd. of
Tr. of the Univ. of Med. & Dentistry of N.J., 867 F.2d 1455,
1465 n.8 (3d Cir. 1989) (en banc) (explaining that the plaintiff’s
claim had not been fully adjudicated because her request for
damages had not been determined); EEOC v. Del. Dep’t of
Health & Soc. Servs., 865 F.2d 1408, 1413 (3d Cir. 1989) (“An
order which establishes liability without fixing the amount of
recovery is generally not final.”); Weiss v. York Hosp., 745 F.2d
786, 802 (3d Cir. 1984) (“because . . . additional proceedings,
including the determination of certain defenses and of damages,
are yet to take place, most of these ‘judgments’ . . . are not final
within the meaning of 28 U.S.C. § 1291”), cert. denied, 470
10
U.S. 1060 (1985); In re Jack Raley, 17 F.3d 291 (9th Cir. 1995)
(holding that the premature notice of appeal was not valid
because the matter of prejudgment interest was not decided until
long after the notice of appeal had been filed). Thus, the March
21 Order, though appealable under § 1292(a)(1), is not
appealable under 28 U.S.C. § 1291.3
3
In some circumstances, Rule 4(a)(2) of the Federal Rules
of Appellate Procedure ensures that premature notices of appeal
will remain effective to appeal a final judgment of the district
court. The Rule provides that “a notice of appeal filed after the
court announces a decision or order—but before the entry of the
judgment or order—is treated as filed on the date of and after
the entry.” FED. R. APP. P. 4(a)(2). Accordingly, regardless of
when the appeal was actually filed, a premature notice of appeal
will relate forward to the date that the judgment or order is
ultimately entered. First Tier Mortgage Co. v. Investors
Mortgage Ins., 498 U.S. 269, 275 (1991). Rule 4(a)(2) does
not, however, preserve the effectiveness of every premature
notice of appeal. A party who files a premature notice of appeal
concerning a decision that was not immediately appealable at
the time of the district court’s announcement may lose the
opportunity to appeal that decision. Rule 4(a)(2) permits a
notice of appeal from a nonfinal decision to operate as a notice
of appeal from the final judgment only when a district court
announces a decision that would be appealable if immediately
followed by the entry of judgment. First Tier Mortgage Co.,
498 U.S. at 276.
In a multiple claims action, an order/judgment disposing
of less than all of the claims is not literally a decision that would
be appealable if immediately followed by the entry of judgment
because Rule 54(b) certification would have had to take place
first. As previously stated, however, neither party suggests that
Temple University moved for certification pursuant to 54(b);
11
Appeal is available as a matter of right from interlocutory
orders with respect to injunctions. 28 U.S.C. § 1292(a)(1). Rule
54(b) does not limit appeals under § 1292(a)(1), even as to
orders granting permanent injunctions. 16 C HARLES A LAN
W RIGHT & A RTHUR R. M ILLER, F EDERAL P RACTICE AND
P ROCEDURE § 3921.1 (2d ed. 1996).4 Thus, Temple’s Notice of
Appeal is timely only to the extent that it appeals from the
District Court’s March 21 Order granting DeJohn’s requests for
injunctive relief on counts seven and eight of his Complaint.
and importantly, even if the University had, the issue of
damages still remained. See Cohen, 867 F.2d at 1465 n.8
(explaining that the plaintiff’s claims had not been fully
adjudicated because her request for damages had not been
determined); see also In re Jack Raley, 17 F.3d 291 (9th Cir.
1995) (holding that the premature notice of appeal was not valid
because the matter of prejudgment interest was not decided until
long after the notice of appeal had been filed). Thus, even if
54(b) certification were appropriate, it would not have
converted the judgment into a wholly appealable one without
modifying or enlarging that decision in any way. Thus, Rule
4(a)(2) provides no assistance to Temple University.
4
Section 1292(a)(1) does not distinguish between
preliminary and permanent injunctions and permanent
injunctions are consistently appealed under § 1292(a)(1). See
Cohen, 867 F.2d at 1464 n.7 (“Because section 1292 covers all
injunctive orders, determining whether this order is a
preliminary injunction or a permanent injunction is not relevant
to our inquiry. The order is in either event interlocutory.”).
Thus, even though the District Court did not use the language of
“preliminary” or “permanent” in its March 21 Order, either
characterization would not affect our analysis here.
12
III.
Temple University argues that the District Court lacked
jurisdiction to declare its former sexual harassment policy
unconstitutional and to issue an injunction relating to that policy
because 1) the constitutionality of the former policy was
rendered moot after Temple voluntarily revised the policy on
January 15, 2007, and/or 2) DeJohn left the University. We
have explained that:
The Constitution limits this court’s jurisdiction to
the adjudication of actual cases and controversies.
“[A] case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” The court’s
ability to grant effective relief lies at the heart of
the mootness doctrine. That is, “[i]f developments
occur during the course of adjudication that
eliminate a plaintiff’s personal stake in the
outcome of a suit or prevent a court from being
able to grant the requested relief, the case must be
dismissed as moot.”
Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336
F.3d 211, 216 (3d Cir. 2003) (citations omitted).
