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Anti-Gay T-Shirt Ban Upheld

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Federal appeals court says school can impose speech limits to protect other students’ rights

In an important ruling preliminarily vindicating a school district’s attempt to combat student homophobia, a panel of the U.S. 9th Circuit Court of Appeals, based in San Francisco, ruled that high schooler Tyler Harper did not have a right to a preliminary injunction ordering the Poway Unified School District to allow him to wear his anti-gay T-shirt to class.

The April 20 opinion by Judge Stephen Reinhardt drew a spirited dissent from Judge Alex Kozinski, who argued that the boy’s First Amendment rights were being violated.

School administrators walk a tricky line regarding permissible control over student expression. In cases dating back to the Vietnam War, the Supreme Court has ruled that students are entitled to engage in political speech at school, provided that they are not disrupting the educational environment for others. In the most important case, in 1969, the Court held that administrators could not require high school students to remove armbands protesting the Vietnam War unless they could show such disruption.

However, in a little-noted phrase, the Supreme Court also said that administrators could regulate student speech that would “impinge upon the rights of other students.” The 9th Circuit majority rested its ruling solidly on this point.

Tyler Harper was evidently offended when gay students at the school collaborated with the administration on a Day of Silence to promote tolerance for sexual minorities. According to Reinhardt’s opinion, Harper’s father is a deeply religious man and Tyler felt the need to speak out for the view that homosexuality is sinful.

The younger Harper rigged up an anti-gay T-shirt to wear on the Day of Silence in April 2004. The shirt’s front read, “I will not accept what God has condemned,” and the back, “Homosexual­ity is shameful ‘Romans 1:27.’” Getting little attention that day, Harper improvised a more forceful message for the following day: “Be ashamed, our school embraced what God has condemned.” He was sent to the principal’s office, where he was told he could not return to class wearing the shirt. Harper, defiant, demanded that he be suspended. The principal refused to rise to the bait, instead restricting him to the administrative offices for the rest of the day. He was not disciplined any further.

Harper contacted the Alliance Defense Fund—a right-wing outfit that specializes in suing schools to advance an anti-gay agenda—which filed the case against the school district on behalf of the Harper family, citing infringements on freedom of speech, free exercise of religion, and equal protection of the laws, among other grounds.

The lawsuit took aim at the school’s dress code and harassment policies, as well as the action against Harper’s T-shirt. When the school responded with a motion to dismiss the case, Alliance replied with a motion for a preliminary injunction, seeking to bar the school from “continuing its violation of the constitutional rights of plaintiff Tyler Chase Harper” pending a trial.

The trial judge, U.S. District Judge John A. Houston, dismissed all but the three First Amendment claims and rejected Harper’s motion for preliminary injunctive relief, opining that his chances of prevailing on the merits were poor—administra­tors were warranted in banning a T-shirt that, in their view, was calculated to cause disruption.

Harper appealed the denial of the preliminary injunction. The 9th Circuit denied the appeal, but not based on Houston’s reliance on the Supreme Court’s disruption concept. Judge Reinhardt’s opinion, instead, focuses on the idea that Harper’s T-shirt would “impinge upon the rights of other students,” in particular, LGBT students, with “speech capable of causing psychological injury.”

“We conclude that Harper’s wearing of his T-shirt ‘collides with the rights of other students’ in the most fundamental way,” wrote 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”

Among many statistics backing up this perspective, Reinhardt wrote, “One study has found that among teenage victims of anti-gay discrimination, 75 percent experienced a decline in academic performance, 39 percent had truancy problems, and 28 percent dropped out of school.”

The court concluded that a school has a compelling interest in maintaining a respectful atmosphere that justifies a certain amount of censorship and that it was not violating Harper’s right to maintain his religious beliefs, merely restricting the time and place at which he can voice those beliefs.

In his lengthy dissent, Judge Kozinski, who positions himself as a First Amendment defender against the forces of political correctness, pronounced total disagreement, arguing vehemently that Harper had “raised a valid facial challenge to the school’s harassment policy.”

Kozinski was very critical of a policy that, as he characterized it, seemed calculated to shelter students from hotly contested issues at the heart of public debate. In his description, the school’s harassment policy essentially prohibits any speech that anyone might find irritating or offensive. Kozinski suggests that this goes well beyond the 1969 Supreme Court precedent—and said that if it does not then that long-standing decision should be reconsidered.

Denial of preliminary relief does not end the case, but the 9th Circuit has sent a strong signal to the trial judge that a majority of the appellate panel does not think there is much merit to Harper’s claims.

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Updated 5:17 pm, July 20, 2018
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