• Student’s Claim that College District’s Sexual Harassment Policy Violated His Free Speech Rights Fails Due to Lack of Standing
  • October 28, 2010 | Authors: Diana D. Halpenny; Christian M. Keiner
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Lopez v. Candaele, (--- F.3d ----, C.A.9 (Cal.), September 17, 2010), the U.S. Court of Appeals for the Ninth Circuit considered a student’s challenge to a community college district’s sexual harassment policy on the grounds that it violated his right to free speech. The Ninth Circuit reversed the district court’s grant of an injunction, holding that because the student failed to make a clear showing that his intended speech gave rise to a specific and credible threat of adverse action from college officials, he lacked standing to bring action.

    Jonathan Lopez was a student attending Los Angeles City College in the Los Angeles Community College District (“District”). In the fall of 2008, he was a student in a speech class taught by Professor John Matteson (“Matteson”). For one assignment, Lopez delivered a speech about his religious beliefs, including his religious-based opposition to homosexuality and same-sex marriage. During this speech, Matteson interrupted Lopez, called him a vulgar name, and refused to allow Lopez to finish his speech. Matteson later advised Lopez his speech “offended” other students. Matteson further told Lopez that he may have violated the District’s student code of conduct, which includes a prohibition of sexual harassment, defined to include an array of different behaviors, including “generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes about women or men,” including “insulting remarks.”

    Matteson did not give Lopez a grade. Instead he wrote on Lopez’s evaluation form, “[a]sk God what your grade is” and “pros[elytising] is inappropriate in public school.” Lopez then met with the Dean of Academic Affairs (the “Dean”) to complain about the incident. The Dean asked Lopez to put his complaint in writing. Lopez did so and Matteson subsequently threatened to have Lopez expelled from college. Lopez obtained legal representation and his attorney sent a letter to the Dean and the community college president demanding that Lopez receive a fair grade on his speech, the college discipline Matteson, Matteson make a public apology to Lopez and that the college and its faculty provide written assurance that they would respect Lopez’ and other students’ First Amendment rights.

    The Dean responded by a letter two days latter that made it clear that the college was taking action in response to Lopez’ allegations. It stated that the Dean had met with Lopez twice and asked him to put his complaint in writing. It also stated that the college had commenced a “progressive discipline process” with respect to Matteson. Lopez eventually received an “A” in the class, though he never received a grade for his speech. In a subsequent affidavit, the Dean disavowed Matteson’s actions and declared his behavior as spontaneous and not in accordance with any of the college or District “handbooks, regulations and codes.” The affidavit also confirmed that Matteson was disciplined for his conduct. Further, neither the District nor the college took any enforcement action against Lopez under the sexual harassment policy.

    Lopez ultimately filed suit federal district court against the District and District officials, including the District trustees, seeking to enjoin the District from enforcing the harassment policy contained in the school’s code of conduct against Matteson, the Dean and other District and college officials. He asserted that the sexual harassment policy contained in the student code of conduct violated his constitutional right of freedom of speech; specifically, his freedom to express his religious views about homosexuality in a classroom speech. The district court granted the injunction, and the District appealed.

    The Ninth Circuit applied the three-prong standing test, which required Lopez to show an injury-in-fact, causation, and the likelihood that a favorable decision would redress his injury. Because the case involved an alleged infringement on a First Amendment right, the Ninth Circuit noted that Lopez could establish injury-in-fact by showing an “imminent injury” rather than actual harm.

    The Ninth Circuit held that Lopez failed to show real or imminent injury. It noted that Matteson’s comments to Lopez were, at most, a “general threat” to enforce the student code of conduct, rather than a “direct threat of punishment.” In the absence of showing that the policy applied to his speech, Lopez could not show that the District intended to enforce the policy against him. Therefore, Lopez had not shown a credible threat of adverse government action against him and lacked standing to seek federal court action to enjoin enforcement of the policy.

    The Ninth Circuit, however, concluded on a cautionary note: “formal and informal enforcement of policies that regulate speech on college campuses raise issues of profound concerns...[s]uch policies, well intentioned though they may be, carry significant risks of suppressing speech.” Thus, although the case was dismissed on lack of standing, the Ninth Circuit indicated the federal courts might look skeptically at a campus speech policy where an actual, imminent injury had been established by the student.

    What This Means To You
    Lopez underscores that a college student claiming a First Amendment violation needs to demonstrate actual enforcement of a speech policy against him or her, or, at a minimum that the policy was interpreted by the College to cover the speech at issue. Regardless, faculty should refrain from directly threatening students with enforcement of these policies. Problems should be referred to the appropriate administrator. College administration should also draft such campus speech policies carefully and should closely review the facts at hand when investigating and enforcing such policies.