I spent a chunnk of yesterday afternoon reviewing the Constitution and Bill of Rights with some students yesterday in preparation for today's TAKS Social Studies test.

Unfortunately, my material was out of date.

My copy of the Bill of Rights included a First Amendment that read "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

I didn't realize that there had been a revision to tack on the phrase "but the courts and the school boards of the nation can do whatever they want."

That includes viewpoint discrimination that endores one view of a controversial social issue and bans the opposing view. At least according to the Ninth Circuit.

A suburban San Diego teenager who was barred from wearing a T-shirt with anti-gay rhetoric to class lost a bid to have his high school's dress code suspended Thursday after a federal appeals court ruled the school could restrict what students wear to prevent disruptions.

The ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals addressed only the narrow issue of whether the dress code should be unenforced pending the outcome of the student's lawsuit.

A majority of judges said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message "homosexuality is shameful."

Tyler Chase Harper sued the Poway Unified School District in San Diego federal court after the principal at Poway High School refused to let the student attend class wearing a T-shirt scrawled with the message "homosexuality is shameful."

Harper was a sophomore at Poway High in 2004 when he wore the T-shirt the day after a group called the Gay-Straight Alliance held a "Day of Silence" to protest intolerance of gays and lesbians. The year before, the campus was disrupted by protests and conflicts between students over the Day of Silence.

After Harper refused to take off the T-shirt, Poway High School's principal kept Harper out of class and assigned him to do homework in a conference room for the rest of the day. He was not suspended from school.

The problem is, from my point of view, that the school had permitted (and even endorsed) the "Day of Silence". So what you had was a situation in which the marketplace of ideas was shut down, to be replaced with a Soviet-style command economy of ideas.

And what did the judges base their actions upon? Why, such important legal texts as Brokeback Mountain and The Matthew Shepard Story..

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.�

Ultimately it comes down to this -- does speech that does no more than raise a moral objection to homosexuality constitute harassment which can (and, implicitly, should) be banned? After all, this shirt did not say "Homosexuals Are Perverts" or "God Hates Fags" -- and certainly no threat of violence. It said "Homosexuality Is Shameful" -- a moral judgement on the lifestyle. Would the school have been equally opposed to a shirt which claimed that "Racism Is Shameful" or "War Is Shameful" or "Voting Republican Is Shameful"? I think the question answers itself.

This decision must be overturned -- either permitting non-disruptive speech by students (no claim of disruption has ever been made by the school) or imposing a gag on all student speech. And given that the latter is antithetical to the First Amendment and contrary to over six decades of precedent on the matter, the answer is clearly my first suggestion -- a reiteration of the Tinker principle that students do not shed their liberties at the schoolhouse gate, and the barnett pinciple that school officials shall not prescribe what positions shall be orthodox in matters of personal belief and may not compel assent to those positions or forbid viewsexpression to the contrary.

ADDITIONAL COMMENTARY ON THIS ISSUE POSTED ABOVE IN "Responding to a Critic"