We will first examine Temple’s argument that DeJohn’s
claims for equitable relief in counts seven and eight became
moot with the school’s voluntary amendment of the contested
policy. In doing so, we heed the Supreme Court’s instruction
that
13
as a general rule, “voluntary cessation of allegedly
illegal conduct does not deprive the tribunal of
power to hear and determine the case, i.e., does
not make the case moot.” But jurisdiction,
properly acquired, may abate if the case becomes
moot because (1) it can be said with assurance
that “there is no reasonable expectation . . .” that
the alleged violation will recur, and (2) interim
relief or events have completely and irrevocably
eradicated the effects of the alleged violation.
When both conditions are satisfied it may be said
that the case is moot because neither party has a
legally cognizable interest in the final
determination of the underlying questions of fact
and law.
Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (internal
citations omitted). The Supreme Court noted that, “[t]he burden
of demonstrating mootness ‘is a heavy one.’” Id. (citation
omitted). Our Court has articulated the burden for the party
alleging mootness as “‘heavy,’ even ‘formidable.’” United
States v. Gov’t of Virgin Islands, 363 F.3d 276, 285 (3d Cir.
2004). We conclude that Temple has not met this burden.
Given the posture of this case, and the briefing on appeal,
we are left with no assurance that Temple will not reimplement
its pre-January 15 sexual harassment policy, absent an
injunction, after this litigation has concluded. See Davis, 440
U.S. at 631 (holding that only if there is no reasonable
expectation that the alleged violation will recur can the
voluntary cessation of a challenged practice render a case moot).
Temple did not change its sexual harassment policy for more
than a year after the commencement of litigation and then only
near the end of discovery, less than three weeks before the
14
dispositive motions deadline in the case. More importantly,
Temple defended and continues to defend not only the
constitutionality of its prior sexual harassment policy, but also
the need for the former policy. We consider these two factors
significant in evaluating whether there is a “reasonable
expectation” that Temple will reimplement its previous sexual
harassment policy. See id.
The Supreme Court considered mootness and the
voluntary cessation of a policy in Parents Involved in
Community Schools v. Seattle School District No. 1, 127 S. Ct.
2738, 2751 (2007). There, the Supreme Court considered
whether a student assignment plan that relied on racial
classification to allocate slots in oversubscribed high schools
was constitutional. Parents Involved in Cmty Schs., 127 S. Ct.
at 2749. The plaintiff’s son, Joshua, was assigned to Young
Elementary, a school approximately ten miles away from their
house. The mother attempted to have him transferred to a
school one-mile away that had openings. Her request was
denied because, “[t]he transfer would have an adverse effect on
desegregation compliance” of Young. The mother then brought
suit, alleging violations of the Equal Protection Clause. In
challenging the petitioner’s standing, the School District noted
that it had ceased using the racial tiebreaker pending the
outcome of the litigation. Id. at 2751. The Court noted that,
despite this suspension, the School District vigorously defended
the constitutionality of its race-based program, and did not deny
that if the litigation was resolved in its favor it would resume
using race to assign students. Id. The Court reiterated that,
“[v]oluntary cessation does not moot a case or controversy
unless ‘subsequent events ma[ke] it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected
15
to recur,’” and the Court concluded that it was “a heavy burden
that [the school district] has clearly not met.” Id. We recognize
that Temple never stated that it only changed its policy pending
the outcome of this litigation, as occurred in Parents Involved in
Community Schools. Nevertheless, Temple defended and
continues to defend not only the constitutionality of its prior
sexual harassment policy, but also the need for the former
policy. Thus, like Parents Involved in Community Schools,
there have been no subsequent events that make it absolutely
clear that Temple will not reinstate the allegedly wrongful policy
in the absence of the injunction. See Davis, 440 U.S. at 631; see
also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.
167, 189 (2000) (holding that the standard for “determining
whether a case has been mooted by the defendant’s voluntary
conduct is stringent: A case might become moot if subsequent
events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.”).
We came to a similar conclusion in United States v.
Government of Virgin Islands, 363 F.3d 276 (3d Cir. 2004).
There, the United States brought a Clean Water Act enforcement
action against the U.S. Virgin Islands. 363 F.3d at 279. The
Virgin Islands then entered into a negotiated contract with
Global Resources Management (“GRM”), a company that was
to provide the services necessary to achieve compliance. Id.
The United States filed a motion to show cause as to why
performance of the GRM contract should not be enjoined
because it was likely tainted by political corruption, and that
GRM itself was a start-up company with no equipment, assets,
or experience in construction. Id. The District Court entered an
order in March 2003 enjoining the Virgin Islands from
proceeding with or reviving the GRM contract. Id. The Virgin
16
Islands argued on appeal that the District Court lacked
jurisdiction—on mootness grounds—to enjoin the contract
between the Virgin Islands and GRM because the Virgin Islands
had voluntarily terminated the contract two days before the
hearing on the motion. Id. This Court determined that the
Virgin Islands “failed to meet its heavy burden of demonstrating
that there is no reasonable expectation that it would again enter
into a contract similar to the one at issue.” Id. at 285. We
reasoned, in part, that:
The timing of the contract termination—just five
days after the United States moved to invalidate
it, and just two days before the District Court’s
hearing on the motion—strongly suggests that the
impending litigation was the cause of the
termination. Additionally, the Governor’s sole
justification for the termination of the contract
was that “such termination is in the best interest
of the Government.” But this statement is
extremely general, and surely does not provide
any assurance that a similar contract would not be
entered into again. . . . In short, the mere fact that
the Governor has terminated a contract in this one
instance with litigation lurking a couple of days
away gives no assurance that a similar contract
will not be entered into in the future.
