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ADF attorneys plan to appeal “extremely poor” ruling from 9th Circuit in Poway “T-shirt” case
Alliance Defense Fund ^ | Thursday, April 20, 2006 | ADF Media Relations

Posted on 04/21/2006 12:17:32 PM PDT by DogByte6RER

ADF attorneys plan to appeal “extremely poor” ruling from 9th Circuit in Poway “T-shirt” case

Thursday, April 20, 2006, 4:45 PM (MST)

ADF Media Relations | 480-444-0020

“The majority implied that Brokeback Mountain is in, and the Bible is out," said ADF Senior Legal Counsel Kevin Theriot.

School administrator to student: "Leave your faith in the car"

PASADENA, Calif. — Attorneys with the Alliance Defense Fund say they plan to appeal today’s ruling by two judges of the U.S. Court of Appeals for the 9th Circuit who upheld a high school’s decision to prohibit a student from expressing his views regarding homosexual behavior on a T-shirt.

“Students do not give up their First Amendment rights at the schoolhouse door,” said ADF Senior Legal Counsel Kevin Theriot. “This panel has upheld school censorship of student expression if it is the Christian view of homosexual behavior. They have essentially determined that student quotation of Scripture can be prohibited. This case will proceed at the district court level, but we intend to appeal today’s extremely poor ruling to the full 9th Circuit.”

ADF attorneys represent Poway High School student Chase Harper, who was forbidden by school officials from wearing a T-shirt expressing his religious point of view on homosexual behavior. A school administrator told Harper to “leave his faith in the car” when his faith might offend others (www.telladf.org/news/story.aspx?cid=2746).

The decision today by the two-judge majority of a three-judge 9th Circuit panel upholds a lower court’s denial of a motion by ADF attorneys that asked for Poway High School’s policy regarding the T-shirt to be immediately halted while the case moves forward.

The third judge, Circuit Judge Alex Kozinski, vigorously dissented: “I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning.... The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future.”

The two-judge majority criticized Kozinski, suggesting that the majority could rely upon the motion pictures Brokeback Mountain or The Matthew Shepard Story “as evidence of the harmful effects of anti-gay harassment....”

“The majority implied that Brokeback Mountain is in, and the Bible is out. What’s really broken here is the majority’s approach to the First Amendment,” Theriot observed.

“The court has manufactured new law in the area of student speech in saying students cannot say anything that school officials deem ‘demeaning’ to another,” Theriot explained. “This is the same court that ruled that parental rights stop at the schoolhouse gate and that ‘God’ should be removed from the Pledge of Allegiance. This case is not over.”

The opinion issued by the 9th Circuit in the case Harper v. Poway Unified School District can be read at www.telladf.org/UserDocs/HarperOpinion.pdf.

ADF is a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation.

www.telladf.org


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government; Miscellaneous; News/Current Events; Philosophy; US: California
KEYWORDS: 9thcircuit; adf; antichristian; bias; brokebackmountain; dresscodes; harpervpoway; homosexualagenda; indoctrination; ruling; scotus; tshirt
What an outrageous decision by these two judges on the 9th Circuit Court of Appeals! It is bad enough that certain justices on the Supreme Court of the United States (SCOTUS) now cite and reference international law and the laws of dubious countries when interpreting the U.S. Constitution.

Now...we have these two clowns on the 9th Circus Court of Appeals citing Hollywood's propaganda film "Brokeback Mountain" in abjudicating this case from Poway. This is truly adding insult to injury.

We are truly staring down into the abyss and there is nothing to keep us from falling in.

The only bright side is that the 9th Circuit is the MOST frequently overturned appelate court in the nation. SCOTUS routinely overturns decisions meted out by this judicail abomination based in San Francisco.

1 posted on 04/21/2006 12:17:38 PM PDT by DogByte6RER
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To: DogByte6RER

If it were a teacher then it would have been academic freedom.. but not likely to carry the same message.


2 posted on 04/21/2006 12:21:01 PM PDT by street_lawyer (Conservative Defender of the Faith)
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To: DogByte6RER

What did the shirt say?


3 posted on 04/21/2006 12:21:43 PM PDT by ansel12
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To: DogByte6RER

So what did the t-shirt say/show?


