For forty years, the United States has lived with a variety of government programs applying preferential treatment based on race or gender or both. These programs have generally been limited to education and public contracting.
Recently, in a 2-1 decision, a panel of the Ninth Circuit Court of Appeals handed down a decision which may provide a foundation for applying preferential treatment to freedom of speech. If allowed to stand, the decision could authorize local governments to set varying limits to free expression, depending on the race, religion, or sexual orientation of the listener. Preferential treatment has proved one of the most divisive policies of modern America. The Ninth Circuit’s decision could radically expand its scope.
Harper v. Poway Unified School District grew out of a decision by a San Diego area high school to hold a “Day of Silence” to “teach tolerance of others, particularly those of a different sexual orientation” (in the words of its Assistant Principal). Participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance. Others wore black T-shirts bearing a purple square and a yellow equal sign. The Gay-Straight Alliance, with the school’s permission, put posters “promoting awareness of harassment on the basis of sexual orientation.”
Not all students supported the Day of Silence. Tyler Harper arrived wearing a T-shirt reading “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED” on one side, and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’” on the other. The next day, his T-shirt read: “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED.” School authorities considered the T-shirt “inflammatory” and refused to allow Harper to wear it on campus. When he would not remove it, they confined him to a school conference room. He spent part of the day doing homework, and part discussing the Bible and the T-shirt with school officials and a deputy sheriff. After the last period, Harper was instructed to proceed directly off campus.
Harper sued the school district on First Amendment and other grounds. He sought a preliminary injunction barring the district from “continuing its violation of [his] constitutional rights.” After the district court denied the motion, Harper appealed.
Instead, in a 2-1 decision, Judge Reinhardt used the case to articulate a new concept of free speech regulation. Focusing on the specific anti-gay content of Harper’s T-shirt, he ruled that schools may restrict “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” In a footnote, he wrote that the court would “leave … to another time” the question of limiting derogatory remarks aimed at gender. But Judge Reinhardt proceeded to establish a new constitutional calculus, under which the protectability of speech would depend on the minority status of the listener.
Judge Reinhardt wrote that a different standard should apply to derogatory remarks aimed at “majority groups such as Christians or whites” because “there is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status.”
Perhaps there is, but it is not a difference recognized in the Bill of Rights. The Supreme Court has upheld, under limited circumstances, the right of states to grant preferential treatment to minorities in access to education and public contract opportunities. In a 2003 decision involving Michigan Law School, former Justice Sandra Day O’Connor observed that 25 years of racial preferences may be necessary to achieve equality. But she was addressing a state school admissions policy. When given the chance, voters have regularly rejected such programs. If, as Judge Reinhardt found, constitutional rights themselves may be allotted to the people on a preferential basis depending on minority status, such preferences may be beyond democratic challenge by the voters.
In his dissent, Judge Kozinski pointed to the practical difficulties of applying Reinhardt’s novel concept. If the Pope condemns gay marriage, could a student wear a T-shirt reading “CATHOLICS ARE BIGOTS”? On the one hand, Catholics are a minority with a long history of oppression in this country. So they would seem to qualify for Judge Reinhardt’s preferential treatment. But Catholics are part of the larger Christian faith, which Judge Reinhardt described as having “always enjoyed a preferred social, economic and political status.” Blacks are a minority nationally, but in many school districts they constitute a majority. May a white student wear a T-shirt bearing an anti-black message in a nearly all black school, since the white student would be a minority in that context?
Beyond the problems of defining who receives extra protection and who is subject to extra restriction, there is this unsettling thought: If freedom of speech depends on the minority status of the listener, what about the other enumerated constitutional rights? Why stop at the First Amendment? The Bill of Rights contains nine more.