The 9th Circuit Blows It

via The Volokh Conspiracy

While claiming to reaffirm “the importance of preserving student speech about controversial issues generally”, a 2-1 decision has asserted that some opinions are more equal than others.

These two, Thomas and Reinhardt, have asserted that on controversial topics touching on “minority status such as race, religion, and sexual orientation”, which essentially means only certain races, religions, and sexual orientations, the non-minority viewpoint has no first amendment protection.

The decision

The disent

The conclusion to draw here is that a disruptive event in a school, even one with a history of disruption, is permissible if it supports a minority, and that any and all contradictory speech may be foreclosed because it might cause a disruption.

It violates the right to not be offended, that attaches only to approved ‘minorities’.

Update: This analysis of another 9th decision that fits the pattern.



  1. VenBede said,

    April 23, 2006 @ 11:57 am

    “The conclusion to draw here is that a disruptive event in a school, even one with a history of disruption, is permissible if it supports a minority, and that any and all contradictory speech may be foreclosed because it might cause a disruption.”

    The disruption was caused by those opposed. Nowhere did the Court hold that ALL contradictory speech be forbidden. Only speech which would reasonably be expected to cause a disturbance.

    You have drawn an improper legal conclusion regarding the decision. It has reiterated what is already established precedent, i.e. free speech for students in public schools means something different than free speech for adults in a setting outside of public schools.

    I am not so sure these kinds of activities involving controversial subjects should be held at public high schools either. However, I think the Court ruled in accordance with precedent and made a reasonable decision that certainly does not mean what you have interpreted it to mean.

  2. Dave said,

    April 24, 2006 @ 9:30 am

    So the ‘Day of Silence’ that caused disruption and altercations in 2003 was proper to allow again in 2004, but a single T-shirt in response that did not cause a disruption or an objection must be suppressed.

    The majority decision creates a new exception to free speech in schools (it is not a simple application of precedent) based on the content of the speech.

    In the decision, p14, the court relies upon a provision “that schools may prohibit speech that intrudes upon the rights of other students”. They then identify that the right involved is the right “to be secure and let alone”. The court then further limits this right (on p20) to those students “who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion or sexual orientation”. On p21, they further restrict the protected class to “members of minority groups that have historically been oppressed”.

    If this is not a content-based restriction of speech to only one side of a controversial issue, then what is it? I see speech by approved minorities protected, and speech by anyone who disagrees with the minority being banned.

    If heterosexuals and Christians are not allowed to speak out in response when speech intrudes upon their right to be secure and let alone, then why should the subject be allowed in the school at all? This amounts to an official endorsement and protection for one side of a controversy, with official suppression of all dissenting speech.

    VenBede, I think you are assuming too much when you claim “The disruption was caused by those opposed.” Unless you are claiming that the ‘Straight Pride Day’ was itself disruptive, you must be referring to “some students were asked to remove their shirts (at Straight Pride Day) and did so, while others had an altercation and were suspended for their actions”. This could have been caused by the demonstrating students, by a violent reaction on the part of those who disagreed with the message, or by a ham-handed attempt by the school administration to suppress a message that they disagreed with. There are not enough facts available to properly assess blame in the manner you seem to be doing.

    Footnote 16 at the bottom of p17 is also on point. In the very decision that the 9th is relying on, “silent, passive expression of opinion unaccompanied by any disorder or disturbance” is protected speech in the schools. Now the 9th has appended, “unless it offends a protected minority”.

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