Dejohn v. Temple University

• Decision Date: 04 August 2008
• Docket Number: No. 07-2220.,07-2220.
• Citation: 537 F.3d 301
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Christian M. DeJOHN v. TEMPLE UNIVERSITY; David Adamany, President of Temple University, in his individual and official capacity; Richard Immerman, in his individual and official capacity; Gregory J.W. Urwin, in his individual and official capacity, Appellants.

537 F.3d 301

Christian M. DeJOHN v. TEMPLE UNIVERSITY; David Adamany, President of Temple University, in his individual and official capacity; Richard Immerman, in his individual and official capacity; Gregory J.W. Urwin, in his individual and official capacity, Appellants.

No. 07-2220.

United States Court of Appeals, Third Circuit.

Argued April 10, 2008.

Filed August 4, 2008.

Leonard G. Brown, III, Esq., Clymer & Musser, Lancaster, PA, Benjamin W. Bull, Esq., Scottsdale, AZ, David A. French, Esq., Columbia, TN, David J. Hacker, Esq., Folsom, CA, Nathan W. Kellum,

Esq. (Argued), Alliance Defense Fund, Memphis, TN, for Appellee.

Joe H. Tucker, Jr., Esq. (Argued), Booth & Tucker, Philadelphia, PA, for Appellant.

Before: SMITH, HARDIMAN, and ROTH, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Christian DeJohn sued Temple University, its former president, David Adamany, and two of his former graduate school professors, Richard H. Immerman and Gregory J.W. Urwin (hereinafter collectively referred to as "Temple" or "the University") in an eight-count complaint for violations of, inter alia, First Amendment freedom of speech and expression stemming from the University's Policy on Sexual Harassment.¹ In an Order dated March 21, 2007, the District Court granted DeJohn's motion for partial summary judgment in the form of injunctive relief ("March 21 Order"). At that time, the Court reserved the issue of damages for trial, explaining that "[b]ecause the question of what, if any, harm DeJohn suffered as a result of the unconstitutional policy is a question of fact about which there are serious disputes, it must be held over for trial." On April 20, 2007, Temple timely appealed to this Court from the March 21 Order. The case went to trial, and on April 26, 2007, the District Court entered Final Judgment in favor of DeJohn on counts seven and eight of his Complaint, permanently enjoining Temple from reimplementing or enforcing its previous sexual harassment policy,² and awarding $1.00 in nominal damages in favor of DeJohn and against Temple University. Temple did not appeal from the Final Judgment. Because we conclude that the District Court's March 21 Order was a non-final order under 28 U.S.C. § 1291, we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) over only that portion of the order granting injunctive relief. However, we lack jurisdiction over the Final Judgment and award of damages in DeJohn's favor. In addition, because we conclude that the issue of whether Temple University's Policy on Sexual Harassment is constitutional is not moot, and because we conclude on the merits that the policy is facially unconstitutional, we will affirm the District Court's grant of injunctive relief.

I.

Christian DeJohn served in the Pennsylvania Army National Guard. In January 2002, he enrolled in Temple University to pursue a master's degree in Military and American History. To obtain a master's degree in history at Temple, a student must first successfully complete his course work. The student then has the option of either taking a comprehensive exam or completing a master's thesis. The parties agree that all course work and other requirements must be completed within three years from the date of admission unless a leave of absence has been granted. A graduate student in the history department must form a thesis committee, which includes an advisor selected by the student to serve as the primary reader of the master's thesis and a secondary reader also chosen by the student. The thesis must be acceptable to both readers before the graduate student is allowed to defend it.