4 posted on 04/21/2006 12:22:04 PM PDT by orionblamblam (I'm interested in science and preventing its corruption, so here I am.)
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To: DogByte6RER

So, which religions approve homosexuality?


5 posted on 04/21/2006 12:22:13 PM PDT by mtbopfuyn
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To: DogByte6RER

Circuit Judge Alex Kozinski,
U. S. Court of Appeals for the Ninth Circuit
Nominated by Ronald Reagan


6 posted on 04/21/2006 12:25:18 PM PDT by street_lawyer (Conservative Defender of the Faith)
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To: ansel12

During the 2004 homosexual "Day of Silence" promoted by his high school, Harper wore a black T-shirt on which he wrote in bold, capital letters: “I will not accept what God has condemned” and “Homosexuality is shameful 'Romans 1:27' ” on the back.

For more on the background of this go to:

http://www.signonsandiego.com/news/education/20060421-9999-7m21tshirt.html


7 posted on 04/21/2006 12:25:23 PM PDT by DogByte6RER (Other Bus 19 So-Cal exhibits.)
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To: DogByte6RER

Free speech for me, but not for thee!

The only acceptable free speech is that which liberals believe. If the shirt had said F*** BUSH (without the ***'s) it would have been perfectly fine.


8 posted on 04/21/2006 12:32:57 PM PDT by Personal Responsibility (Amnesia is a train of thought.)
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To: DogByte6RER

"“I will not accept what God has condemned” and “Homosexuality is shameful 'Romans 1:27' ” on the back."



Although I agree with the phrases, I think they don't belong in school.

I believe a school should forbid any distractions, from statement t-shirts and arm bands, to outlandish clothing and haircuts.

If a student body becomes mired in wearing competing, confrontational messages, then the school should have the right to go to uniforms.


9 posted on 04/21/2006 12:34:02 PM PDT by ansel12
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To: DogByte6RER
The majority opinion has lots of this sort of cr*p: "Those who administer our public educational institutions need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

Boohoohoo. What about the vulnerability of other teenagers whose beliefs may be assaulted by homosexuality? They don't count. Homosexuals are a vulnerable, oppressed, victim, and therefore protected class, at least in the eyes of the 9th Circus.

10 posted on 04/21/2006 12:36:14 PM PDT by hsalaw
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To: DogByte6RER

The only religion that is free to be expressed in public schools is liberal secularism......


11 posted on 04/21/2006 12:44:12 PM PDT by Rummyfan
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To: ansel12
If a student body becomes mired in wearing competing, confrontational messages, then the school should have the right to go to uniforms.

In this case, where the young man was reacting to a homosexual "day of silence", the administration has preempted only one side of the argument. That's the problem.

12 posted on 04/21/2006 12:46:31 PM PDT by MortMan (Trains stop at train stations. On my desk is a workstation...)
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To: ansel12
I believe a school should forbid any distractions, from statement t-shirts and arm bands, to outlandish clothing and haircuts.

I agree. That's why - now that I am safely out of high school - I support school uniforms.

If I ever have kids, Catholic schools are looking pretty good right now.

13 posted on 04/21/2006 12:49:19 PM PDT by jude24 ("The Church is a harlot, but she is my mother." - St. Augustine)
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To: ansel12
The school should also not be "promoting" this Day of Silence. If they can have their say then why can't he? This is the school's fault, along with GLSEN, et. al. for even bringing this "project" to the schools.

Leave our kids alone, dammit!

From their web site(http://www.dayofsilence.org/) :

The Day of Silence®, a project of the Gay, Lesbian and Straight Education Network (GLSEN®) in collaboration with the United States Student Association (USSA), is a student-led day of action where those who support making anti-LGBT bullying and harassment unacceptable in schools take part in activities to recognize and protest the discrimination and harassment - in effect, the silencing - experienced by LGBT students and their allies.

14 posted on 04/21/2006 12:49:30 PM PDT by ItsForTheChildren
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To: MortMan; jude24; ItsForTheChildren

"In this case, where the young man was reacting to a homosexual "day of silence", the administration has preempted only one side of the argument. That's the problem."


While my post makes sense generally, it didn't in this specific case.

I didn't realize this was a response to a government obscenity.

