Court
Lets Schools Ban Inflammatory T-Shirts
A federal appeals panel rules that an anti-gay slogan sported by a San
Diego-area high school student interfered with others' right to learn.
By Henry Weinstein
Los
Angeles Times
April 21, 2006
Schools in the Western United States can forbid a high school student
to wear a T-shirt with a slogan that denigrates gay and lesbian
students, a sharply divided federal appeals court in San Francisco
ruled Thursday.
In a 2-1 decision, the U.S. 9th Circuit Court of Appeals said that a
T-shirt that proclaimed "Be ashamed, our school embraced what God has
condemned" on the front and "Homosexuality is shameful" on the back was
"injurious to gay and lesbian students and interfered with their right
to learn." Wearing such a T-shirt can be barred on a public high school
campus without violating the 1st Amendment, the court said.
In numerous instances, the U.S. Supreme Court has held that Americans
must tolerate offensive speech, including permitting marches by Nazis
through a community with a substantial Jewish population. However, the
majority ruled in this instance that some limitations were permissible
in a public secondary school setting.
The court concluded that San Diego-area high school student Tyler
Harper's donning of the T-shirt "collides with the rights of other
students in the most fundamental way," wrote 9th Circuit Judge Stephen
Reinhardt.
"Public school students who may be injured by verbal assaults on the
basis of a core identifying characteristic such as race, religion, or
sexual orientation have a right to be free from such attacks while on
school campuses," Reinhardt said. "Being secure involves not only the
freedom from physical assaults but from psychological attacks that
cause young people to question their self-worth and their rightful
place in society."
Judge Alex Kozinski issued a strong dissent. "While I find this a
difficult and troubling case," the Poway Unified School District has
"offered no lawful justification for banning Harper's T-shirt."
There was no evidence that gay students were harmed by derogatory
messages of the type conveyed on Harper's T-shirt, Kozinski said.
Moreover, Kozinski, an appointee of former President Reagan, said there
was no indication that a discussion that Harper had with other students
about the T-shirt "turned violent or disrupted school activities."
In fact, Kozinski said, "while words were exchanged, the students
managed the situation well and without intervention from the school
authorities. No doubt, everyone learned an important civics lesson
about dealing with others who hold sharply divergent views."
Thursday's ruling comes amid a growing campaign across the country to
force public schools, state universities and private companies to annul
policies protecting gays and lesbians from harassment. Plaintiffs in
several lawsuits are seeking to knock out tolerance programs on the
grounds that they violate their religious beliefs, which condemn
homosexuality.
The sharply clashing views of Reinhardt and Kozinski, who usually agree
on free speech cases, reflects that the case poses "an enormously
difficult issue — the tension between schools wanting to create a more
tolerant learning environment and the important value of protecting the
free speech of students," said Erwin Chemerinsky, a constitutional law
professor at Duke University in North Carolina. He said that in recent
years appellate courts had overwhelmingly sided with school officials
who had restricted the speech of high school students.
But UCLA constitutional law professor Eugene Volokh said he found the
majority opinion "very troubling…. This is very much contrary to basic
principles that the 1st Amendment is viewpoint neutral. It protects
hostile viewpoints as well as tolerant ones," Volokh said. He predicted
that the issue would reach the U.S. Supreme Court.
The 9th Circuit decision stemmed from an incident in April 2004, when
Harper, then a sophomore at Poway High School, wore the T-shirt to
protest a Day of Silence at the campus intended, in the words of a
school official, to "teach tolerance of others, particularly those of a
different sexual orientation."
A teacher at the school told Harper that he believed the shirt was
inflammatory, violated the school's dress code and "created a negative
and hostile working environment for others." When Harper refused to
remove the shirt and asked to speak to a school administrator, the
teacher gave him a dress-code violation card to take to the front
office.
After meeting with Harper, school Principal Scott Fisher said Harper
could not wear the shirt on campus but declined to suspend him as
Harper requested. Rather, Fisher required Harper to stay in the
school's front office the remainder of day. He was not disciplined in
any other way.
About six weeks later, Harper, represented by two Christian-oriented
legal organizations, sued the school district, contending that both his
right to free speech and freedom of religion had been violated. Harper
asserted that wearing the T-shirt was "motivated by sincerely held
religious beliefs" regarding homosexuality and that the school
"punished" him for expressing them. He also said the school had
"attempted to change" his religious views.
U.S. District Judge John Houston in San Diego ruled that Harper was not
entitled to a preliminary injunction barring the district from
enforcing its dress code. The 9th Circuit majority upheld Houston and
rejected all of Harper's arguments. The panel has jurisdiction over
federal appeals in California and eight other Western states.
At this stage, the 9th Circuit was reviewing Houston's ruling on the
preliminary injunction. He is still considering Harper's larger
constitutional challenge. However, Thursday's ruling will shape the
rest of the case in a profound way.
Both Reinhardt, an appointee of former President Carter, and Judge
Sidney R. Thomas, a Clinton appointee who joined the majority opinion,
are strong supporters of the 1st Amendment. Their opinion emphasized
that it was limited to high schools and elementary schools, and that
the T-shirt would be permissible on a college campus.
The majority cautioned that "it is essential that students have the
opportunity to engage in full and open political expression" and that
"limitations on student speech must be narrow…. Accordingly, we limit
our holding to instances of derogatory and injurious remarks directed
at students' minority status such as race, religion and sexual
orientation."
The ruling came just a few days before Poway High is scheduled to have
its next Day of Silence, which will be followed by a Day of Truth.
Harper's photograph appears on the Day of Truth website, which says the
day was "established to counter the promotion of the homosexual agenda
and express an opposing viewpoint from a Christian perspective."
The website encourages students to wear Day of Truth T-shirts and to
hand out cards (not during class time) saying, among other things, that
"Silence isn't freedom. It's a constraint. Truth tolerates open
discussion, because the truth emerges when healthy discourse is
allowed."
Harper is now a senior at Poway High and will be heading off to college
in the fall.
Both his lawyer, Robert Tyler, and an attorney for the school district,
Jack M. Sleeth, said Harper was an excellent student and had no
disciplinary record.
Sleeth said the case clearly had broad ramifications. "This is not just
about Poway; it is about the rights of various people, including gay
students in schools everywhere and students with religious opinions,"
he said.
Tyler, general counsel of Advocates for Faith and Freedom, said he was
disappointed with the majority ruling and had not decided whether to
appeal.
Even in the midst of his blistering dissent, Kozinski acknowledged that
he had sympathy for the position of Poway officials "that students in
school are a captive audience and should not be forced to endure speech
that they find offensive and demeaning."
"There is surely something to the notion that a Jewish student might
not be able to devote his full attention to school activities if the
fellow in the seat next to him is wearing a T-shirt with the message
'Hitler Had the Right Idea' in front and 'Let's Finish the Job!' on the
back," Kozinski said.
"This T-shirt may well interfere with the educational experience even
if the two students never come to blows or even have words about it."
Nonetheless, Kozinski chided the majority for concluding that it was
permissible to suppress points of view while extolling the virtues of
tolerance. "One man's civic responsibility," he wrote, "is another
man's thought control."