Court Lets Schools Ban Inflammatory T-Shirts

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.”