John Leo

This ruling creates a new and large category of viewpoints excluded from First Amendment protection. It said that "derogatory and injurious remarks directed at students' minority status such as race, religion and sexual orientation" can be banned, but not other controversial messages. Based on the ruling here, criticism of illegal aliens might be banned too, says Eugene Volokh, professor of law at UCLA. Volokh argues that the phrase "such as" in the ruling indicates that other groups might be granted freedom from criticism at schools.

Thus homosexuality, a subject up for political and moral debate, can be argued in the T-shirt wars only on the pro side, not on the con. Presumably no minority religious opinion can be criticized, such as the Islamic argument that cartoons of Muhammad are out of bounds. But pictures of Christ in urine would be allowed, because Christianity is the majority faith in America. Reinhardt and Thomas follow the lead of the politically correct left in carving our special protection based on hostile environment threats to self-esteem and membership in "minority groups that have historically been oppressed."

In dissent, Judge Alexander Kozinski said he has "considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today," meaning that nothing in state law, federal law or common law supports it. The majority clearly says, he argues, that not all statements that demean other students can be banned by schools, only demeaning statements based on minority status. If the pope condemns gay marriage, presumably gays could wear "Catholics are bigots" T-shirts. But Catholics could respond with their own polemical T-shirts only if the school or the courts ruled they are a traditionally oppressed minority within Christianity and not just part of a monolithic Christian majority.

Double standards based on levels of historic oppression eventually all come to grief. If this case goes to the Supreme Court, the eccentric 9th Circuit ruling is very likely to be overturned. It will be one more reversal for the most reversed district court in the nation.


John Leo

John Leo is editor of MindingTheCampus.com and a former contributing editor at U.S. News and World Report.

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