Additionally, the [Virgin Islands’]
continued defense of the validity and soundness
of the contract prevents the mootness argument
from carrying much weight. . . . This stance does
not bespeak of a genuine belief that the contract
was of a type that would not be contemplated
again.
17
Id. at 285–86. Like the timing of the contract termination and
the Virgin Islands’ continued defense of its contract, here
Temple’s timing of the policy change, as well as its continued
defense of its former policy, do not meet the “formidable”
burden of demonstrating that there is no reasonable expectation
that it would reimplement its former policy. See id. at 285.
Temple urges us to consider the Eleventh Circuit opinion
in Jews for Jesus, Inc. v. Hillsborough County Aviation
Authority, 162 F.3d 627 (11th Cir. 1998), as support for its
position that this issue is moot. In Jews for Jesus, the plaintiff
brought a lawsuit in August 1995 against Tampa International
Airport seeking injunctive and declaratory relief that would
permit the organization to distribute literature at the airport.5
162 F.3d at 629. Approximately one month after the
commencement of the lawsuit, in September 1995, the airport
lifted the prohibition on the distribution of literature. Id. After
that time, individuals and organizations—including Jews for
Jesus—were freely permitted to distribute literature at the
Tampa International Airport. Id. Jews for Jesus argued,
however, that there was still a justiciable “case or controversy”
before the district court because of the possibility of a return to
the prior prohibition (or to the restrictive policy in place before
the prohibition). Id. The Eleventh Circuit disagreed. It found
that there was no reasonable expectation that Tampa
International Airport would return to its prior policy. Id. This
determination was based on the Court’s assessment that the new
5
The airport had a policy for literature distribution that was
suspended in November 1986; it had therefore been “under
review” for nine years at the time of Jews for Jesus’ lawsuit.
Jews for Jesus, 162 F.3d at 629 n.2.
18
“open door” policy appeared to have been the result of
substantial deliberation on the part of airport officials. Id. In
addition, the Court noted that evidence suggested that the
Airport consistently applied the new policy for three years (the
policy was changed in September 1995 and the Court issued its
opinion in December 1998). Id. Of course we are not bound by
Eleventh Circuit precedent; regardless, we do not believe that
our conclusion is at odds with that of the Eleventh Circuit. In
contrast to Jews for Jesus, where the airport lifted its prohibition
one month after the lawsuit began, Temple did not change its
policy until the discovery process was almost over, more than a
year after the commencement of litigation, and less than three
weeks remained before the dispositive motion deadline in the
case. Further, the record before us does not support an
assessment that Temple’s policy change was the result of
substantial deliberation, such that Temple would not be inclined
to revert back to its old policy. To the contrary, Temple
continues to defend that former policy.
Thus, DeJohn’s claims for equitable relief did not
become moot with Temple’s voluntary revision of its policy.
We now consider Temple’s argument that DeJohn is no
longer a student at the University, and that his claim for
injunctive relief is moot for that reason. Temple would have us
resolve this issue based on whether DeJohn is currently a
student. The circumstances of this case reveal, however, that
whether DeJohn qualifies as a “student”—one who attends a
school or one who studies6 —is not necessarily easy to discern.
6
Merriam-Webster’s Collegiate Dictionary defines “student”
as “one who attends a school” or “one who studies: an attentive
19
On the record before us, we are satisfied that DeJohn has a
legally cognizable interest in the outcome of this case.
There is no dispute between the parties that in the
master’s degree program at Temple University all course work
and other requirements must be completed within three years
from the date of admission unless a student successfully secures
a leave of absence.7 DeJohn enrolled in January 2002 and
completed all of the required course work for his master’s thesis
by the end of the fall 2003 semester. DeJohn submitted the first
completed draft of his thesis to Dr. Lockenour, his thesis
advisor, in March 2005. In March 2006, DeJohn provided his
most recent thesis draft to Dr. Andrew Isenberg, the Chair of the
History Department. DeJohn’s thesis has not since been
approved; the record reflects that the last action taken with
respect to it was when Dr. Isenberg forwarded the draft to Dr.
Lockenour for his review as DeJohn’s primary thesis reader.
Temple argues that the reason DeJohn is not registered as
a student, and why he cannot be a student at Temple, is because
the time period for his matriculation, three years enrolled and
and systematic observer.” M ERRIAM-W EBSTER’S C OLLEGIATE
D ICTIONARY 1239 (11th ed. 2003).