The government had already stepped outside the boundaries of rationality by imposing a homosexual advocacy day.

The schools previous action calls for rebellion and demonstrations by all members of that community.

How this situation became about a t-shirt istead of the school administration is beyond me.


15 posted on 04/21/2006 12:59:19 PM PDT by ansel12
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To: DogByte6RER

If its not pro gay,it holds no sway!


16 posted on 04/21/2006 1:04:53 PM PDT by xarmydog
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To: MortMan
In this case, where the young man was reacting to a homosexual "day of silence", the administration has preempted only one side of the argument. That's the problem.

That's one of the points made in the dissent, that the school was promoting that viewpoint and in essence stifling any response. Since the school had had violence during the prior "day of silence," why didn't they just cancel it instead of repressing opposing viewpoints?

17 posted on 04/21/2006 1:06:55 PM PDT by hsalaw
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To: ansel12

I believe a school should forbid any distractions, from statement t-shirts and arm bands, to outlandish clothing and haircuts.

&&

I agree with you in principle, but this kid was reacting to the "Day of Silence" imposed upon him by his school, which apparently was promoting homosexual behavior.


18 posted on 04/21/2006 1:49:11 PM PDT by Bigg Red (Never trust Democrats with national security.)
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To: Bigg Red

I agree, Read post 15.


19 posted on 04/21/2006 1:52:56 PM PDT by ansel12
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To: DogByte6RER
I wonder what else these "judges" do in their spare time besides watching movies about culattonis.
20 posted on 04/21/2006 2:03:05 PM PDT by isrul
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To: DogByte6RER

Why am I not shocked that REINHARDT is the author of this opinion? He just keeps getting nuttier and nuttier. He sees himself as a great Brennan-like liberal genius. He once said about the SCOTUS overturning his decisions, "They can't catch them all."


21 posted on 04/21/2006 2:20:45 PM PDT by NinoFan
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To: DogByte6RER

There are several excellent LL.M. (Master of Laws) dissertations on the law and policy of expressive speech and its control as well as permissible limits in the high scool environment. It differs significantly from the same subject in the collge campus setting. Judge Kozinski, an excellent judge on many matters, is correct in this one but perhaps for the wrong reason. The 2-judge majority is wrong upon a misstated premise. The better analysis and rationale' is a constitutional study of the history of student - school authority relationship as it was best raised and explored during the Cold War and Vietnam eras.


22 posted on 04/21/2006 2:50:13 PM PDT by middie
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To: mtbopfuyn
So, which religions approve homosexuality?

islam

23 posted on 04/21/2006 2:51:55 PM PDT by Centurion2000 (Every man must be tempted, sometimes,to hoist the black flag, and begin slitting throats.)
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To: street_lawyer
But it's a Reinhart driven decision. Kozinski dissented. Reinhart just about the most liberal member of the court and husband of Ramona Ripston, Executive Director of The Southern California branch of the ACLU. Judge Sidney R. Thomas is a Clinton appointed judge. I couldn't find out much abut this judge other than the Clinton appointment and his law school.

Kozinski's dissent starts on page 57 is worth reading. He destroys the arguments of the other two judges, but that doesn't matter because he was outvoted by 2 to 1. The other two judges declare the statements on the shirt to be offensive. Kozinski points out that while in the past this might be a close call a recent 9th Circuit case Frederick v Morse changed the law and made it clear that what was on the shirt wasn't offensive under the law. The other two judges ignored that 9th Circuit decision to come up with the conclusion they wanted. In Frederick V. Morse it was determined it had to be the language that was offensive not the idea being expressed. If it was not the language then the offensive idea being expressed was substantially protected.
24 posted on 04/21/2006 3:20:46 PM PDT by airedale ( XZ)
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To: DogByte6RER
his faith might offend others

Unless of course it is a Muslim, which we happily provide prayer rooms for.

25 posted on 04/21/2006 3:31:37 PM PDT by itsahoot (Any country that does not control its borders, is not a country. Ronald Reagan)
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To: mtbopfuyn

"So, which religions approve homosexuality?"

Be careful what questions you ask.

--Recovering Catholic


26 posted on 04/21/2006 4:07:36 PM PDT by MonroeDNA (Look for the union label--on the bat crashing through your windshield!)
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To: AFA-Michigan; AggieCPA; Agitate; AliVeritas; AllTheRage; An American In Dairyland; Annie03; ...
Homosexual Agenda Ping!

