Anne Lowe

FREE SPEECH – A lawsuit challenging the Los Angeles Community College District’s sexual harassment policy, alleging violations of the First Amendment, was dismissed by the U.S. Court of Appeals Friday, because the student bringing the case to court failed to show how anything he said or did could have triggered sanctions under the policy.

Student Jonathan Lopez filed the suit after a series of interactions with the college district following a speech he gave against gay marriage in 2008 as part of a classroom exercise. His complaint contended that the school’s sexual harassment policy—which he said was used to threaten him—was unconstitutional because it was overbroad and vague; the Court of Appeals, however, dismissed the suit because Lopez lacked standing to pursue the claim.

The case stemmed from several references by faculty and administrators to the school’s Student Code of Conduct in correspondence with Lopez and his attorney. After refusing to let Lopez finish his speech in Nov. 2008, Professor John Matteson called Lopez a “fascist bastard” and reminded him on a subsequent assignment that he had agreed to abide by the school’s Code of Conduct, which contains a clause about sexual harassment. A letter from the district to Lopez and his attorney also made note of the code, and Lopez believed the notes proved the district was intending to enforce its sexual harassment policy on him.

The Court, however, said Lopez did not prove he was injured by the sexual harassment policy, as reported by the Metropolitan News in Los Angeles:

(Circuit Judge Sandra S.) Ikuta also said that Lopez did not adequately prove an intent to violate the policy, or that school officials had or would apply it to him, because his undetailed assertions that he wished to discuss his “Christian views on politics, morality, social issues, religion, and the like” failed to show that the policy “even arguably applies to his past or intended future speech.”

She explained:

“[T]he District’s policy precludes students from engaging in sexual harassment, which, in its most wide-reaching formulation, includes ‘verbal, visual, or physical conduct of a sexual nature’ that has the purpose or effect of creating a ‘hostile or offensive work or educational environment.’. . . Comparing Lopez’s past and proposed future speech to the plain language of the District’s sexual harassment policy, we do not see, nor does Lopez explain, how the policy applies to him, given that his statements and proposed topics do not, on their face, constitute ‘verbal conduct of a sexual nature.’ ”
Judges Ronald M. Gould and N. Randy Smith joined Ikuta in her opinion.