Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 20

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1971—In what politics professor Shep Melnick callsone of the most confused and internally contradictory opinions ever issued by the Supreme Court,” Chief Justice Warren Burger’s unanimous decision in Swann v. Charlotte-Mecklenburg Board of Education will (in Melnick’s summary) lead “federal judges throughout the South to mandate extensive busing to create racially balanced schools” and “become the foundational opinion for those who believe that desegregation requires rather than prohibits the use of race in assigning students to particular schools.”


2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

Harper’s complaint will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.


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