I have an ongoing dialogue with an attorney about whether judicial activism really exists. This should settle our debate. In a 2-1 decision, the U.S. 9th Circuit Court of Appeals said that the T-shirt above was not permitted in a local school district because it was both injurious to gay and lesbian students, and further, that it interfered with their right to learn. I heard all the outrage on the right yesterday and figured it was much ado, figured the kid was probably picking fights or something, and figured this was just another example where the Religious Right selected the wrong case to stand behind.
Well, I was wrong. Stand back, because Harper v. Poway Unified School Dist. is, in the realm of judicial activism, as good, or as bad, as it gets.
A crude primer to get us started - schools are permitted to restrict the speech of students in four basic scenarios: 1) lewd or vulgar language; 2) “school-sponsored” language like school newspapers; 3) speech that infringes upon the rights of another student; and 4) speech that causes a substantial disruption. In Harper, the Court focused on the 3rd one stating speech above like “Homosexuality is shameful, Romans 1:27″ equates to an infringement upon the rights of a gay student.
Here’s the rub: the Court bases its understanding upon its own belief that homosexuality should be treated the same as race and religion: groups currently treated as minorities or “suspect classes” under current Supreme Court jurisprudence. For example, the Court states,
“[a]ccordingly, we limit our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion or sexual orientation.” Harper, op. p. 31.
And again,
“[n]or…do we believe that…minority students should be required to confront and refute demeaning verbal assaults on them.” Harper, op. p. 29.
It’s the point of the whole opinion. Well, that’s nice and all, but the Supreme Court has clearly refrained from providing such treatment to homosexuals. The Ninth Circuit, therefore, seeks to impose upon its jurisdiction a standard different from that which the Supreme Court has plainly refused. That, my friends, is judicial activism. Lower courts are required to abide by the Supreme Court; they are not permitted to disregard established jurisprudence in an attempt to place something on the SCOTUS’ docket for review.
Think I’m reaching so far? Statements like these in the Harper opinion reveal the impetus behind the activism.
Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful. Harper, op. p. 27).
Is that a legal opinion?
In sum, a school has the right to teach civic responsibility and tolerance as part of its basic educational mission; it need not as a quid pro quo permit hateful and injurious speech that runs counter to that mission. Harper, op. p. 38.
I see, so a student’s display of his religious beliefs is hate speech, got it. But although a student’s display of a restatement of a passage from the Bible is hate speech, the Court is careful to remind us that not all T-shirts would be prohibited:
“T-shirts that denigrate the President, his administration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq [would be permissible.]” Harper, op. p. 38.
I didn’t make that up. Almost sounds like an invitation, doesn’t it? This isn’t some Paul Krugman editorial, this is a court of law that is binding upon the people - this is activism.
Tip o’ the cap to the Mississippi Boys