Lawsuit Pits Gay Rights, Free Speech

A federal judge is to consider a case today that began with a provocative T-shirt and now pits freedom of speech against a school district’s effort to protect gay students.

At issue is a high school junior’s desire to wear a T-shirt to school saying that homosexuality is shameful and has been condemned by God.

Tyler Chase Harper, 16, wore the shirt to Poway High School last spring during a school-sponsored day meant to promote tolerance of gays and lesbians. Administrators told him that the shirt violated school policy and that he would be suspended if he tried to wear it on campus.

On behalf of the teenager, the Alliance Defense Fund, based in Scottsdale, Ariz., filed a suit against the Poway Unified School District alleging that he was being denied his constitutional rights.

The group is asking U.S. District Court Judge John Houston to order the district to allow Harper to wear the shirt.

“The school district wants Tyler Chase Harper to be politically correct,” said Alliance attorney Robert Tyler. “We want the school district to be constitutionally correct.”

Bill Chiment, the district’s assistant superintendent, said school officials are trying to decrease tensions between gay and straight students and feel caught between the 1st Amendment and a new state law banning discrimination based on sexual orientation.

“What is interesting here is that we have two sides of a social-political issue pushing us in the direction they think society should move,” he said. “The school just happens to be the arena.”

The T-shirt incident occurred April 22 during the national Day of Silence, an annual event sponsored by gay-rights groups. The Gay-Straight Alliance, a student group, had received approval for the school to observe the day.

The Alliance Defense Fund has litigated numerous cases nationwide involving what it sees as infringements on religious rights.

It has also sued California over a state law permitting benefits to registered domestic partners.

On the Day of Silence, Harper wore a T-shirt that read: “Homosexuality Is Shameful” and “Our School Embraced What God Has Condemned.” The shirt also cited the Bible passage Romans 1:27, which some Christian groups believe shows God’s disapproval of homosexuals.

Set in an upper-middle-class suburb north of San Diego, Poway High has had several confrontations between gay and straight students, including name-calling, food-throwing and pushing.

In an unrelated incident, two gay students are suing the district for allegedly not protecting them from harassment.

After Harper was prohibited from wearing the T-shirt, students put up a banner across from the school reading “Chase Rocks.” T-shirts were also printed that said: “We Support Chase.”

The school district argues that Harper’s T-shirt has the same potential for causing trouble on campus as a shirt with a swastika or derogatory racial reference.

The school district’s dress code, given to every student, bans T-shirts with drug or sexual references and derogatory references to specific groups.

Tyler, the Alliance attorney, said it is outrageous to compare a religious viewpoint to a swastika.

“When are school officials going to learn they are not allowed to silence constitutionally protected student speech because they disagree with the student?” Tyler asked.

Constitutional experts split on the subject of when schools can curb students’ 1st Amendment rights.

Douglas Kmiec, a constitutional expert at Pepperdine law school, said the U.S. Supreme Court has given school districts wide latitude to regulate student speech if it can be shown that certain statements are lewd or vulgar, would detract from an educational program, or are likely to cause disruption.

A school district, Kmiec said, has to balance “the idea of being a place open to ideas, even ideas with which it might disagree, while at the same time living with the practical reality of having to keep the school as a place safe from fistfights, hatred and serious injury.”

But Jesse Choper, a law professor at UC Berkeley’s Boalt Hall, said the T-shirt seems more akin to the black armbands worn by students opposed to the Vietnam War than to a swastika. The Supreme Court upheld the wearing of armbands.

“I think the kid has a good shot,” Choper said. The T-shirt “sounds to me like a silent protest. This is not a frivolous 1st Amendment case.”