On Monday, a federal appeals court declared Temple University’s former overbroad sexual harassment policy unconstitutional: 

In dissecting the university’s original policy, the appeals panel found it to be flawed in numerous ways. The court first zeroed in on the fact that Temple’s policy prohibited “expressive, visual or physical conduct of a sexual or gender-motivated nature” that not only has the “effect” but the “purpose” of “unreasonably interfering with an individual’s work, educational performance, or status” or “of creating an intimidating, hostile or offensive environment.”

Under Supreme Court precedents, the Third Circuit panel argued, potentially harassing speech must be shown to “cause actual, material disruption” before it is prohibited. “Under the language of Temple’s policy, a student who sets out to interfere with another student’s work, educational performance, or status … would be subject to sanctions regardless of whether these motives and actions had their intended effect.” The ruling added: “[T]he Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech ‘which has the purpose or effect of’ interfering with educational performance or creating a hostile environment. This ignores [a previous decision’s] requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it.”

More fundamentally, the court found, the language in Temple’s discarded policy bars an overly broad range of activities. “[T]he policy’s use of ‘hostile,’ ‘offensive,’ and ‘gender-motivated’ is, on its face, sufficiently broad and subjective that they ‘could conceivably be applied to cover any speech’ of a ‘gender-motivated’ nature ‘the content of which offends someone,’ ” the judges wrote, borrowing language from

a 2001 decision involving a public school system.

“Absent any requirement akin to a showing of severity or pervasiveness – that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work – the policy provides no shelter for core protected speech,” such as that involving political or religious topics.

More details here and here.

IWF on overbroad sexual harassment policies here.