Metropolitan News-Enterprise


Monday, September 20, 2010


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Court Tosses Free-Speech Challenge to Sexual Harassment Policy


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday threw out a challenge to the Los Angeles Community College District’s sexual harassment policy by a student who said his professor interrupted his speech against same-sex marriage during a public speaking class and called him a “fascist bastard.”

Los Angeles City College student Jonathan Lopez lacked standing to pursue his claim that the policy violated the First Amendment where he failed to show that his intended speech on religious topics gave rise to a specific and credible threat of adverse action by college officials, a three-judge panel said.

Lopez is a self-described devout Christian who says he believes his faith requires him to share his religious beliefs with others. He had just defined marriage as being a union between a man and a woman and had quoted two Bible verses as part of a speech in November 2008, weeks after California voters approved Proposition 8 banning same-sex unions, when his professor, John Matteson, interrupted and refused to allow him to finish.

Matteson, Lopez said, later wrote on an evaluation form that Lopez could “[a]sk God what your grade is,” and threatened to have him expelled when the student complained to school administrators. The professor gave Lopez an “A” on a subsequent assignment when Lopez proposed exercising the right to free speech as a topic, but reminded Lopez that he had agreed to abide by the school’s Student Code of Conduct.

Demand Letter

Lopez by then had secured legal representation, and his lawyer sent school administrators a letter demanding a fair grade on the speech and that Matteson apologize and face discipline. The school responded, advising that Lopez would receive a fair grade for the speech and in the class, and that Matteson would be disciplined. But it also noted that at least two students in the class had complained about Lopez’s speech, likening it to “hateful propaganda.”

Lopez filed suit against Matteson and other school officials, alleging that Matteson’s conduct violated his First Amendment and equal protection rights. He also claimed that the district’s sexual harassment policy violated the First Amendment because it was overbroad and vague.

U.S. District Judge George H. King of the Central District of California concluded that Lopez had standing and enjoined the school from enforcing the policy. The Ninth Circuit, however, reversed in an opinion by Judge Sandra S. Ikuta, who wrote that Lopez failed to show any injury under the policy.

The judge rejected Lopez’s claims that Matteson’s actions in telling students they could leave the class if they were offended by Lopez’s speech and in reminding Lopez about the code of conduct, as well as the administrator’s letter telling Lopez that his speech offended other students, constituted a credible threat that the policy would be enforced against Lopez.

Inadequate Proof of Intent

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.

The case is Lopez v. Candaele, 09-56238.


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