7
The record indicates that DeJohn was granted a military
leave of absence for about a year (or two semesters). He was
deployed to Bosnia after the spring 2002 semester (his first
semester) and it appears that he missed the fall 2002 semester
and the spring 2003 semester and did not return to class until the
fall of 2003. See Reply Brief of Defendant-Appellant at 3,
DeJohn v. Temple University, No. 07-2220 (3d Cir. September
13, 2007).
20
one year on military leave, expired in December 2006 8 before
DeJohn fulfilled the requirements of the master’s program.9
Reply Brief of Defendant-Appellant at 3, DeJohn v. Temple
University, No. 06-0778 (3d Cir. September 13, 2007). DeJohn
states that the reason he is not currently registered for classes is
because he already completed all of the required course work for
his master’s degree, and is awaiting approval of his thesis.
DeJohn points out that absent from the record is any fact
indicating that he graduated or that he has been dismissed from
the school. We agree that, on this record, DeJohn continues to
have a relationship with Temple University, and as such,
continues to be subject to the sexual harassment policy. DeJohn
completed all of the required course work for his master’s
program and submitted a complete draft of his master’s thesis by
March of 2005, that is, within the allowable time period for
matriculation. From our perspective, DeJohn will continue to be
a “student,” interacting with students, professors, and
8
We think Temple may have intended to say that DeJohn’s
time period for matriculation expired in January 2006, as that
would be four years after he was admitted to the program in
January 2002.
9
We observe that Temple admitted in its Answer that
DeJohn was a Temple University graduate student and that it
made no curative amendment to this pleading. Compare
Verified Complaint ¶ 7, DeJohn v. Temple University, No. 06-
778 (E.D.Pa. Feb. 22, 2006) (“Plaintiff Christian DeJohn . . . is
an adult graduate student pursuing a master’s degree in military
and American history at the University.”), with Defendants’
Answer to Plaintiff’s Complaint with Affirmative Defenses ¶ 7,
DeJohn v. Temple University, No. 06-778 (E.D.Pa. Sept. 21,
2006) (“Admitted.”).
21
administration, until his graduate degree is either granted or
denied. Temple itself averred that there is no required standard
time frame in which university officials must review and render
a final decision on his graduate thesis—that “[t]he time frame to
review and grant final approval of a graduate degree thesis is
solely dependent upon the quality of work that the graduate
submits for review.” Answer at 19, DeJohn v. Temple
University, No. 06-00778 (E.D.Pa. Sept. 21, 2006). Until
DeJohn’s thesis has received final approval or disapproval, it
seems clear that he remains a member of the Temple University
community,10 subject to its Policy on Sexual Harassment. As
such, DeJohn’s claims for equitable relief are not moot.
IV.
Our appellate review properly extends to matters
inextricably bound up with the injunction decision. W RIGHT &
M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 3921.1. While
the scope of appellate review under § 1292(a)(1) is confined to
the issues necessary to determine the propriety of the
interlocutory order itself, interlocutory orders with respect to
permanent injunctions provide frequent occasion for review of
the merits. Id. Here, in order for us to determine the propriety
of the injunction, we must review the District Court’s
determination that Temple University’s Policy on Sexual
Harassment is facially unconstitutional.
10
The Temple University Policy on Sexual Harassment
applies to “all individuals who are part of the Temple
Community” “in any context.” Temple University Policies and
Procedures Manual, Policy on Sexual Harassment, Section
II.A.1.
22
A.
We begin our analysis by noting that the overbreadth
doctrine may be appropriately utilized in the school setting.11
See Rust v. Sullivan, 500 U.S. 173, 200 (1991) (referencing
Keyishian v. Bd. of Regents, State Univ. of N.Y., 385 U.S. 589,
603, 605–06 (1967) (“[W]e have recognized that the university
is a traditional sphere of free expression so fundamental to the
functioning of our society that the Government’s ability to
control speech within that sphere by means of conditions
attached to the expenditure of Government funds is restricted by
the vagueness and overbreadth doctrines of the First
Amendment.”). We think this is an important initial observation
as the Supreme Court’s resolution of student free speech cases
has been, to this point in time, without reference to the
11
Derived from the First Amendment, the overbreadth
doctrine is typically employed to strike down criminal statutes
that are unconstitutionally overbroad on their face. Overbreadth
attacks “ have been entertained in cases involving statutes
which, by their terms, seek to regulate ‘only spoken words.’”
Broadrick v. Oklahoma, 413 U.S. 601, 612–13 (1973) (citations
omitted). “Overbreadth attacks have also been allowed where
the Court thought rights of association were ensnared in statutes
which, by their broad sweep, might result in burdening innocent
associations.” Id. (citations omitted). Further, these challenges
have been entertained “where statutes, by their terms, purport to
regulate the time, place, and manner of expressive or
communicative conduct . . . and where such conduct has
required official approval under laws that delegated
standardless discretionary power to local functionaries, resulting
in virtually unreviewable prior restraints on First Amendment
rights.” Id. (citations omitted).
23
overbreadth doctrine. See Tinker v. Des Moines Ind. Cmty Sch.
