The "Bong Hits 4 Jesus" First Amendment Case, Part Two: Is the U.S. Court of Appeals for the Ninth Circuit Half-Baked When It Comes to Student Speech?

In my last column, I discussed the decision by the U.S. Court of Appeals for the Ninth Circuit in Frederick v. Morse. There, the Ninth Circuit held that a public high school student had a clearly-established First Amendment right to display a "Bong Hits 4 Jesus" banner at a privately-sponsored event that took place on a public street.

Former Independent Counsel Kenneth Starr - now a lawyer at Kirkland & Ellis - recently asked the Supreme Court to overturn the Ninth Circuit's decision. I argued that the decision was correct, and that this was an exceptionally poor choice by Starr for a pro bono case -- given the high school principal's egregious behavior in not only suspending the student, but actually grabbing the banner from him and destroying it.

In this column, I'll put the Frederick decision in the context of two other controversial student speech decisions issued by the Ninth Circuit this year: Harper v. Poway Unified School Dist. and Pinard v. Clatskanie School Dist. 6J.

The Legal Standard for All Three Cases

Both of these decisions, like Frederick itself, fall under the rule established by the Supreme Court in Tinker v. Des Moines Independent Community School Dist..

Under this rule, a school can only silence or punish student speech if it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."

Also, it is not enough if the school district at issue merely claims that the standard is satisfied based on speculation about the speech's effect. To the contrary, school districts must cite "evidence that [the punishment] is necessary to avoid material or substantial interference with schoolwork or discipline."

The Ninth Circuit's April Ruling on a Student's Anti-Gay T-Shirt

The Frederick decision was issued on March 10. The next month, on April 20, the Ninth Circuit issued another extremely controversial ruling, in Harper v. Poway Unified School Dist.

The ruling came at the preliminary injunction stage - meaning that the appeals panel only needed to decide if the student who sued the school district was likely to prevail on the merits of his case. The panel, however, held that victory for the student was unlikely.

The student argued that the school had violated his First Amendment rights when it punished him for an anti-gay T-shirt that he wore on the same day as the Gay-Straight Alliance's school-permitted "Day of Silence," which was observed at his school. (On the front of the T-shirt, the student wrote "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, he wrote, "Homosexuality Is Shameful.")

The controlling opinion, written by the famously liberal Judge Stephen Reinhardt, deemed the T-shirt's message to "intrude[] upon the rights of other students." But the more libertarian Judge Alex Kozinski, in dissent, argued that the T-shirt, while surely troubling, simply did not - based on his review of the evidence -- spark the kind of disorder the school was legally entitled to prevent.

Rather, Kozinski argued, the shirt had triggered what even the T-shirt-wearing student himself merely deemed a "tense" conversation among various students. Remarking that "people - judges even - often have strong views and their discussions will naturally reflect this intensity of feeling," Kozinski noted that this "apparently peaceful confrontation" did not meet the standard under Tinker of materially disrupting class work, causing substantial disorder, or invading the rights of others.

I agree with Kozinski's dissent.

Granted, at some extreme, it's possible that the wearing of an anti-gay T-shirt might be deemed, under the law, to be tantamount to harassment of gay students, or to a threat against them. (Similar issues might be raised - depending on the relevant facts and circumstances - by, say, the wearing of "White Pride" T-shirts in a racially diverse school, or of Nazi emblems in a school with Jewish students.) In such extreme cases, it's possible that a sufficiently hostile T-shirt might be thought to "inva[de] the rights of others," under Tinker, by creating an inimical - or even potentially violent -- environment in which it is uncomfortable, or worse, for the targeted students to learn..

But this case, on the evidence, was very far from that extreme. In this case, the T-shirt said "Be Ashamed," not "Watch Your Back." Moreover, it was not personalized to target any given gay student; instead, it expressly targeted school policy - the pro-gay stance that, the student complained, "Our School Embraced." And as noted above, the atmosphere it provoked was tense, but not violent.

In the end, too, even in more troubling cases than this one, it's important to remember that what goes around, comes around: If schools are allowed to rein in speech by invoking overly restrictive rules, then it's very likely that those rules will end up being used by people with anti-gay beliefs, against gay students who want to speak out. (Or, to recall prior examples, it's very likely the rules could be used against students who belong to racial or religious minorities within a given school.)

Anti-speech rules, in sum, tend to be employed to target stigmatized or distrusted minorities (like the "Bong Hits 4 Jesus" contingent in Frederick). Thus, the fact that in this particular school, the rule happened to have been invoked in an attempt to protect gay students' feelings, may well have been a fluke.

The Ninth Circuit's Ruling on a Protest by Basketball Players

Another notable Ninth Circuit school speech ruling came on May 1, in the case of Pinard v. Clatskanie School Dist. 6J. There, high school varsity basketball players argued that they had been suspended for exercising their First Amendment rights by speaking out against a coach they alleged was verbally abusive, and then refusing to play in one of their games. Since high school varsity basketball players are not usually shrinking violets, it seems likely that the coach's behavior was, indeed, quite severe.

The Ninth Circuit panel held the players should have gone to the game, since it was "disruptive" under Tinker's standard not to. But the panel also held that the students were constitutionally entitled to speak out as they had -- and thus, that the school could not retaliate against them for doing so.

This result struck a moderate balance, ensuring that school events would go on as planned, yet also honoring students' right to dissent.

Is the Ninth Circuit "Too Liberal"? These Decisions Don't Evidence That

The Ninth Circuit has a reputation of being liberal to an unreasonable extreme. But a close look at these recent cases suggests that reputation is not justified - at least not in the context of student speech.

The facts of the "Bong Hits 4 Jesus" case, as noted above, were egregious; the principal's conduct was plainly unlawful. This should have been an easy case for any appeals court: After all, the event at issue was neither school-sponsored, nor on school property. And in the varsity basketball protest case, the panel reached a mixed result that accommodated both sides, at least to some extent.

Finally, even in the controversial anti-gay-T-shirt case, the split panel decision belies claims that the Circuit, as a whole, tends to be politically extreme. In my view, the panel majority made the wrong call, but even dissenting judge Alex Kozinski saw the case as a "troubling" one.

The better answer may be Kozinski's: that public high school students have the right to wear anti-gay T-shirts. But that shouldn't obscure the fact that gay high school students will predictably suffer as a result of the exercise of that right. Legally required to attend an institution where others can express open hostility to their very identity, gay high school students know well that freedom, in fact, isn't free.

Julie Hilden, a FindLaw columnist, previously wrote a column for this site on the related topic of the First Amendment rights of public school teachers. - Ed.