9th Circuit was wrong to let school censor student’s T-shirt

By August 23, 2006

It is axiomatic in a country that values and protects the right of free speech and academic freedom that the society has to be willing to put up with a certain amount of personal discomfort if speech and thoughts are in fact going to remain free. There is no place where this is supposed to be more true than in the academic setting, especially among older students in high school and college. This is the main reason why the recent opinion of the 9th U.S. Circuit Court of Appeals, in a closely watched academic freedom case, is so troubling.

It is true, of course, that school administrators are allowed to be more restrictive at the high-school level than at the college level. But any precedent that endows school administrators with wide latitude to censor public high schools provides college censors with a dangerous opening to argue for expanding censorship in higher education. In July, the full membership of the 9th Circuit refused to rehear en banc the case of high-school student Tyler Chase Harper. Harper v. Poway Unified School District, 2006 DJDAR 10022. Harper had worn to school a T-shirt with the message “Be Ashamed, Our School Has Embraced That Which God Has Condemned” emblazoned on one side, and “Homosexuality Is a Sin. Romans 1:27” on the other. Harper’s T-shirt was not some example of hate speech coming out of the blue. Rather, it was in response—a protest—to a school-sponsored Day of Silence devoted to opposing what the school officials deemed intolerance against gay, lesbian, and transgender teenagers. Rather than see Harper’s T-shirt as a form of protest against the official point of view embodied in the Day of Silence, school officials insisted that Harper’s expression was harmful and disruptive, and they demanded that Harper remove the shirt. After refusing to do so, Harper was held in detention for the remainder of the day.

Harper sued, believing that, even as a high-school student, he had the right to express ideas, even unpopular ideas that might deviate from the official viewpoint. Yet in April, a panel of the 9th Circuit ruled 2-1 against Harper and, in the process, weakened high-school students’ right to free speech. The vigorous expression of a point-of-view at odds with the official, prevailing point of view was seen as disruptive, as a form of harassment of gay students. Only one point of view, the official one, was to be allowed on the Day of Silence.

In his short-sighted majority opinion, Justice Stephen Reinhardt, well-known as one of the nation’s most politically correct federal appellate-court judges, bizarrely interpreted a prior Supreme Court decision, Tinker v. Des Moines, 393 U.S. 503 (1969), when he determined that Harper’s T-shirt constituted an “invasion of the rights of others.” In effect, Reinhardt expanded the Supreme Court’s definition of freedom from such a personal invasion to include the right of minorities (and only minorities, as he clarifies) to go about their day unoffended. In doing so, Reinhardt eschewed the fundamental First Amendment notion that the antidote to what someone might consider bad speech is not censorship or silence—but more good speech in response.

In a blistering dissent, Judge Alex Kozinski, a libertarian and possibly the single least politically correct judge of our day, attacked the majority’s reasoning: “I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning. … [T]he fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law.”

Indeed, in his majority opinion, Reinhardt does more than create a right to suppress viewpoints that minority students (and administrators) deem offensive and detrimental to their “sense of self-worth.” The Harper decision paves the way for blatant viewpoint discrimination in high schools across the nation, whenever the censored message touches upon issues that minorities hold dear. What members of the majority fail to understand is that, in the long run, members of historically unpopular or underprivileged minority groups have achieved legal equality in our society not by suppressing free speech but by vigorously exercising it. The 9th Circuit is doing these groups, and all of us, no favors.

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