Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding D.C. No. 2:09-cv-00995-GHK-FFM.
The opinion of the court was delivered by: Ikuta, Circuit Judge
Argued and Submitted March 3, 2010-Pasadena, California
Before: Ronald M. Gould, Sandra S. Ikuta and N. Randy Smith, Circuit Judges.
Today we consider a student's First Amendment challenge to a community college sexual harassment policy. First Amendment cases raise "unique standing considerations," Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003), that "tilt[ ] dramatically toward a finding of standing," LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000). Despite this lowered threshold for establishing standing and the disturbing facts of this case, we conclude that the student failed to make a clear showing that his intended speech on religious topics gave rise to a specific and credible threat of adverse action from college officials under the college's sexual harassment policy. Because the stu- dent failed to carry the burden of proving he suffered an injury in fact, he does not satisfy the "irreducible constitutional minimum of standing" necessary to challenge the policy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
For the limited purpose of reviewing the preliminary injunction at issue, the salient facts are undisputed.
In the fall of 2008, plaintiff Jonathan Lopez was a student at Los Angeles City College (LACC), which is one of the public colleges within the Los Angeles Community College District (the District). At the time Lopez attended LACC, the District had promulgated a sexual harassment policy comprising a chapter of the District's "Board Rules and Administrative Regulations," as authorized under state law. See Cal. Educ. Code §§ 66300, 70902. LACC is subject to the District's regulations, including its sexual harassment policy. Two sections of this sexual harassment policy are relevant here. Section 15001 sets forth the District's general policy on this issue, stating in relevant part:
The policy of the Los Angeles Community College District is to provide an educational, employment and business environment free from unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communications constituting sexual harassment. Employees, students, or other persons acting on behalf of the District who engage in sexual harassment as defined in this policy or by state or federal law shall be subject to discipline, up to and including discharge, expulsion or termination of contract.
Section 15003(A) defines "sexual harassment" as including:
Unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the workplace or in the educational setting, under any of the following conditions: . . . (3) The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment.*fn1
According to the policy, the District's Director of Affirmative Action Programs oversees the implementation of the sexual harassment policy, but may delegate these duties to an individual Sexual Harassment Compliance Officer. District officials may take disciplinary action only in accordance with due process rights as well as any applicable collective bargaining agreement. For students, "disciplinary action" ranges from verbal warnings to expulsion. For employees, "disciplinary action" ranges from verbal warnings to dismissals. According to Allison Jones, LACC's Dean of Academic Affairs, neither LACC nor the District has enforced the sexual harassment policy against any teacher, student or employee. Lopez does not dispute this statement.
Sections 15001 and 15003 of the policy appear in various other official documents. For example, the quoted portion of Section 15001 appears twice in the LACC student handbook. The "Rules for Student Conduct" section of the handbook states that "[s]tudent conduct in all of the Los Angeles Com- munity Colleges must conform to District and [LACC] rules and regulations," and that violations will result in disciplinary action. In addition, the website of the District's Office of Diversity Programs contains relevant portions of Section 15003, and gives some examples of sexual harassment, including "[v]erbal harassment," "[d]isparaging sexual remarks about your gender," "[d]isplay of sexually suggestive objects, pictures, cartoons, posters, screen savers," and "[m]aking unwelcome, unsolicited contact with sexual overtones (written, verbal, physical and/or visual contact)." The website also offers "[s]imple guidelines for avoiding sexual harassment," which include the admonition, "If [you are] unsure if certain comments or behavior are offensive do not do it, do not say it." The LACC Compliance Office's website likewise includes the relevant portions of Section 15003, and defines one form of sexual harassment as "generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men. Examples include insulting remarks; intrusive comments about physical appearance; offensive written material such as graffiti, calendars, cartoons, emails; obscene gestures or sounds; sexual slurs, obscene jokes, humor about sex."
During the fall semester, Lopez was a student in Speech 101, taught by Professor John Matteson. For one assignment, Matteson directed his students to make an informative speech on a topic of their choosing. Lopez is a devout Christian who believes, as a tenet of his faith, that he must share his religious beliefs with others. For this assignment, Lopez chose to speak about God and the ways in which he had witnessed God act both in his life and in the lives of others. In the course of giving his speech, Lopez read a dictionary definition of marriage as being a union between a man and a woman, and read two verses from the Bible.*fn2 After Lopez made these statements, but while still in the middle of his speech, Matteson interrupted Lopez, called Lopez a "fascist bastard," and refused to allow Lopez to finish his speech. Matteson told the class that anyone who was offended could leave. When no one left, Matteson dismissed the class. In lieu of giving Lopez a grade, Matteson wrote on Lopez's speech evaluation form, "[a]sk God what your grade is" and "pros[elytising] is inappropriate in public school."
The day after this incident, Lopez met with Jones to complain about Matteson's actions. As Dean of Academic Affairs, Jones supervises the LACC faculty and oversees certain student matters and the policies and procedures that govern LACC. Jones told Lopez to put his complaint against Matteson in writing. When Lopez delivered his written complaint to Jones, Matteson observed this interaction. Matteson subsequently threatened Lopez, stating that he would make sure that Lopez was expelled from school.
On December 2, the day after this threat, Lopez turned in another Speech 101 assignment. Lopez's paper contained a list of proposed topics for a persuasive speech, including one on how to "exercise your freedom of speech right," which would include a discussion of how one should "[a]lways stand up for what you believe in." Matteson gave Lopez an "A" for this assignment, but wrote the following below the ...