Here is Temple's policy:
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 status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.The court took issue with the policy's inclusion of conduct that has the purpose of intimidation or offense "regardless of whether these motives and actions had their intended effect." Thus, the court determined, the policy runs afoul of the Supreme Court's ruling that "speech cannot be prohibited in the absence of a tenable threat of disruption." The court also criticized the policy's use of terms “hostile,” “offensive,” and “gender-motivated” for potentially prohibiting "'core political and religious speech, such as gender politics and sexual morality."
In theory, this ruling should not effect the level of protection afforded by Title IX against sexual harassment. The Third Circuit indicated that it would be satisfied had the policy's prohibition extended only to conduct that is severe and pervasive -- that it "objectively and subjectively creates a hostile environment or substantially interferes with an individual." In other words, coextensive with protection of Title IX, as stated in Davis.
However, the practical effect of this ruling remains to be seen. If this decision causes universities to become more concerned about First Amendment litigation than Title IX liability, they could repeal, weaken, or underenforce existing policies, leaving students and others in the university community more vulnerable to harassment.
Decision: DeJohn v. Temple University, 2008 WL 2952777 (3d Cir. Aug. 4, 2008).
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