Saturday, April 22, 2006

Living Constitution Suddenly Braindead

One might expect a persistent and rather well-practiced movement in American jurisprudence, dedicated mainly to inventing schema of rights, inventing constitutional definitions, inventing legal precedent, to have by now evolved into something remotely inventive. Not so, ironically, when it comes to that piece of constitutional text which jurists of virtually every conviction agree is the basic axiom on which the document bases its entire argument for political rights, the First Amendment. The Ninth Circuit Court, that mass producer of dubious legal logic, has just ruled that a San Diego public school district was within its rights to bar one of its students, Tyler Harper, from wearing to school a t-shirt displaying a biblical message decrying homosexuality during a gay awareness event at the school. According to the school's assistant principal, the Day of Silence sought to "raise other students' awareness regarding tolerance in their judgement [sic] of others", and she believed the shirt was "inflammatory under the circumstances and could cause disruption in the educational setting." The principal helpfully explained to Harper that he was being ordered to remove the shirt to preempt "the threat of physical violence." Harper filed suit against the school in June of 2004, and after appealing his case all the way to the Ninth Circuit, the decision upheld the district court claim that Harper's case "failed to demonstrate a likelihood of success on the merits of his claim that the School violated his First Amendment right to free speech", arguing as such on the grounds that the speech in question "intrudes upon...the rights of other students."

The dismissiveness on the part of the court of Harper's free speech claims is only one link in the chain of seemingly implausible and unconstitutional arguments this case exhibits. It is virtually impossible in this decision to locate a logically constistent conception of individual rights implemented by Judge Reinhold, who authored the opinion. Just try to sort out the actual premises regarding what rights are presumably at stake here. As to the positive argument, we have, implicitly, two constitutional claims in play - the individual's right to free public education, and the right to be shielded from invective by unspecified official action, where such speech might be construed as a distraction from the learning process. Suffice it to say that the fact that the first claim has survived judicial muster for so long puts the approval of the second in fairly proper context. But the "cooperation" of these two "rights" certainly puts the explicit constitutional guarantee of freedom of speech in as precarious a place as can be imagined. Judicial moves like this seem to respond to this by saying, "well, what's the problem?" What, indeed? No problem that a court can, in one motion, affirm a right's status as such, only to foreclose on that right's prospect of actually being enforceable. The fluid motion is really stunning and can be summarized in a single sentence. The assurance of a student's free public education (not a constitutional right) demands protection from personal humiliation and distress (not a constitutional right) against another student's offensive speech (certainly a constitutional right.) Sorry, can't resist: 'Two wrongs don't make a right.'


This court has come under repeated castigation for advancing the odd suggestion that if rights are a good thing, more of them is a better thing. Judge Reinhold, with this decision, has surely done away with the first half of that syllogism.

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