Dist., 393 U.S. 503 (1969) (implicating a school policy); Papish
v. Bd. of Curators of Univ. of Missouri, 410 U.S. 667 (1973)
(same); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
(same). Even so, since the inception of overbreadth
jurisprudence, the Supreme Court has recognized its prominent
role in preventing a “chilling effect” on protected expression.
Broadrick v. Oklahoma, 413 U.S. 601, 630 (1973) (“Although
the Court declines to hold the Oklahoma Act unconstitutional on
its face, it does expressly recognize that overbreadth review is
a necessary means of preventing a ‘chilling effect’ on protected
expression.”). This laudable goal is no less implicated on public
university campuses throughout this country, where free speech
is of critical importance because it is the lifeblood of academic
freedom. As the Supreme Court in Healy v. James explained,
“the precedents of this 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. Quite to the contrary, ‘the
vigilant protection of constitutional freedoms is nowhere more
vital than in the community of American schools.’” 408 U.S.
169, 180 (1972) (citation omitted). See also Widmar v. Vincent,
454 U.S. 263, 268–69 (1981) (“With respect to persons entitled
to be there, our cases leave no doubt that the First Amendment
rights of speech and association extend to the campuses of state
universities.”). In the context of school anti-discrimination
policies, our Court has emphasized that
“Harassing” or discriminatory speech, although
evil and offensive, may be used to communicate
ideas or emotions that nevertheless implicate First
Amendment protections. As the Supreme Court
has emphatically declared, “[i]f there is a bedrock
24
principle underlying the First Amendment, it is
that the government may not prohibit the
expression of an idea simply because society finds
the idea offensive or disagreeable.”
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 209 (3d Cir.
2001) (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).
Because overbroad harassment policies can suppress or even
chill core protected speech, and are susceptible to selective
application amounting to content-based or viewpoint
discrimination, the overbreadth doctrine may be invoked in
student free speech cases.
B.
In reviewing a facial challenge to a racial harassment
policy, we have explained:
A regulation of speech 12 may be struck
down on its face if its prohibitions are sufficiently
overbroad—that is, if it reaches too much
expression that is protected by the Constitution.
The harassment policy can be found
unconstitutionally overbroad if “there is a
‘likelihood that the statute’s very existence will
inhibit free expression’” to a substantial extent.
In most cases, courts will not assess the
12
“While the harassment policy may be said to regulate
conduct, it clearly regulates speech, insofar as it specifically
targets certain expression.” Sypniewski v. Warren Hills Reg’l
Bd. of Educ., 307 F.3d 243, 258 n.14 (3d Cir. 2002).
25
constitutionality of a provision apart from its
particular applications. But cases involving
freedom of speech are frequently excepted from
this general rule.
...
Accordingly, most cases alleging
unconstitutional enforcement of a public school’s
disciplinary policies, like other laws, “are best
addressed when (and if) they arise, rather than
prophylactically through the disfavored
mechanism of a facial challenge.” For these
reasons, courts will not strike down a regulation
as overbroad unless the overbreadth is
“substantial in relation to the [regulation’s]
plainly legitimate sweep.”
Furthermore, in response to an overbreadth
challenge, a policy can be struck down only if no
reasonable limiting construction is available that
would render the policy constitutional. “[E]very
reasonable construction must be resorted to, in
order to save a statute from unconstitutionality.”
A court, however, “will not rewrite a . . . law to
conform it to constitutional requirements.”
Accordingly, we must determine whether the
relatively broad language of the policy can
reasonably be viewed narrowly enough to avoid
any overbreadth problem.
Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243,
258–59 (3d Cir. 2002) (internal citations omitted). In addition
26
to the general considerations inherent in reviewing facial
challenges to speech regulations, in the present facial challenge
we are guided by our decision in Saxe.13
13
In Saxe, the State College Area School District
(“SCASD”) adopted an Anti-Harassment Policy. 240 F.3d at
202. Two of the paragraphs of the policy at issue were:
Harassment means verbal or physical conduct
based on one’s actual or perceived race, religion,
color, national origin, gender, sexual orientation,
disability, or other personal characteristics, and
which has the purpose or effect of substantially
interfering with a student’s educational
performance or creating an intimidating, hostile
or offensive environment.
Harassment can include any unwelcome verbal,
written or physical conduct which offends,
denigrates or belittles an individual because of
any of the characteristics described above. Such
conduct includes, but is not limited to, unsolicited
derogatory remarks, jokes, demeaning comments
or behaviors, slurs, mimicking, name calling,
graffiti, innuendo, gestures, physical contact,
stalking, threatening, bullying, extorting or the
display or circulation of written material or
pictures.
Id. at 202–03, 218–23 (emphasis added). After the
Anti-Harassment Policy was adopted, Saxe filed suit in federal
court alleging that the Policy was facially unconstitutional under
the First Amendment’s Free Speech Clause. Id. at 203. The
District Court found that Saxe had standing to mount a facial
challenge but granted SCASD’s motion to dismiss, holding that
27
Saxe, however, involved a public elementary and high
school district. Before we employ the overbreadth analysis as
used in Saxe, we must point out that there is a difference
between the extent that a school may regulate student speech in
a public university setting as opposed to that of a public
elementary or high school.