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More on the latest leftist ruling which supports the alienable selective right to not be offended.

27 posted on 04/21/2006 7:25:49 PM PDT by DBeers (†)
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To: DogByte6RER

Hard to say...

Could it be that the 9th Circuit Court of Appeals is really evil, or is it that they actually believe they would rule the same way had this been a school administrator's statement:

"A school administrator told [student] to “leave his [sexuality] in the car”"


28 posted on 04/21/2006 8:27:04 PM PDT by MonicaG (Grateful to our troops & veterans - thank you!!!)
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To: everyone

Schools should be able to censor student speech, but they should do it reasonably and in good faith. They are run by unreasonable people who live in fear of even more unreasonable people, like the Anti-Christ Lawyers Union and some of the lunatic 9th Circus judges. Since the schools will not censor political speech reasonably and in a fair manner, they should not censor it at all.


29 posted on 04/21/2006 8:29:52 PM PDT by California Patriot ("That's not Charlie the Tuna out there. It's Jaws.")
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To: mtbopfuyn
So, which religions approve homosexuality?

What do you mean? In their official confessions and tenets or in practice?
30 posted on 04/21/2006 10:25:55 PM PDT by Das Outsider (Are Marxist academics and apostate bishops trustworthy enough to tell you who the "real" Jesus is?)
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To: airedale
Yes exactly, the only sane person on the court is Kozinski. I was not aware that Reinhart is marred to an ACLU lawyer, but I am not surprised at all. I believe he is a Carter aponitee.

Among his better known decisions, Reinhardt: ... agreed that the phrase "under God" in the Pledge of Allegiance was unconstitutional; ... found a "right to die" in the Constitution; ... overturned Alaska's sex offender registry law because a registrant would suffer the "ostracism that would accompany his being publicly labeled a sex offender;" ... ruled that the Second Amendment, which states in part "the right of the people to keep and bear arms shall not be infringed," does not recognize a right of individual citizens to own guns, but of state governments to arm "militias."

31 posted on 04/22/2006 9:54:51 AM PDT by street_lawyer (Conservative Defender of the Faith)
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To: street_lawyer

Thought you'd be interested in this John Leo column that just came out since it mentions this case and Judge Reinhart

Columns Court-endorsed double standards are bound to be overturned
Apr 23, 2006
by John Leo ( bio | archive | contact )

Email to a friend Print this page Text size: A A Last week was a tough one for Stephen Reinhardt, the most liberal judge on the most liberal federal circuit (9th). The Supreme Court agreed to hear the state of California's appeal in the "buttons" murder case.
A San Jose man, Mathew Musladin, was convicted of murdering his estranged wife's fiance in 1994. But last October, Judge Reinhardt ordered him released unless the state promptly grants him a new trial. Writing for the court, Reinhardt ruled -- brace yourselves -- that the trial was unfair because three members of the victim's family had shown up in court wearing buttons displaying the victim's photograph. Reinhardt acknowledged that no Supreme Court precedent was involved, but said the buttons were "an impermissible factor."

On Thursday, the 9th Circuit issued another peculiar ruling, written by Reinhardt, that has just as good a chance of being overturned by the Supreme Court as the "buttons" decision. In a 2-1 split, the court ruled that a California student, Tyler Chase Harper, had no First Amendment right to go to school wearing a T-shirt condemning homosexuality.

In response to a "Day of Silence" sponsored by the Gay-Straight Alliance at Poway High School in Poway, Calif., Harper wore a shirt that said, on the front, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, "Homosexuality Is Shameful 'Romans 1:27.'" The principal ordered Harper to take off the shirt. Harper refused to comply and sued. He argued that the purpose of the "Day of Silence" was to "endorse, promote and encourage homosexual activity" and that he was entitled to use his T-shirt message as a rebuttal. He cited his First Amendment rights to free speech and freedom of religion.


Much T-shirt jurisprudence turns on the question of whether direct threats or the likelihood of severe disruption or violence are involved. In this case Reinhardt and his colleague Judge Sidney R. Thomas argued that T-shirt messages could be excluded from First Amendment protection if they strike at a "core identifying characteristic of students on the basis of their membership is a minority group."

