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Harper v. Poway Unified School District and the Supreme Court:

The Court just agreed to hear one Ninth Circuit high school student free speech case, Morse v. Frederick ("Bong Hits 4 Jesus"). What does this mean for the other Ninth Circuit high school student free speech case, Harper v. Poway Unified School Dist. ("Homosexuality is Shameful")?

I think Harper will likely be held until the Court decides Morse, and if there's some uncertainty about whether the Harper Ninth Circuit decision is right given the Court's ruling in Morse, the Court will then "GVR" -- Grant, Vacate, and Remand for reconsideration in light of the new precedent. Last Monday, the Court denied "[t]he motion of petitioners to expedite consideration of the petition for a writ of certiorari," but I suspect this just reflects the Court's decision to actually slow down consideration of the petition until after Morse is decided.

Ex-Fed (mail):
Just as well (assuming that Morse comes out the way I hope). Harper seems poorly positioned, procedurally, for SCOTUS review.
12.1.2006 7:07pm
Hans Bader (mail):
Harper and Morse are utterly inconsistent with each other, reflecting the Ninth Circuit's willingness to tolerate offensive speech only as long as it doesn't gore liberal sacred cows.

Harper was wrongly decided. Worse, the theory under which it was decided would allow a vast array of speech to be suppressed (such as discussions about the Prophet Mohammed) if such speech offends a minority group.

By contrast, Morse was largely correct. It was correct insofar as it held the student's speech protected, but incorrect insofar as it denied the school officials qualified immunity (given that there is some ambiguity in the First Amendment case law governing schools).

Given the fact that some justices are decidedly unenthusiastic about the Supreme Court's Tinker decision (on which Morse is based) and others are very offended by any flippant reference to drugs, the chances are better than 50-50 that Morse will be reversed, even though its First Amendment analysis, and application of the Supreme Court's Tinker decision, was largely correct.
12.1.2006 7:19pm
Eugene Volokh (www):
Hans: Maybe I'm missing something, but how do we know for a fact that some Justices are very offended by any flippant reference to drugs?
12.1.2006 7:28pm
wm13:
Along the same lines as Hans Bader, I think that Supreme Court jurisprudence on student free speech cases can be most parsimoniously explained by saying that expressions of opinion that the justices wouldn't find embarrassing coming from their grandchildren are constitutionally protected, and other expressions aren't. So that bodes ill for the speakers in both Morse and Harper.

In contrast, Judge Reinhardt's jurisprudence can be most parsimoniously explained by saying that expressions of sentiments that he agrees with (e.g., smoking pot is fine, Christians are dopey) are constitutionally protected, and other expressions aren't.

I know Prof. Volokh hates this sort of analysis. Maybe someone can find a Supreme Court case that can't be explained by my rule.
12.1.2006 7:29pm
Eugene Volokh (www):
wm13: You're generalizing from a pretty limited set of data points, no? Tinker, Fraser, and Hazelwood, I take it, though Hazelwood involved speech in the official student newspaper and is thus pretty different from the others.

Likewise, can you tell us more about your dataset for Reinhardt? Where does White v. Lee, for instance, fit in? When you say "smoking pot is fine," which case are you referring to, given that Reinhardt wasn't on the "Bong Hits 4 Jesus" panel? Or are you "parsimoniously explain[ing]" just that idiosyncratic subset (and superset) of Reinhardt's cases that you've happened to remember?
12.1.2006 8:02pm
Realist Liberal:
Hans~


Harper and Morse are utterly inconsistent with each other, reflecting the Ninth Circuit's willingness to tolerate offensive speech only as long as it doesn't gore liberal sacred cows.


Harper and Morse really are not inconsistent with each other. The main point of both was whether or not the speech was disruptive to learning. Harper found that because the shirt was worn during class time it was disruptive. Morse found that because the sign was shown outside of class (and not even on campus) it had no affect on student learning.
I'm not sure if I agree with the way Harper came out (I actually think that Judge Kozinski's dissent is much more persuasive) but this seems like a pretty reasonable and clear distinction to me.
12.2.2006 10:43am
thewagon:
The evidence of disruption to classroom activities in Harper was almost nil; if I recall correctly, the student wearing the offending t-shirt was confronted in the hallway between classes in a civil, non-confrontational manner a few times during the day. The district's reasoning was based on the potential for disruption, which is an entirely different beast altogether. Legally, they're probably on pretty good ground, considering that the Tinker standard seems to me to be almost exactly the same as the Pickering/Connick standard for government employee speech. If I'm wrong in that comparison, please correct me. If I'm not, though, the state must merely claim a potential for disruption to public services, and then, in all honesty, meet a minimal standard of evidence to support that claim.

A professor of mine raised an interesting point on the topic: both the Pickering test and the Tinker test effectively give the lowest amount of protection to the speech that needs the most protection - the most offensive and disruptive speech. It seems to me as if that inevitably leads to what is effectively community standards for speech, in that whether or not the speech in question will cause disruption depends on the prevailing community standards.

All in all, though, it's hard for me to take seriously a court whose opinion cites a Hollywood film to support its reasoning.
12.2.2006 4:23pm
Hans Bader (mail):
Despite seeming similarities, there are important differences between student speech rights under Tinker and public employee speech rights under Pickering and Connick.

In some respects, student speech rights are much broader. For, example, the Ninth Circuit in Pinard v. Clatskanie School District (2006) and the Second Circuit in Garcia v. S.U.N.Y. Health Sciences Center, pointed out that students' speech, unlike public employees' speech, need not be on a matter of "public concern" to be protected.

And in college cases, at least, a greater showing of disruption is required to permit regulation of student speech than is required to permit regulation of the speech of a typical public employee.

On the other hand, a K-12 student has less right under Bethel to engage in lewd or vulgar speech than a public employee enjoys.
12.2.2006 8:28pm