CALIFORNIA — Afederal appeals court ruled yesterday that a school district was justified inbarring a student from wearing a T-shirt with anti-gaystatements.
School officials can restrict what students wear to avoidviolating the rights or well-being of vulnerable student populations like gaystudents, according to the decision handed down by the 9th U.S. Circuit Court ofAppeals.
In a 2-1 decision, the court held that officials at PowayHigh School in Poway, Calif., did not violate student Tyler Harper’s FirstAmendment rights when they forbade him from wearing a T-shirt that said, ”Homosexuality Is Shameful” at school.
Judge AlexKozinksi issued the dissenting opinion, asserting that school officials werewrong to censor Harper because there was no evidence gay students were harmed byhis wearing of the T-shirt, which also said, ”Be Ashamed, Our SchoolEmbraced What God Has Condemned.”
Robert Tyler, an attorneyrepresenting Harper in the case, said he will petition immediately for anen banc re-hearing, where the entirepanel of circuit judges is called to re-hear and rule on the appeal. He said isalso considering taking Harper’s case to the U.S. SupremeCourt.
Harper was a sophomore at Poway High School when he wore theT-shirt in April 2004 in response to a ”Day of Silence,” an occasionorganized by the Gay-Straight Alliance at the school to ”teach toleranceof others, particularly those of a different sexual orientation,”according to the decision.
Harper was not suspended for wearing theT-shirt, but was asked by administrators to remain in the front office for therest of the day.
He filed his lawsuit against the school district inJune 2004, alleging violations of his First Amendment right to religion and freespeech. The school district responded with a motion to dismiss the claims. Thedistrict court upheld Harper’s First Amendment claims, but dismissed his motionfor a preliminary injunction against the school’s dress codepolicy.
Harper’s attorneys then filed an appeal with the federalappeals court to review the lower court’s ruling on theinjunction.
In the opinion, the 9th Circuit decision focused on aprovision from Tinker v. Des MoinesIndependent Community School District, the landmark 1969 Supreme Courtcase that recognized the First Amendment rights of high school students atschool.
Student speech is not constitutionally protected, the
Tinker decision said, when the speech”intrudes upon … the rights of otherstudents.”
”We conclude that Harper’s wearing ofhis T-shirt ‘colli[des] with the rights of other students’ in themost fundamental way,” the decision said.
According to thedecision, gay students are more vulnerable to peer harassment that may affecttheir academic performance and well-being.
T-shirts that expressdissenting political opinions or spark political debate do not violate the”rights of others” as defined inTinker, the decision said, andtherefore are not harmful enough to limit students’ First Amendment rightsto wear them.
The decision also referenced
Hazelwood School District v. Kuhlmeier,a 1988 Supreme Court case that concluded the free speech rights of public schoolstudents are not necessarily the same as those of adults in othersettings.
The decision admitted that neither party in the lawsuitrecognized Harper’s speech as ”school-sponsored,” the kind ofspeech addressed inHazelwood.
But the court didsay that Hazelwood allows schoolofficials to encourage student speech that espouses ”tolerance, equalityand democracy” without providing equal opportunity for student speech thatespouses ”intolerance, bigotry or hatred.”
The majorityopinion strayed from past precedence to ”establish a new law,” saidTyler, Harper’s attorney.
”I really see this as a verybad decision cloaked in a veil of tolerance,” he said. ”If theschool did not want Harper to engage in the expression he did, they simplyshould have prohibited the entire topic of homosexuality from being discussed oncampus, as opposed to taking one side of thedebate.”