This ruling creates a new and large category of viewpoints excluded from First Amendment protection. It said that "derogatory and injurious remarks directed at students' minority status such as race, religion and sexual orientation" can be banned, but not other controversial messages. Based on the ruling here, criticism of illegal aliens might be banned too, says Eugene Volokh, professor of law at UCLA. Volokh argues that the phrase "such as" in the ruling indicates that other groups might be granted freedom from criticism at schools.

Thus homosexuality, a subject up for political and moral debate, can be argued in the T-shirt wars only on the pro side, not on the con. Presumably no minority religious opinion can be criticized, such as the Islamic argument that cartoons of Muhammad are out of bounds. But pictures of Christ in urine would be allowed, because Christianity is the majority faith in America. Reinhardt and Thomas follow the lead of the politically correct left in carving our special protection based on hostile environment threats to self-esteem and membership in "minority groups that have historically been oppressed."

In dissent, Judge Alexander Kozinski said he has "considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today," meaning that nothing in state law, federal law or common law supports it. The majority clearly says, he argues, that not all statements that demean other students can be banned by schools, only demeaning statements based on minority status. If the pope condemns gay marriage, presumably gays could wear "Catholics are bigots" T-shirts. But Catholics could respond with their own polemical T-shirts only if the school or the courts ruled they are a traditionally oppressed minority within Christianity and not just part of a monolithic Christian majority.

Double standards based on levels of historic oppression eventually all come to grief. If this case goes to the Supreme Court, the eccentric 9th Circuit ruling is very likely to be overturned. It will be one more reversal for the most reversed district court in the nation.

John Leo is a columnist and editor for U.S. News & World Report and a contributing columnist on Townhall.com.


32 posted on 04/23/2006 9:21:06 PM PDT by airedale ( XZ)
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To: DogByte6RER
The Matthew Shepard Story

Remember Jesse Dirkhising a teen who was brutally tortured, raped and murdered by a 'monogamous homosexual couple'. Never let him be forgotten

33 posted on 04/24/2006 11:12:37 AM PDT by John O (God Save America (Please))
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To: ansel12
Since this is about T-shirts it's as good a place to postthis as any.

I was at the Milwaukee County Zoo on Saturday when I saw a lone woman with two boys aged about 6 and 8. Both boys were wearing pink shirts that said "Tough guys were pink".

I turned to my father-in-law who was with me and said "I bet she's a lesbian. What person in their right mind would make a little boy wear pink?"

So they sit down to eat and along comes another lone (very masculine looking) woman with a little girl who joins them. No wedding rings on either woman. Obvious fruity 'couple'

It's sad to see sodomites corrupting children.

34 posted on 04/24/2006 11:17:38 AM PDT by John O (God Save America (Please))
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To: airedale

Thanks I'll bump this to read later. I'm usually always interested in your posts because they are always worth reading.


35 posted on 04/24/2006 11:18:45 AM PDT by street_lawyer (Conservative Defender of the Faith)
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To: airedale

            Now you can see why the push to classify homosexuals as a protected class of people within the meaning of the Civil Rights statutes. Without that classification, there would be no more protection in the law for homosexuals than that for heterosexuals.

            I did not view the T-shirt issue as purely anti-homosexual. In this case, a governmental institution undertook to deny the demonstrators their First Amendment rights of free speech and religion, and they reacted to the forced surrender of that constitutionally protected right of free speech.

I agree with the traditional prohibition of speech that presents a clear and present danger of violence; however, the devil is in the details, and that test is subjective and depends upon who is sitting in judgment of the case.

            In order to protect Christians against speech that is derogatory, it would be necessary to create a Civil Rights classification, but such rights are currently based upon minority status. Curiously, the courts apparently would protect a Muslim when in fact Islam is not a minority religion worldwide.

If the court prohibits anti-homosexual speech because it might incite violence, one must ask from whom the violence might come - Homosexuals and their supporters? What if Christians and their supporters were to threaten, or even carry out, similar violence, would the court prohibit anti-religious speech on such grounds? Probably not.

36 posted on 04/24/2006 12:43:41 PM PDT by street_lawyer (Conservative Defender of the Faith)
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