U. S. Appeals Court Throws Out Suit Over Religious Speech

September 19, 2010

A federal appeals court on Friday threw out a case brought by a Los Angeles City College student whose Speech 101 professor shouted him down and called him a "fascist bastard" while he was giving a presentation about his Christian faith.

The student, Jonathan Lopez, sued the Los Angeles Community College District last year. He said that the professor, John Matteson, retaliated and discriminated against him because of his religious beliefs. The lawsuit asked the court to strike down a district sexual-harassment code that forbade students and employees from creating a "hostile or offensive" educational environment. A federal district judge later issued an injunction preventing the college district from enforcing that code, saying it was overly broad and violated free-speech rights.

But a panel of the U.S. Circuit Court of Appeals for the Ninth Circuit unanimously found that Mr. Lopez failed to show he was harmed by the sexual-harassment policy and that he lacked standing to bring the case. Despite "the disturbing facts of the case," Mr. Lopez did not show how his speech, or his intended speech in the future, would have violated the policy he challenged, the judges ruled.

"No LACC official or student invoked or even mentioned the policy, nor did anyone suggest that Lopez's ... speech constituted sexual harassment," the ruling says.

David J. Hacker, a lawyer for the Alliance Defense Fund, which helped bring the lawsuit, said the decision could have chilling effects on student speech nationwide. Policies like the one Mr. Lopez challenged, which apply to students any time they are on the institution's campus, "lead to students' believing they can speak less," he said.

Mr. Hacker said the court's decision conflicted with another ruling last month by the U.S. Court of Appeals for the Third Circuit, which held that portions of the student-conduct code at the University of the Virgin Islands were unconstitutional. That court used a more relaxed standard to grant standing to the student who challenged the parts of the college policy on similar First Amendment grounds.

Given the conflict, the Alliance Defense Fund will probably appeal the Lopez case, either to the full Ninth Circuit or to the Supreme Court, Mr. Hacker said.