DeJohn took four classes in his first semester as a graduate student. Following that semester, DeJohn was called to active military duty and was deployed to Bosnia. He earned graduate level credit while deployed through a correspondence course related to the Vietnam War. By the end of the following fall 2003 semester, DeJohn had completed all of the required course work for his advanced degree. In January 2004, he chose to draft a master's thesis in lieu of taking a comprehensive examination, and Dr. Jay Lockenour, a tenured associate professor of history, agreed to serve as his thesis advisor. Dr. Lockenour received DeJohn's completed draft of his thesis on March 16, 2005. By March 27, 2005, Dr. Lockenour had read the entire thesis and e-mailed DeJohn with further, specific critiques. DeJohn met with Dr. Lockenour on April 18, 2005, to discuss necessary revisions, and the revisions continued. On July 21, 2005, Dr. Lockenour approached Dr. Gregory J.W. Urwin, a professor of history, at DeJohn's request and asked him to serve as DeJohn's secondary reader; Dr. Urwin agreed. On August 20, 2005, DeJohn delivered a revised draft of his thesis to Dr. Urwin, who reviewed it. In March 2006, DeJohn produced his most recent thesis draft to Dr. Andrew Isenberg, the Chair of the History Department. Dr. Isenberg forwarded the draft to Dr. Lockenour for his review as DeJohn's primary reader. The record indicates that DeJohn is not currently registered as a student at Temple and has not been registered since the 2006 spring semester.

DeJohn filed the instant action on February 22, 2006. Only two of the original counts are at issue in this appeal. These remaining counts embody DeJohn's challenge of Temple University's Student Code of Conduct and related polices, in particular as they address sexual harassment. The Temple policy challenged here reads, in relevant part:

all forms of sexual harassment are prohibited, including ... 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.

DeJohn claims that this policy is facially overbroad. Specifically, because of the sexual harassment policy, he felt inhibited in expressing his opinions in class concerning women in combat and women in the military. As a history graduate student, DeJohn found himself engaged in conversations and class discussions regarding issues he believed were implicated by the policy. That, in turn, caused him to be concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the University. Thus, DeJohn contends that the policy had a chilling effect on his ability to exercise his constitutionally protected rights.

On May 22, 2006, Temple filed a motion to dismiss DeJohn's Complaint. On September 11, 2006, the District Court granted in part Temple's motion to dismiss with respect to counts three through six. The Court ordered Temple to file an Answer to the remaining counts. On October 9, 2006, DeJohn moved for a judgment on the pleadings on his seventh and eighth causes of action. The Court denied the motion, giving Temple an opportunity to support its sexual harassment policy by showing it had a particularized reason to anticipate "substantial disruption from the broad swath of student speech prohibited under the Policy."

On January 15, 2007, less than three weeks before the deadline for filing dispositive motions in the case, Temple modified its sexual harassment policy. Temple then filed a motion for a protective order and a motion to quash duces tecum — arguing that because there were no longer issues in the case due to the policy modification, DeJohn was not entitled to a Rule 30(b)(6) deposition on the sexual harassment policy or duces tecum discovery of records of past harassment complaints. The District Court denied this motion, concluding in part that there was nothing to prevent Temple from restoring the policy as soon as counts seven and eight of the Complaint were resolved.

After discovery, DeJohn moved for summary judgment on counts seven and eight and Temple moved for summary judgment on all remaining claims. On March 21, 2007, the District Court granted DeJohn's motion, declared the Temple University Policy on Sexual Harassment (as enacted before January 15, 2007) facially unconstitutional and enjoined Temple from reimplementing or enforcing the sexual harassment policy that existed before the changes implemented on January 15, 2007. The District Court granted in part and denied in part Temple's motion for summary judgment on the remaining claims in the case. Temple appealed the partial grant of summary judgment.

After trial, the District Court entered Final Judgment in favor of DeJohn on counts seven and eight, permanently enjoined Temple from reimplementing or enforcing its previous policy, and awarded $1.00 in nominal damages in favor of DeJohn and against Temple University. The Court entered judgment in Temple's favor as to counts one and two.

II.

Before we address the merits of Temple's appeal, we must determine the scope of our jurisdiction. Temple argues that we have jurisdiction over the District Court's grant of an injunction, as well as the District Court's award of damages. Temple argues that while the District Court did not award damages to DeJohn until April 26, 2007, its act of awarding damages was "purely ministerial or mechanical," and as such, the March 21 Order was a final order disposing of all of the claims. We cannot agree.

Temple argues that the March 21 Order ended the litigation related to counts seven and eight on the merits and left nothing else for the District Court to do but execute the judgment. That is, Temple argues that this Court has appellate jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Federal Rule of Civil Procedure 54(b) directs otherwise. It provides that:

When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final...