It is well recognized that “[t]he college classroom with its
surrounding environs is peculiarly the ‘marketplace of ideas[,]’”
Healy, 408 U.S. at 180, and “[t]he First Amendment guarantees
wide freedom in matters of adult public discourse[,]” Fraser,
478 U.S. at 682. 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. See Fraser, 478 U.S. at
682 (“It does not follow, however, that simply because the use
of an offensive form of expression may not be prohibited to
adults making what the speaker considers a political point, the
same latitude must be permitted to children in a public school.”).
This is particularly true when considering that public elementary
and high school administrators have the unique responsibility to
act in loco parentis. See id. at 684.
In Sypniewski, we noted the difference in regulating
student speech in public elementary and high schools as
compared to public universities. 307 F.3d at 260. There, we
stressed that, in the context of a public elementary or high
school, the “special needs of school discipline” are an important
consideration in regulating speech. Id. (explaining that “a
the policy was facially constitutional. Id. at 204. We reversed.
Id. at 202, 218.
28
school disciplinary policy will be struck down as overbroad only
after consideration of the special needs of school discipline has
been brought to bear together with the law’s general hesitation
to apply this ‘strong medicine’”). However, and most important
here, we explicitly recognized that, although “[s]peech codes are
disfavored under the First Amendment because of their tendency
to silence or interfere with protected speech . . . [,] public
secondary and elementary school administrators are granted
more leeway [to restrict speech] than public colleges and
universities . . . .” Id. (emphasis added). Accordingly, in
determining whether Temple University’s policy passes
constitutional muster under our reasoning in Saxe, we keep in
mind that Temple’s administrators are granted less leeway in
regulating student speech than are public elementary or high
school administrators.
In Saxe, we noted that there is no “harassment exception”
to the First Amendment’s Free Speech Clause; that is, “we have
found no categorical rule that divests ‘harassing’ speech as
defined by federal anti-discrimination statutes, of First
Amendment protection.” 14 Id. at 204, 210. We explained that
14
We noted that the SCASD Policy prohibited a substantial
amount of speech that would not constitute actionable
harassment under federal law. Significantly, we noted that the
Supreme Court has recognized the right of a public school
student to sue a school under Title IX for “hostile environment”
harassment. Saxe, 240 F.3d at 205–06. This right applies to
cases involving harassment of a student by a teacher or other
agent of a school, as well as for certain cases of student-on-
student harassment. Id. at 205 (citing Davis v. Monroe County
Bd. of Educ., 526 U.S. 629 (1999); Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60, 74–75 (1992)). To recover in such a
29
while there is no question that non-expressive, physically
harassing conduct is entirely outside the ambit of the free speech
clause, “[w]hen laws against harassment attempt to regulate oral
or written expression on such topics, however detestable the
views expressed may be, we cannot turn a blind eye to the First
Amendment implications. ‘Where pure expression is involved,’
anti-discrimination law ‘steers into the territory of the First
Amendment.’” Id. at 206 (quoting DeAngelis v. El Paso Mun.
Police Officers Ass’n, 51 F.3d 591, 596 (5th Cir. 1995)).
Recognizing, then, that some “harassing” speech may be
worthy of First Amendment protection, we look to see whether
Temple’s Policy on Sexual Harassment reaches too much
expression that is constitutionally protected. See Sypniewski,
307 F.3d at 258. The relevant portion of Temple’s challenged
sexual harassment policy reads:
For all individuals who are part of the Temple
community, all forms of sexual harassment are
prohibited, including the following: an
unwelcome sexual advance, request for sexual
favors, or other 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
case, a plaintiff must establish “sexual harassment [] that is so
severe, pervasive, and objectively offensive, and that so
undermines and detracts from the victims’ educational
experience, that [he or she is] effectively denied equal access to
an institution’s resources and opportunities.” Id. (citation
omitted).
30
status; or (d) such conduct has the purpose or
effect of creating an intimidating, hostile, or
offensive environment.
Temple University Policy on Sexual Harassment, Section II.A.1
(emphasis added). With language mirroring the Policy at issue
in Saxe, Temple’s policy unequivocally prohibits any
“expressive, visual or physical conduct” when that conduct “has
the purpose or effect of unreasonably interfering with an
individual’s work, educational performance, or status; or . . . has
the purpose or effect of creating an intimidating, hostile, or
offensive environment.” Compare Saxe, 240 F.3d at 210, with
supra note 13 & Temple University Policy on Sexual
Harassment, Section II.A.1.15
Saxe specifically criticized some of this language, and the
criticism is apropos. Initially, the policy’s focus upon the
motives of the speaker is rightly criticized. Under the Supreme
Court’s rule in Tinker, a school must show that speech will
cause actual, material disruption before prohibiting it.16 Tinker,
15
We recognize that Temple’s sexual harassment policy is
not nearly as broad as the anti-harassment policy in Saxe. The
policy in Saxe prohibited conduct based on any “personal
characteristic,” which included “clothing, physical appearance
. . . hobbies or values, etc.” Saxe, 240 F.3d at 220. Temple’s
policy, on the other hand, is limited to conduct “of a sexual or
gender-motivated nature.”
