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It was a minor aside � a footnote, in fact � to his dissent from a contentious opinion. But one sentence from Ninth Circuit Judge Alex Kozinski encapsulated his 95-page debate with frequent foil Judge Stephen Reinhardt on whether a Poway high school could prevent a student from wearing an anti-gay T-shirt. “There is the question of whether we should tolerate intolerance, a question as imponderable as a Mobius strip,” Kozinski wrote in his dissent to a Thursday opinion written by Reinhardt. Imponderable, maybe, but certainly representative of the way the judges argued around and around in their opinions. Reinhardt’s opinion took on the difficult First Amendment question of when student speech impinges on classmates’ rights, and touched on the long-contentious issue of whether sexual orientation provides the same basis for protection from persecution as race or religion. The answer to the last question is a resounding “yes,” Reinhardt wrote in a majority opinion joined by Judge Sidney Thomas. “Speech that attacks high-school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn,” Reinhardt wrote, citing studies that say gay students suffer from feeling excluded. He then equated the current fight over gay rights to previous debates about the treatment of African-Americans and Jews, arguing that school administrators were justified in forcing sophomore Tyler Chase Harper to remove a T-shirt protesting a student gay rights day. The shirt, which said “Be ashamed, our school has embraced what God has condemned,” on the front, and “Homosexuality is shameful” on the back, was substantially disruptive, and an “impermissible intrusion on the rights of gay and lesbian students,” Reinhardt wrote. Kozinski and Reinhardt both have longstanding records as First Amendment advocates, but their discourses here showed little agreement, even on minor points. In fact, they spent several pages attacking one another’s reasoning, and using footnotes to encourage one another to watch movies supporting their points. Reinhardt even brought up a dissent Kozinski wrote as recently as last week to point out what he saw as inconsistencies in reasoning. In brief� and very little about the opinion was brief � Reinhardt said that in a school environment, speech attacking homosexuality can disrupt education, and may thus be silenced by administrators. But such power has limits, he said. “T-shirts proclaiming ‘Young Republicans Suck,’ or ‘Young Democrats Suck,’ for example, may not be very civil, but they would certainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer’s First Amendment rights,” Reinhardt wrote. That’s the kind of reasoning that these days will elicit cries of “activist judge.” “This is a classic example of social engineering and manipulating the law,” said Kevin Therion, a lawyer with the Alliance Defense Fund who argued the case for Harper. He also questions Reinhardt’s presumption that gay students deserve the protections of an ethnic or religious group. “That’s a large political hot potato,” he said. “Whether sexual orientation is something you choose.” Therion � who said he’s going to seek en banc review of the opinion, Harper v. Poway Unified School District, 06 CDOS 0329 � says Reinhardt went out on a limb to protect a population to which he’s sympathetic. “This is a clear example of an activist judge,” he said. Kozinski may not agree with that assessment, but he certainly made it clear he felt Reinhardt went overboard in citing studies that show the detrimental effects of intolerance on gay students. “The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law,” Kozinski wrote. “It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future.” Jack Sleeth Jr., who argued the case for the Poway Unified School District, cheered the opinion, but agreed innumerable problems remain for school officials. “It’s going to continue to be difficult for school administrators to teach and administer and also make sure they don’t let one group of students trample on another,” he said..

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