Tim  Chandler

In a complex but welcome decision on one of the major student First Amendment cases of recent years, the U.S. Supreme Court this month effectively took a page from the old Saturday Night Live scripts featuring Gilda Radner’s addled news commentator, Emily Litella.

Litella inevitably closed her newscasts with an extended rant on some subject, only to realize, at the crescendo of her commentary, that she had misapprehended the question that had launched her virulent invective in the first place. Embarrassed, she would flash the audience a ghastly smile and chirp, “Never mind.”

That was pretty much the only thing left for the High Court to say when presented with an appeal of last year’s stunning ruling by the U.S. Court of Appeals for the 9th Circuit in the case of Harper v. Poway Unified School District.

The case sprang from an incident three years ago at a San Diego-area high school, when the school – with the support of many administrators, teachers, and students – hosted the Gay, Lesbian, Straight Education Network’s “Day of Silence” to encourage tolerance and support for those practicing homosexual behavior. Since several of his fellow students were wearing clothing promoting that behavior, Chase Harper elected to wear a shirt that questioned it. His read: “I will not accept what God has condemned,” and “Homosexuality is shameful. Romans 1:27.”

School officials ordered Harper to remove the shirt, calling it negative and inflammatory. When he declined to do so, they suspended him. One official even told Harper that he should “leave his faith in his car” when he comes to school. So much for “tolerance.”

Schools are supposed to be a dress rehearsal for participating in our democratic system. But no one asked the students wearing shirts promoting homosexual behavior to remove their apparel – or to consider the possibility that their clothing might be offensive to those who disagree with homosexual practices. So Harper and his family sued the school district, claiming a denial of First Amendment liberties and equal protection under the law. They requested a temporary injunction that would prevent the district from enforcing its highly arbitrary policy … and allow Chase and his T-shirt to resume their participation in future campus discussions.

Instead, the 9th Circuit ruled in favor of the school district, saying, in effect, that the Poway administrators could decide for themselves what political and religious positions were permissible on their campuses. Injunction be hanged.

More than that, though, the 9th Circuit seized the occasion of the Harper case to vent at considerable length and volume on what some of its judges considered the intolerance of those who do not embrace homosexual behavior, and the importance of silencing that position … even, if need be, at the expense of students’ free speech.

Because of the 9th Circuit’s aggressive response, and the philosophical issues involved, the case quickly took on a legal significance far beyond the question of whether or not to grant the temporary injunction. School districts all over the country took note, as the clear directives of the Constitution fell beneath the wheels of political correctness.

But with its decision earlier this month, the Supreme Court effectively said “Never mind” to the 9th Circuit’s voluble opinion on the subject.

Raising esoteric procedural arguments that only a lawyer could love, the school district had tried to deny the Harpers their ability to bring an appeal to the Supreme Court. But – in a classic case of “Be careful what you wish for” – the Supreme Court said if the plaintiff cannot appeal the ruling, then the ruling must go. With that, the Court wiped the 9th Circuit’s ruling off the books – meaning it is no longer the law in the nine states under that court’s authority – so the school district lost its most important win in the case.

Obviously, the decision suits the Harper family to a tee. It clears the path for a ruling on the underlying First Amendment issues at the root of the case … kicking that aspect of Harper back into gear, and back into the jurisdiction of the 9th Circuit.

Perhaps the interval between their last ruling and their next consideration of this case will give the 9th Circuit time enough to reconsider its position…and bring it a little more in line with the constitutional free speech protections that are the hallmark of our democracy – and the bedrock of our freedom.

Otherwise, the Supreme Court may have much more to say about this case the second time around.


Tim Chandler

Tim Chandler is Legal Counsel with the Alliance Defense Fund (www.telladf.org), which represents Chase and Kelsie Harper.

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