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Student's anti-gay T-shirt not protected by First Amendment, court rules
April 21, 2006
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.”
—by Allison
Retka, SPLC staff writer
© 2006 Student Press Law Center
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For More Information:
- Case: Harper v. Poway Unified School Dist., No. 04-57037 (9th Cir. Apr. 20, 2006)
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