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For 40 years the United States has lived with a variety of government programs that apply preferential treatment based on race or gender or both. These programs have generally been limited to education and public contracting. In April a divided panel of the U.S. Court of Appeals for the 9th Circuit handed down a decision that may provide a foundation for applying preferential treatment to freedom of speech. If it stands, the decision could authorize local governments to set varying limits to free expression based on the race, religion, or sexual orientation of the listener. Preferential treatment has already proved one of the most divisive policies of modern America. This 9th Circuit ruling threatens to radically expand its scope. TWO LOUD T-SHIRTS Harper v. Poway Unified School District grew out of a decision by a San Diego-area high school to permit a student group, the Gay-Straight Alliance, to hold a “Day of Silence” in April 2004. The purpose of the event was to “teach tolerance of others, particularly those of a different sexual orientation,” in the words of an assistant principal. Participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance. Others wore black T-shirts that read NATIONAL DAY OF SILENCE. The Gay-Straight Alliance put up posters “promoting awareness of harassment on the basis of sexual orientation.” Not all students supported the Day of Silence. Tyler Harper arrived wearing a T-shirt that read I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED on the front and HOMOSEXUALITY IS SHAMEFUL on the back. The next day the front of his T-shirt read BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED. On that day, school authorities noticed the T-shirt, judged it to be “inflammatory,” and refused to allow Harper to wear it on campus. When he would not remove the shirt, 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. At the end of the day he 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. This was not an easy case. The school had experienced disruptions and altercations during a previous Day of Silence, and officials were anxious to avoid trouble. Despite his disobedience, Harper was not disciplined in any way. He received full attendance credit for the day he spent confined to the conference room. The 9th Circuit might have denied the preliminary injunction and upheld the school officials’ actions in a number of value-neutral ways. Free speech in public schools is not as broadly protected as free speech outside. The court might have cited the school’s right to restrict any speech, regardless of viewpoint, if it was likely to cause substantial disruption. The court might have cited the high procedural burden of obtaining preliminary injunctive relief in the absence of threatened injury. With the Day of Silence over and no future event imminent, the court might have ruled that Harper had simply failed to meet his burden. But that is not how the 9th Circuit treated Tyler Harper’s appeal. A BAD HAND IN HISTORY Instead, in a 2-1 decision, Judge Stephen Reinhardt used the case to articulate a new concept of free speech regulation. Focusing on the specific anti-gay content of Harper’s T-shirt, he 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.) He then proceeded to establish a new constitutional calculus, under which the protectability of speech would depend on the minority status of the listener. Reinhardt wrote that a different standard should apply to derogatory remarks aimed at “majority groups such as Christians or whites” because “[t]here 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.” Perhaps there is, but it is not a difference recognized in the Bill of Rights. The Supreme Court has upheld, under limited circumstances, the right of states to grant preferential treatment to minorities in access to education and public contracts. In a 2003 decision involving the University of Michigan Law School, then-Justice Sandra Day O’Connor observed that 25 years of racial preferences may be necessary to achieve equality. But she was addressing a state-school admissions policy. When given the chance, voters have regularly rejected such preferential programs. But if, as Reinhardt found, constitutional rights themselves may be allotted to people depending on their minority status, such preferences may be beyond democratic challenge by voters. In his dissent, Judge Alex Kozinski pointed to the practical difficulties of applying Reinhardt’s novel concept. If the pope condemns gay marriage, could a student wear a T-shirt that reads CATHOLICS ARE BIGOTS? On the one hand, Catholics are a minority with a long history of oppression in this country. So they would seem to qualify for Reinhardt’s preferential treatment. But Catholics are also part of the larger Christian faith, which Reinhardt described as having “always enjoyed a preferred social, economic and political status.” Or consider a school district in which blacks constitute a majority, although they are a minority nationally. May a white student wear a T-shirt bearing an anti-black message in a nearly all-black school, since the white student would be a minority in that context? STRONGER RIGHTS FOR SOME? Beyond the problems of defining who receives extra speech protection and who is subject to extra restriction, there is this unsettling thought: If the scope of freedom of speech depends on minority status, what about the other enumerated constitutional rights? Why stop at the First Amendment? The Bill of Rights contains nine more. The Second Amendment protects gun ownership. Are Jews entitled to easier access to guns in view of their history as victims of violence? The Fourth Amendment provides that no property may be taken for public use without just compensation. Are Japanese-Americans entitled to greater monetary compensation in eminent domain cases in light of their forced relocation during World War II? For each component of the Bill of Rights, one can make a historical case for granting some groups greater entitlement than others. If the 9th Circuit’s decision stands, and if assorted factions vie for the title of “historically oppressed minority group,” the courts may end up facing just such cases. The Supreme Court displays a particular interest in the 9th Circuit’s constitutional adjudication. While the 9th Circuit is only one of 13 federal appellate courts, its rulings account for one-fifth of the high court’s docket. Last year the Supreme Court reviewed 18 decisions from the 9th Circuit; it reversed or vacated 15 of those decisions, 12 by unanimous votes. Harper v. Poway Unified School District is not over. Harper has requested an en banc review, which is granted in cases involving questions of “exceptional importance.” The question of whether freedom of speech may be allotted based on race, religion, or sexual orientation would seem to qualify for such examination. If en banc review is denied, or if the panel’s ruling is upheld, then the Supreme Court may well choose to have the last word on the matter.
Lawrence J. Siskind of San Francisco’s Harvey Siskind specializes in intellectual property law. This commentary originally ran in The Recorder , an ALM publication in San Francisco.

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