The 9th Circuit’s Wake-Up Call

Campus speech codes are so ‘90s. Judicially rebuked and roundly ridiculed, they seemed to have become a dim and distant bad memory.

But not so fast…. In a hotly-contested 2-1 decision, the 9th Circuit Court of Appeals recently brought the old bogeyman back to life. The case, Harper v. Poway Unified School District, follows from a high school’s attempt to discipline a student who wore a shirt emblazoned with biblical messages about homosexuality in response to a gay rights event sanctioned by the school. While the discipline was mild, student Chase Harper nevertheless thought something important was at stake and filed suit, claiming that the school had abridged his rights under the First and Fourteenth Amendments.

The 9th Circuit asserted that Harper’s complaints were altogether without merit. Implicitly comparing his conduct to that of religious and racial bigots, the two judges in the majority offered not a glimmer of hope that Harper could succeed at trial.

The most relevant Supreme Court precedent for this case is Tinker v. Des Moines, where the Court said that student speech could reasonably be restricted if the expression “substantially interfere[d] with the work of the school or impinge[d] upon the rights of other students.” Nevertheless, the Court also said that “[i]n order for the state … to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” In other words, causing “discomfort and unpleasantness” doesn’t violate anyone’s rights.

Two of the judges on the 9th Circuit disagree. In the Harper case, the judges have created a new right “to be free from certain kinds of offensive viewpoints,” in the words of First Amendment scholar Eugene Volokh. The feeling that might be engendered by the message on Harper’s shirt is, they say, akin to what African-American students consigned to segregated schools felt. According to one of the two judges, Judge Stephen Reinhardt, a school that permits students to wear messages like, “I will not accept what God has condemned” and “homosexuality is shameful, Romans 1:27,” in effect tells gays and lesbians that they are second-class citizens, depriving them of an equal educational opportunity.

Perhaps when he gets up a full head of steam, Judge Reinhardt will follow to its conclusion the logic of his comparison of student t-shirts to segregated schools. Not only may schools limit such student expressions, but they must, else psychologically vulnerable students will not live up to their full potential.

The limitations he articulates here are restricted to “instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” that occur in the elementary and secondary settings.

The good news is that such restrictions on speech aren’t justified in higher education. That vampire is still in the coffin. The bad news is that viewpoint discrimination is permitted. The school can protect minorities without extending the same, er, courtesy to majorities.

Eugene Volokh captures nicely the disparate ways in which the two sides of the debate are to be treated: “The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate ‘about controversial issues’ wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it’s not important to preserve student speech that expresses that view.”

But education, Judge Reinhardt might respond, is all about viewpoint discrimination, between truth and falsehood, between tolerance and intolerance. “[P]ublic schools may,” he says, “permit, and even encourage, discussions of tolerance, equality and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred.” “This is true,” he says, “even if the message conflicts with the views of a particular religion. A public school’s teaching of secular democratic values does not constitute an unconstitutional attempt to influence students’ religious beliefs.”

Those who complain about the “establishment” of “the religion of secular humanism” or about judicial partisanship in our culture war couldn’t ask for a better poster child. Judge Reinhardt’s opinion exudes hostility toward religion—toward morally conservative religion—which he calls homophobic and compares to the worst sort of racial bigotry. What was that about viewpoint discrimination?