I’ve been on a brief posting hiatus here at PBC because I’ve been preparing for (and then actually starting) a trial in Philadelphia on behalf of Christian DeJohn, a sergeant in the Pennsylvania Army National Guard and a master’s student in Temple’s history department.
Christian’s case contained two distinct claims. First, Christian launched a facial challenge against the Temple University sexual harassment policy, a disguised speech code that dramatically departed from the law and violated controlling precedent.
Second, Christian also challenged the specific conduct of the university and two of its professors. In late 2002, Christian was deployed overseas to serve as a peacekeeper in Bosnia. While overseas, Christian received a series of anti-war messages from a university listserv. While Christian didn’t dispute the right of professors or anyone else to protest the war in Afghanistan or the (at that time imminent) war in Iraq, he also didn’t want to receive such messages while in a hostile fire zone. At trial, Christian testified that he wrote back to his department chair and asked to be removed from the e-mail list.
When Christian returned home from Bosnia, he found that he had been expelled from the university. When Christian challenged the expulsion, the university re-admitted him, claiming computer error. What Christian didn’t realize (at the time) was that the attitude of two key professors – his department chair and academic advisor — had dramatically changed towards him.
In university e-mails, these professors variously described him (among other things) as a “fool or liar,” a “gnat,” “mentally unstable,” and “trained to kill by the U.S. Army.” The department chair hoped he’d “self destruct,” and his academic advisor (in a later message that attempted to justify his actions against Christian) claimed that Christian was “obsessed” with “liberal bias.” One of his professors even went so far as to urge the department chair contact key Temple alumni (individuals who would be in a position to hire Christian after he graduated) and tell them that Christian did not represent Temple’s “best and brightest.”
In a March 22, 2007, ruling, the federal judge hearing the case gave Christian a great victory by (1) permanently enjoining the Temple speech code; and (2) granting Christian a jury trial on his claims against his professors. That jury trial started this Wednesday, April 25.
Well, the judge giveth; the judge taketh away. A day and a half into the trial, the judge granted the defendants’ motion to dismiss Christian’s retaliation claims (before the jury could deliver a verdict). There were multiple technical grounds for the judge’s ruling. Among other things, he found that Temple did not have an obligation to train its professors in the First Amendment rights of students because there was no “need” for such training, that the department chair was not a “policy maker” under relevant law, that there was not sufficient proof of a “nexus” between Christian’s speech and the department chair’s actions, and – finally – that while there was enough evidence of retaliation by Christian’s former advisor to send to the jury, his advisor was protected from suit by the doctrine of “qualified immunity.”
We obviously disagree with these rulings. First, it is interesting that the judge held that there was no need for Temple to train its professors in the First Amendment rights of students when he had just one month before struck down a major Temple policy on First Amendment grounds. Second, it is disturbing that – according to the judge’s ruling – a student can prove that a professor retaliated against him based on his protected speech, yet the professor is immune from suit.
So now the case moves on up to the court of appeals, where Temple has already appealed the speech code decision. It’s always disappointing to face a negative court decision, but nothing that happened yesterday changed the fact that every Temple student enjoys greater free speech rights as a result of Christian DeJohn’s stand. And for that, we owe him our thanks.