Reinhardt Rides Again

With Judge Reinhardt of no "Under God" in the Pledge fame leading the charge, a three judge panel of the Ninth Circuit has ruled 2-1 that K-12 students have free speech only insofar as that speech is the kind of speech that's OK with the judges.

The case invovles a student, Tyler Harper, who wore this T-shirt to school after a school-sponsored gay rights day. On the front, it says, "Be Ashamed, Our School Embraced What God Has Condemned."

Seems like a reasonable and reasoned response to a day of sloganeering in support of gay rights, but the court disagreed. Says Volokh:

The majority "reaffirm[s] the importance of preserving student speech about controversial issues generally." But, according to the constitution, this First Amendment principle somehow omits speech about controversial issues having to do with race, religion, or sexual orientation.

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.

In other words, one can argue that homosexuality is right, but one can't argue that it's wrong.

The court also specifically mentioned Confederate flags, meaning angry or provocative speech doesn't have to be a part of it; symbolism is enough. Volokh points to the Mohammed cartoons as the next to fall under this reasoning; I worry more about students' right to wear crosses.

A San Diego Union Trib article from earlier in the legal battle included this:

[School attorney] Chase could have put his view across in a positive way, he said, perhaps with a slogan like, "Love the sinner, hate the sin," but crossed the line with what Sleeth described as a negative saying.

"This is a direct attack" on gays, Sleeth said.

Under the Ninth Circuit opinion, if a gay student wore a T-shirt saying "Breeders are #$!@& idiots who are destroying the planet," the direct attack would go unpunished. That's because the comments are not "directed at students' minority status such as race, religion, and sexual orientation"

What Reinhardt and his ilk are accomplishing is the creation of an over-protected class that will go through school and life as if they were wrapped in cushioning packing material -- no experience of push-back to their ideas, no need to question their belief systems, and an imprimatur, bestowed by the federal government, that they are better than OK, they are valued and protected just the way they are.

No one should have to suffer that. No one should be condemned to have what they believe in high school go unchallenged for the rest of their lives.

And therefore, no one should tell Tyler Harper to take off his T-shirt.

hat-tip: memeorandum
Tags: Ninth Circuit, Reinhardt, Tyler Harper, Gay rights, Gay, Lesbian