Circus Maximus

…Conservatives have long referred to the Ninth Circuit Court of Appeals as the “Ninth Circus Court of Appeals.” Sometimes it’s just because the court rules against a conservative idea; other times—like recently—it’s a term that fits.

…Attorney Lawrence Siskind recently detailed a disconcerting free speech case, Harper v. Poway Unified School District, in which high school student Tyler Harper had the Ninth Circuit Court rule against him, 2-1. Unfortunately, the court’s reasoning on the ruling was more troubling than the actual case. Mr. Siskind explains:

Harper v. Poway Unified School District grew out of a decision by a San Diego area high school to hold a “Day of Silence” to “teach tolerance of others, particularly those of a different sexual orientation” (in the words of its Assistant Principal).

[...]

Not all students supported the Day of Silence. Tyler Harper arrived wearing a T-shirt reading “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED” on one side, and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’” on the other. The next day, his T-shirt read: “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED.” School authorities considered the T-shirt “inflammatory” and refused to allow Harper to wear it on campus. When he would not remove it, they confined him to a school conference room. He spent part of the day doing homework, and part discussing the Bible and the T-shirt with school officials and a deputy sheriff. After the last period, Harper was instructed to proceed directly off campus.

Harper sued the school district on First Amendment and other grounds. He sought a preliminary injunction barring the district from “continuing its violation of [his] constitutional rights.” After the district court denied the motion, Harper appealed.

…As previously stated, Harper lost the appeal. Mr. Siskind, in his piece, points out that the Ninth Circuit Court could have said that its ruling was derived from some judicial basis. Instead, the court opinion shows us that the appeal was turned down not for any legal basis, but for reparations. From Mr. Siskind:

Focusing on the specific anti-gay content of Harper’s T-shirt, [Judge Stephen Reinhardt] ruled that schools may restrict “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” In a footnote, he wrote that the court would “leave...to another time” the question of limiting derogatory remarks aimed at gender. But Judge Reinhardt proceeded to establish a new constitutional calculus, under which the protectability of speech would depend on the minority status of the listener.

Judge Reinhardt wrote that a different standard should apply to derogatory remarks aimed at “majority groups such as Christians or whites” because “there is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status.”

…Who needs a silly little thing like a constitutional amendment getting in the way of a ruling when you can just as easily cite revenge?

Source: TCS Daily