Last night, the ADF Center for Academic Freedom filed a Petition for Rehearing or Rehearing En Banc with the U.S. Court of Appeals for the Ninth Circuit in Jonathan Lopez’s case against the Los Angeles Community College District.  (The ADF press release is here.)  On September 17, 2010, a panel of the Ninth Circuit ruledthat Mr. Lopez did not have legal standing to challenge LACCD’s speech code, even though a professor, administrator and two students threatened Lopez with punishment under the code. 

Without getting too deep into the legal technicalities, I want to point out one important problem with the panel’s decision:  it creates a circuit split with the Third and Sixth Circuits.  Both of those circuits have addressed whether a student has standing to challenge university speech policies on their face, and both circuits held that the students had legal standing to challenge the policies, on thinner facts than Mr. Lopez’s case.  Those who follow the Supreme Court know that it likes to take cases in which there’s a conflict among the circuits, so that it can resolve the conflict and provide uniformity in federal law.  But often a circuit will rehear a case en banc (meaning all the judges on the court sit on the bench and rehear the case, instead of just a panel of three judges) when a panel’s decision creates a circuit split. 

As it stands now, some students have more rights than others on campus, depending on where in the country they go to school.  But precedent shows that all students should have standing to challenge college policies that chill their ability to speak freely because students must comply with these policies at all times on campus.  For students who live on campus, this is 24 hour-a-day censorship.  And in the case of Jonathan Lopez, it persists.

We will keep you updated on what happens next.