16
In Tinker, school officials adopted a policy in order to
prevent a group of students from wearing black armbands to
express their opposition to the United States’ participation in the
Vietnam War. The Court upheld the students’ right to wear the
armbands because there was “no evidence whatever of
31
393 U.S. at 509. 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. See Saxe,
240 F.3d at 216–17. As such, the focus on motive is contrary to
Tinker’s requirement that speech cannot be prohibited in the
absence of a tenable threat of disruption.17
petitioners’ interference, actual or nascent, with the schools’
work or of collision with the rights of other students . . . .”
Tinker, 393 U.S. at 508. The school argued that its policy was
necessary because of a concern that the armbands would
possibly create a disturbance in school. The Supreme Court
held that “in our system, undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom
of expression.” Id.
17
We recognize that “[s]ince Tinker, the Supreme Court has
carved out a number of narrow categories of speech that a
school may restrict even without the threat of substantial
disruption.” Saxe, 240 F.3d at 212 (discussing Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist.
v. Kuhlmeier, 484 U.S. 260 (1988)). “Under Fraser, a school
may categorically prohibit lewd, vulgar or profane language.
Under Hazelwood, a school may regulate school-sponsored
speech (that is, speech that a reasonable observer would view as
the school’s own speech) on the basis of any legitimate
pedagogical concern.” Id. at 214. We then determined that
speech falling outside of these categories is subject to Tinker’s
general rule: it may be regulated only if it would substantially
disrupt school operations or interfere with the rights of others.
Id.
32
Further, the 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.” See Saxe, 240 F.3d at 217. This could
include “core” political and religious speech, such as gender
politics and sexual morality.18 See id. Absent 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—the policy provides no shelter for core
protected speech. See Saxe, 240 F.3d at 210–11 (referencing
Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ.,
526 U.S. 629, 652 (1999) (“[I]n the context of
student-on-student harassment, damages are available only
where the behavior is so severe, pervasive, and objectively
offensive that it denies its victims the equal access to education
that Title IX is designed to protect.”)).
C.
Before declaring whether this or any policy is
unconstitutional, we must determine whether it is susceptible to
a reasonable limiting construction. Saxe, 240 F.3d at 215 (citing
Stretton v. Disciplinary Bd. of the Supreme Court of
18
Indeed, in the instant case, the Plaintiff, a graduate student
pursuing a master’s degree in Military and American History,
argues that he felt inhibited in expressing his opinions in class
concerning women in combat and women in the military. Brief
of Plaintiff-Appellee at 7, DeJohn v. Temple University, No. 07-
2220 (3d Cir. August 27, 2007).
33
Pennsylvania, 944 F.2d 137, 144 (3d Cir. 1991) (citations
omitted); Hoffman Estates v. Flipside, Hoffman Estates, 455
U.S. 489, 494 n.4 (1982) (“In evaluating a facial challenge to a
state law, a federal court must, of course, consider any limiting
construction.”); Broadrick, 413 U.S. at 617 n.16 (“a federal
court must determine what a state statute means before it can
judge its facial unconstitutionality”)). Under the Temple Policy
the following elements, if present, constitute sexual harassment:
(1) expressive, visual or physical conduct (2) of a sexual or
gender-motivated nature and which (3) has the purpose or effect
of either (3a) unreasonably interfering with an individual’s
work, educational performance, or status, or (3b) creating an
intimidating, hostile, or offensive environment. If we juxtapose
this definition of harassment with the limiting construction that
this Court placed on the policy at issue in Saxe, we find that they
are very similar.19 Importantly, even with the limiting
construction, our Court found that the Saxe policy still
prohibited “a substantial amount of non-vulgar, non-sponsored
student speech” and that it still did not satisfy Tinker. Saxe, 240
F.3d at 216–17. Even more significantly, this case deals with a
19
The Saxe policy, narrowed,
would require the following elements before
speech could be deemed harassing: (1) verbal or
physical conduct (2) that is based on one’s actual
or perceived personal characteristics and (3) that
has the purpose or effect of either (3a)
substantially interfering with a student’s
educational performance or (3b) creating an
intimidating, hostile, or offensive environment.
240 F.3d at 216.
34
harassment policy in the university setting, whereas the policy
in Saxe applied to high-schoolers. Thus, the limitations Tinker
imposed on a school’s ability to promulgate such a policy must
at least be satisfied. As we indicated before, we must proceed
with greater caution before imposing speech restrictions on adult
students at a college campus.
First, harassment is defined in the policy as including
expressive conduct of a “gender-motivated nature.” This phrase
gives rise to a number of issues. “Gender-motivated”
necessarily requires an inquiry into the motivation of the
speaker. Whose gender must serve as the motivation, the
speaker’s or the listener’s? And does it matter? Additionally,
we must be aware that “gender,” to some people, is a fluid
concept.20 Even if we narrow the term “gender-motivated” to
20
The term “gender” has recently acquired a meaning
distinct from “sex.” Traditionally, “gender” has been used
primarily to refer to “masculine,” “feminine,” and “neuter.”
