Posted: January 23, 201012:25 am Eastern
By Bob Unruh Â© 2010 WorldNetDaily
A California college is asking the 9th U.S. Circuit Court of Appeals to restore a policy at the center of a case in which a professor berated a Christian student with the suggestion, "Ask God what your grade is."
The Los Angeles Community College District, the nation's largest community college system, filed the appeal of a lower-court decision in favor of student Jonathan Lopez, represented by the Alliance Defense Fund.
As WND reported, Lopez, a student at Los Angeles City College, was delivering a speech on his Christian faith in speech class when professor John Matteson interrupted him, called him a "fascist b----rd" for mentioning a moral conviction against homosexual marriage. The professor later told the student to "ask God what your grade is."
Matteson also warned on his evaluation of Lopez's speech, "Proselytizing is inappropriate in public school," and later threatened to have the student expelled.
The subsequent lawsuit by the ADF targeted the school for the professor's comments but also sought removal of a campus sexual harassment and speech policy that court documents explained "systematically prohibits and punishes political and religious speech by students that is outside the campus political mainstream."
In his ruling, U.S. District Judge George H. King determined the campus policy was "unconstitutionally overbroad" and ordered it to be stricken from the college's website.
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The college then told the judge it wanted him to reconsider the case, to which the judge responded, "Defendants do not get a mulligan simply because they chose to retain new counsel." The appeal by the college district to the 9th Circuit followed.
The precedent the college seeks has attracted the attention of other free-speech advocates, including the Foundation for Individual Rights in Education, FIRE, which battles college speech restrictions nationwide.
FIRE has filed a brief in the case arguing the community college's policy "contradicts both decades of legal precedent and the guidance of the federal Department of Educations Office for Civil Rights."
The brief contends if the district police is permitted, "it would gravely endanger the free speech rights of LACCD students and exacerbate the free speech crisis on America's college campuses."
"By continuing to defend an indefensible and unconstitutional speech code with this appeal, LACCD has proven not only that it does not care about its students' First Amendment rights, but that it doesn't care about wasting taxpayer dollars to argue against the Bill of Rights in court," said Will Creeley, FIRE's director of legal and public advocacy. "FIRE is confident that the Ninth Circuit will recognize the impermissible flaws in LACCD's policy and reject this misguided appeal."
The policy the school wants affirmed banishes "generalized sexist statements" as well as "actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men."
"Despite over two decades of federal jurisprudence finding policies precisely like LACCD's unconstitutional, LACCD is shamefully attempting to deny its students the First Amendment rights to which they are legally entitled," FIRE President Greg Lukianoff said. "FIRE's brief explains why the Ninth Circuit must affirm the district court's decision and make LACCD's sexual harassment policy the latest addition to an unbroken string of unconstitutional codes struck down in federal court."
Judge King granted a preliminary injunction halting the enforcement of the policy because of its First Amendment violations. He then refused to grant the college's motion for reconsideration, calling the college arguments "scattershot and disjointed."
Lopez had quoted Romans 10:9, "Because, if you confess with your mouth that Jesus is Lord and believe in your heart that God raised him from the dead, you will be saved."
He told ADF, "Colleges are supposed to be safe for free speech and the discussion of many ideas. What has happened to me is an assault on my constitutional rights. A victory in this case will guarantee that every student who attends the school now and in the future is allowed to freely express their beliefs, religious or otherwise, without fear."
ADF Litigation Staff Counsel David Hacker said at that time if the school cared about free speech rights of students, "they should not desire to pursue enforcement of such a bad policy."
Lopez was participating in a class assignment to give a speech on "any topic" from six to eight minutes.
"During the November, 24, 2008 class, Mr. Lopez delivered an informative speech on God and the ways in which Mr. Lopez has seen God act both in his life and in the lives of others through miracles," ADF said. "In the middle of the speech, he addressed the issues of God and morality; thus, he referred to the dictionary definition of marriage as being between a man and a woman and also read a passage from the Bible discussing marriage."
Those comments led to the outburst from the professor, who canceled the remaining class period and mocked Lopez's faith on his grading review.
"By regulating speech on the basis of its content, no matter how 'disparaging' or 'sexist,' LACCD proposes to appoint itself (or complaining students) the judge of what speech shall be allowed on campus," FIRE official said in the brief. "Such a result cannot be squared with the Supreme Court's pronouncement, issued 'time and again,'" that content discrimination isn't allowed.
It also argued that the college's citation of the state education code wasn't valid.
"The rights enshrined in our nation's Constitution, including the guarantees of the First Amendment, are the highest law of the land, and they cannot be superseded by state statute or regulation," the brief argued.