Eugene Volokh was blogging today about the Ninth Circuit’s decision in Harper v. Poway Unified School District. Reinhardt’s majority opinion is here; Kozinski’s dissent is here. This case has the feel of a grant to me, at least if the Ninth Circuit doesn’t rehear it en banc. Either way, I suspect today’s opinions won’t be the final word.
Orin,
Are you saying that the Court is unlikely to take the case if it does not go en banc? Given the absence of a split, how do you measure the “importance of the question” likelihood of a grant? I have always found that mystifying.
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The decision didn’t rule on the merits but just affirmed a denial of a preliminary injunction. I doubt that’s cert.-worthy, or even en banc-worthy, even on the Ninth Circuit.
It seems like using the word “if” in place of “unless” makes the post make a tad more sense.
As for the “importance of the question,” the fact that it directly deals with the first amendment combined with the fact that it takes on a societally controversial issue (anti-discrimination laws, gays, and their opposition) certainly gives it an air of controversy…
It would be a shame if the Court granted, since they would probably grant to reverse.
Let me start off by saying that, as a former public school teacher, I learned quickly that supressing student speech, and even viewpoint discrimination, is an essential part of any classroom manager’s role. I would censor student speech which was insulting or derogatory to other students and teachers, and not censor speech which spoke well of them. I would ban six point stars which were displayed in solodarity with a street gang, but not ban six point stars displayed in solodarity with Judaism. I would censor students who spoke out of turn, who made off-topic comments, or who said anything at all during an exam. And I certainly would not have thought twice about sending any child home who wore a shirt attacking members of a race, gender, religion or sexual orientation as a class. Anyone who thinks a classroom would be anything short of chaos without censorship and viewpoint discrimination is kidding themselves.
The controlling case for regulation of schoolroom speech is, of course, Tinker, which held that districts may only supress speech which is disruptive to the learning environment. I personally cannot imagine anything more disruptive than a student who declares membership in an immutable class to be “shameful.” It’s a message that’s designed to stir up anger and resentment and which will do little but distract many students from their studies.
Do the merits of this case turn on whether homosexuals are an “immutable class”? Although the second paragraphs of Ian’s comment and the last two paragraphs of Kozinski’s dissent highlight part of the difficulty here, I think the question is the extent of the Tinker standard.
I’m certain that Ian can imagine things more disruptive to the learning environment than offensive T-shirts. And I think that’s Kozinski’s point. The T-shirt isn’t blocking the doorway to the classroom, it’s not making any noise, it’s not physically striking anyone. It’s just sitting on another student’s torso, quietly offending. If that’s not allowed, then it’s hard to see what’s left of the First Amendment in public schools.
I think it is going a little far to label homosexuality as entirely genetic–which is not to say it is entirely a choice either.
But there is another kind of behavior that falls into the same category: criminality. Many criminals are genetically predisposed to violence or unethical conduct. What about a shirt condemning that “immutable” characteristic?
What if criminality were entirely immutable? I don’t think we’d condemn criminals any less. So what’s different here? We all agree criminality is something to be opposed.
Labeling something immutable and walking away is begging the question.
Schools should teach people to persevere; teach people not to be offended; teach them that society’s disapproval is something worth considering but that society can be wrong too.
What would the effect on the Court’s consideration be by the fact that the ninth circuit didn’t consider the district court’s disruption rationale? The decisions seems quite supportable on that theory. The Court could grant cert and reverse the ninth circuit on the infringing-the-rights-of-others rationale, but if it or the ninth circuit would reach the same decision using Tinker’s other prong, what is the point?
You know, as soon as I read about this case I knew Orin would have a post on it. I too thought “this is an obvious grant.” SCOTUS looks for splits within panels, splits within a Circuit, splits among Circuits, and splits among state Supreme courts, i.e., confusion. It also looks for inconsistent agency applications, judicial formulations, and what the Solicitor General thinks — i.e., the need for a clear and uniform national rule. What kids can wear on their tee-shirts in public school is just such an issue.
Here you have a noted and respected jurist disagreeing with a notorious jurist in a First Amendment case (arguably, the most important kind of constitutional case). Unless the case is heard enbanc and affirmed unanimously, it looks like a very, very high chance of grant.
The major point would be consistency. The Supreme Court has an obligation to ensure consistent application of law. Though the decision would be the same, allowing (possibly) flawed reasoning to remain authoritative could negatively affect future decisions. Any court of which the 9th circuit maintains mandatory authority would be bound to rule similarly or in some way distinguish the case. The Supreme Court would prevent that from happening. Decisions have a much broader application than just the particular facts in the particular case.
Oh, and the live issue is the facial challenge, which the majority seems to have overlooked and K picked up on.
Reading the Harper decision, I noticed it met some aspects of the Kerr test for granting certiorari — Reinhardt wrote it, and the panel was divided. There hasn’t yet been a call for rehearing en banc, so there hasn’t been a dissent from denial of rehearing en banc by some group of more conservative judges. But it wouldn’t surprise me if that eventually happened.
I know it’s easy to beat the Ninth Circuit’s dead horse. What is it about the Kerr criteria that were so spot-on? In an ideal world, I’d like to think that only a legal error serious enough to warrant the Court’s correction would lead to a cert. grant, and that the only reason the Ninth Circuit’s cases are reviewed so frequently is that it carries a disproportionately large burden of the cases in the federal appellate system. But the Court occasionally affirms cases — even those of the Ninth Circuit — and so this can’t be all there is to granting cert. Is something awry in San Francisco, or is it an east-coast-west-coast thing, or what?
This will get cert I believe but I think the court will dance on it as they have with other first amendment hot potatoes such as flag burning and come up with something that implies that a school board can dictate student dress and they will not have to rule on the underlying speech issue. Otherwise it would be tough for them not to reverse.
In the comments above it seems that the rational maybe be justifiable, ie. preventing classroom disruptions which is the schools obligation, but how is that in line with the theory that the most protected speech is that which is most hateful to us? I believe the case facts were that the shirt was in response to a pro homosexual rally. If that speech was offensive to this student, he has as much right to supress them as they do him.
I never said anything about the need for a clear and uniform rule only applying to the facts of one case. The point of mentioning what kids wear in public schools — across the nation — is that it goes to administrative discretion acorss the nation. That isn’t one narrow set of facts, but a confusing medley of possible contexts that requires a clear and uniform national rule. You can have consistently confusing and consistently disaparate tests; the Supreme Court doesn’t step in to create consistent confusion.
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Gorgonzola,
The Court doesn’t care about splits within a panel or splits within a circuit. It cares about splits among the circuits, and then only after the circuits have had a chance to mull the question over for a while. A question only considered by two circuits often isn’t enough for a grant.
For cases like this where there is no split, the petitioner will have to rely on the importance of the question. While this is a First Amendment issue, there are lots of First Amendment issues that are denied every term, and other 9th Cir. First Amendment cases in recent years have wound up DIGed (Nike v. Katsky, Newdow). Other cases are important because they involve billion dollar verdicts or affect whether thousands of people get to stay in the country or whether thousands of people will go to jail because of a particular kind of search. What a high school student can wear on a T-shirt just doesn’t seem to be that important in the grand scheme of things.
And if you think that a case other than one a court holding a federal law unconstitutional is an “obvious grant,” you haven’t been watching the Court very long.
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