“Gender has long been used as a grammatical distinction of a
word according to the sex referred to.” Bryan A. Garner, A
Dictionary of Modern Legal Usage 382 (2d ed. 1995). The
concept of gender is also rooted in science and means
sex—male or female—based on biology (chromosomes,
genitalia). See 1 O XFORD E NGLISH D ICTIONARY 1081 (5th ed.
2002). However, the usage of the word is changing in some
circles as a result of social and ideological movements that find
the scientific meaning to be unsatisfactory or not sufficiently
inclusive. The Oxford English Dictionary reflects this change
by including another definition of “gender,” which is “[s]ex as
expressed by social or cultural distinctions.” Id. For example,
California now defines “gender” to “include[] a person’s gender
identity and gender related appearance and behavior whether or
35
“because of one’s sex,” we are far from certain that this
limitation still does not encompasses expression on a broad
range of social issues.
Second, as in Saxe, Temple’s Policy reaches any speech
that interferes or is intended to interfere with educational
performance or that creates or is intended to create a hostile
environment. See Saxe, 240 F.3d at 216. Thus, “the Policy
punishes not only speech that actually causes disruption, but also
speech that merely intends to do so: by its terms, it covers
speech ‘which has the purpose or effect of’ interfering with
educational performance or creating a hostile environment. This
ignores Tinker’s requirement that a school must reasonably
believe that speech will cause actual, material disruption before
prohibiting it.” Id. at 216–17.21 Additionally, the Policy
not stereotypically associated with the person’s assigned sex at
birth.” See C AL G OV’T C ODE §§ 12926(p), 12949. Gender has
also been defined to include pregnancy, childbirth, and related
medical conditions. See, e.g., S.C. C ODE A NN. § 1-13-30(l);
C AL G OV’T C ODE §§ 12926(p). In 2002, New York amended its
Human Rights Law, defining “gender” to include discrimination
on the basis of “a person’s gender identity self-image,
appearance, behavior or expression, whether or not that gender
identity, self-image, appearance, behavior or expression is
different from that traditionally associated with the legal sex
assigned to that person at birth.” N.Y.C. C ODE § 8-102.
21
Temple notes that its former sexual harassment policy’s
language is almost identical to language provided by the EEOC
and thus, in this context, Temple’s use of the terms “purpose” or
“effect” has a specific meaning and should not be automatically
analogized to their use in Saxe. However, Temple fails to
explain how that makes the “specific meaning” constitutionally
36
prohibits a substantial amount of non-vulgar, non-sponsored
student speech. Id.
Even if we ignore the “purpose” component, the Policy’s
prong that deals with conduct that “unreasonably interfere[s]
with an individual’s work” probably falls short of satisfying the
Tinker standard. If we were to construe “unreasonable” as
encompassing a subjective and objective component, it still does
not necessarily follow that speech which effects an unreasonable
interference with an individual’s work justifies restricting
another’s First Amendment freedoms. Under Tinker, students
may express their opinions, even on controversial subjects, so
long as they do so “without colliding with the rights of others.”
Tinker, 393 U.S. at 512. As we observed in Saxe, while the
precise scope of this language is unclear, Saxe, 240 F.3d at 217,
we do believe that a school has a compelling interest in
preventing harassment. Yet, unless harassment is qualified with
a standard akin to a severe or pervasive requirement, a
permissible. Temple does state that “[t]here is an abundance of
federal court decisions recognizing the reasonableness of this
definition of harassment.” However, Temple only cites one case
in support—Stroehmann Bakeries, Inc. v. Local 776, Intern.
Broth. of Teamsters, 969 F.2d 1436 (3d Cir. 1992). Stroehmann
Bakeries does not pass on whether the EEOC language is or is
not constitutional, but instead cites the EEOC policy generally
for the proposition that “[t]here is a well-defined and dominant
public policy concerning sexual harassment in the workplace
which can be ascertained by reference to law and legal
precedent.” Id. at 1141–42.
37
harassment policy may suppress core protected speech.22 See id.
For similar reasons, some speech that creates a “hostile
or offensive environment” may be protected speech under the
First Amendment. It is difficult to cabin this phrase, which
could encompass any speech that might simply be offensive to
a listener, or a group of listeners, believing that they are being
subjected to or surrounded by hostility. See id. Certainly speech
amounting to “fighting words” would not be protected,
Chaplinsky v. New Hampshire, 315 U.S. 568, 572–73 (1942),
but the policy covers much more speech than could be
prohibited under Tinker’s substantial disruption test as well as
speech that does not rise to the level of “fighting words.”
V.
Because our review of the District Court’s grant of
injunctive relief required us to evaluate the constitutionality of
Temple’s Policy on Sexual Harassment, and because we now
conclude that the Policy is facially overbroad, we will affirm the
District Court’s March 21 Order granting injunctive relief in
favor of DeJohn.
22
We note that in Saxe we held that the policy “which
prohibits speech that would ‘substantially interfer[e] with a
student’s educational performance,’ may satisfy the Tinker
standard. The primary function of a public school is to educate
its students; conduct that substantially interferes with the
mission is, almost by definition, disruptive to the school
environment.” Saxe, 240 F.3d at 217.
38