Student speech and layman's expertise
I've been wanting to point out this op-ed piece by one of the lawyers in the case of Harper v. Poway Unified School District, but haven't got around to it. For those who haven't been following the case, Tyler Chase Harper was sent to detention for wearing a T-shirt in response to the Gay, Lesbian, Straight Education Network's “Day of Silence” that read: “I will not accept what God has condemned,” and “Homosexuality is shameful. Romans 1:27.”
It's interesting that this piece was published before the brouhaha broke over Chairman of the Joint Chiefs Gen. Peter Pace made his infamous "homosexual behavior is immoral" statement. (On a side note, I found it interesting listening to a representative from the Servicemembers Legal Defense Network on the Michael Medved show take Pace to task for his personal view by suggesting that he was educated and intelligent enough to know better -- the implication being that it's understandable for the stupid, uneducated grunts to hold such a neanderthal view, but "smart" people don't.)
Another student speech case was heard by the Supreme Court today. In this case the student unfurled a banner that read "Bong Hits for Jesus" as the Olympic torch passed through town. The students had been allowed outside during school hours by administrators to watch the torch, and the principal confiscated the banner when she saw it. The student sued saying that his right to free speech had been infringed. Note that both the cases here came out of the 9th Circuit -- the most reversed appellate court in the history of the world. (A piece last week in the Wall Street Journal noted that during the current term, the 9th's win-loss record with the Supreme Court is 5-67. That is, in all of the reviewed cases, the 9th has only gotten justices to agree with it a total of 5 times -- and every case has been overturned.)
A personal story detour: A few years ago I was playing in a touch football game with a bunch of people from the San Diego Union-Tribune. It was ink-stained wretches vs. line-drawers. (Insert perennial complaint that the U-T is the only major paper in the world that still uses hot wax and x-acto knives to create pages here.) About half-way through the contest I got whacked pretty good in the forearm -- that happens when you're a lineman in the trenches. It hurt a little, but it also blew up to an impressive size right at the wrist. My non-medically trained colleagues thought it might be broken and suggested I go to the emergency room. I went and, after getting X-rays, was informed that nothing was broken -- it was simply a deep bone bruise.
A few weeks later I got a letter from my insurance company stating that they would not cover the emergency room visit because I should've known that the bone wasn't broken. I wrote back a snarky letter stating that if a doctor -- with all his years of medical school and on-the-job training required an X-ray to determine there was no break, then it was ridiculous of the insurance company to state that I, with no medical training, should've known without looking at an X-ray.
The insurance company covered the visit.
I told you that story so I could highlight this exchange in the Bong Hits case (courtesy Patterico). At issue is whether the principal in this case has qualified immunity in her capacity as a public official -- the 9th Circuit stated that she did not.
CHIEF JUSTICE ROBERTS: Can we get back to what the case is about. You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it’s disruptive. But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I’ve got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it.
MR. MERTZ: Mr. Chief Justice, there are two different time points we have to talk about. There’s the heat of the moment out there on the street, but then later back in the office when she actually decided to levy the punishment after she had talked to him, after she heard why he did it and why he didn’t do it, after she had had a chance to consult with the school district’s counsel. At that point in the calmness of her office, then she should indeed have known it. And she did testify that she had taken a master’s degree course in school law in which she studied Kuhlmeier and Frazier and Tinker. So –
CHIEF JUSTICE ROBERTS: And so it should be perfectly clear to her exactly what she could and couldn’t do.
MR. MERTZ: Yes.
JUSTICE SCALIA: As it is to us, right?
(Laughter.)
As Patterico notes: "Case closed. The school principal ain’t paying a dime on this one."
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[...] been following the case of Harper v. Poway Unified School District for years. (For background read here and here.) The short summary for those of you who haven’t been following it is that Tyler [...]