The theoretical core of support for racial preferences is rejection of the principle of neutral, colorblind equal treatment. Neutral, colorblind equal treatment, so the argument goes, merely reinforces the results of past discrimination. True equality, the preferentialists proclaim, requires “taking race into account” and treating some people better than others based on their race.
But if this is true, or persuasive, why stop with rejecting neutral, colorblind equality in employment and admissions? Logically, there is no reason to stop there, and so (naturally, some might say) a liberal judge, Stephen Reinhardt, has written an opinion for the Ninth Circuit removing that stop and endorsing racial preferences in interpreting the First Amendment.
According to this opinion, Eugene Volokh wrote here,
“derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” — which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations — are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates “the rights of other students” by constituting a “verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.”
This isn’t limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a “severe or pervasive” requirement such as that requirement to make speech into “hostile environment harassment” (a theory that poses its own constitutional problems, but at least doesn’t restrict individual statements).
Rather, any T-shirt that condemns homosexuality is apparently unprotected. So are “display[s of the] Confederate Flag,” and T-shirts that say “All Muslims Are Evil Doers.”
There is thus no First Amendment protection for derogatory remarks about students’ “minority status such as race, religion, and sexual orientation,” Volokh wrote today (here),
even if the remarks deal with important public debates, aren’t personally addressed to any particular person, are in response to expressions of contrary views, and haven’t been found to create a substantial risk of disruption.
This actually makes perfect sense to me. That is, once you reject the principle of colorblind equal treatment in the law governing racial discrimination in employment or college admissions, why not reject it for speech and religion as well?
Can it be long before Reinhardtian liberals change their tune about the separation of church and state and begin calling for government aid and support to minority religions?
Well, yeah – and what about that old idea of taking race into account when grading in college? The preferential admissions only gets people in the door, but doesn’t give the “beneficiaries” of such largesse that much of a step up when it comes to actually graduating or getting good GPAs (which is sometimes used as an HR screen for hires for certain careers… actuarial, for example. Of course, to be an actuary you’ve got to pass a series of exams which also don’t take race into account, and that’s just not fair.)
Volokh also quotes something else Reinhardt wrote just four years ago:
“I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) (“[T]he First Amendment [is] the guardian of our democracy.”) First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation’s officials or policies for any reason whatsoever.”