Student's anti-gay T-shirt not protected by First Amendment, court rules





CALIFORNIA -- A federal appeals court ruled yesterday that a school district was justified in barring a student from wearing a T-shirt with anti-gay statements.

School officials can restrict what students wear to avoid violating the rights or well-being of vulnerable student populations like gay students, according to the decision handed down by the 9th U.S. Circuit Court of Appeals.

In a 2-1 decision, the court held that officials at Poway High School in Poway, Calif., did not violate student Tyler Harper's First Amendment rights when they forbade him from wearing a T-shirt that said, ''Homosexuality Is Shameful'' at school.

Judge Alex Kozinksi issued the dissenting opinion, asserting that school officials were wrong to censor Harper because there was no evidence gay students were harmed by his wearing of the T-shirt, which also said, ''Be Ashamed, Our School Embraced What God Has Condemned.''

Robert Tyler, an attorney representing Harper in the case, said he will petition immediately for an en banc re-hearing, where the entire panel of circuit judges is called to re-hear and rule on the appeal. He said is also considering taking Harper's case to the U.S. Supreme Court.

Harper was a sophomore at Poway High School when he wore the T-shirt in April 2004 in response to a ''Day of Silence,'' an occasion organized by the Gay-Straight Alliance at the school to ''teach tolerance of others, particularly those of a different sexual orientation,'' according to the decision.

Harper was not suspended for wearing the T-shirt, but was asked by administrators to remain in the front office for the rest of the day.

He filed his lawsuit against the school district in June 2004, alleging violations of his First Amendment right to religion and free speech. The school district responded with a motion to dismiss the claims. The district court upheld Harper's First Amendment claims, but dismissed his motion for a preliminary injunction against the school's dress code policy.

Harper's attorneys then filed an appeal with the federal appeals court to review the lower court's ruling on the injunction.

In the opinion, the 9th Circuit decision focused on a provision from Tinker v. Des Moines Independent Community School District, the landmark 1969 Supreme Court case that recognized the First Amendment rights of high school students at school.

Student speech is not constitutionally protected, the

Tinker decision said, when the speech ''intrudes upon ... the rights of other students.''

''We conclude that Harper's wearing of his T-shirt 'colli[des] with the rights of other students' in the most fundamental way,'' the decision said.

According to the decision, gay students are more vulnerable to peer harassment that may affect their academic performance and well-being.

T-shirts that express dissenting political opinions or spark political debate do not violate the ''rights of others'' as defined in Tinker, the decision said, and therefore are not harmful enough to limit students' First Amendment rights to wear them.

The decision also referenced

Hazelwood School District v. Kuhlmeier, a 1988 Supreme Court case that concluded the free speech rights of public school students are not necessarily the same as those of adults in other settings.

The decision admitted that neither party in the lawsuit recognized Harper's speech as ''school-sponsored,'' the kind of speech addressed in Hazelwood.

But the court did say that Hazelwood allows school officials to encourage student speech that espouses ''tolerance, equality and democracy'' without providing equal opportunity for student speech that espouses ''intolerance, bigotry or hatred.''

The majority opinion strayed from past precedence to ''establish a new law,'' said Tyler, Harper's attorney.

''I really see this as a very bad decision cloaked in a veil of tolerance,'' he said. ''If the school did not want Harper to engage in the expression he did, they simply should have prohibited the entire topic of homosexuality from being discussed on campus, as opposed to taking one side of the debate.''


California, news, Poway High School

More Information

  • Case: Harper v. Poway Unified School Dist., No. 04-57037 (9th Cir. Apr. 20, 2006)