Metropolitan News-Enterprise


Friday, April 21, 2006


Page 3


Bid to Force School to Allow Anti-Gay Shirt Rejected


From Staff and Wire Service Reports


A suburban San Diego teenager who was barred from wearing a T-shirt with anti-gay rhetoric to class lost a bid to have his high school enjoined from enforcing parts of its dress code yesterday when the Ninth U.S. Circuit Court of Appeals ruled the school could restrict what students wear to prevent disruptions.

The divided panel said that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message “homosexuality is shameful.”

Tyler Chase Harper sued the Poway Unified School District in San Diego federal court after the principal at Poway High School refused to let the student attend class wearing a T-shirt scrawled with the message “homosexuality is shameful.”

Harper was a sophomore at Poway High in 2004 when he wore the T-shirt the day after a group called the Gay-Straight Alliance held a “Day of Silence” to protest intolerance of gays and lesbians. The year before, the campus was disrupted by protests and conflicts between students over the Day of Silence.

After Harper refused to take off the T-shirt, Poway High School’s principal kept Harper out of class and assigned him to do homework in a conference room for the rest of the day. He was not suspended from school.

The principal acted within his authority to protect the student body, Judge Stephen Reinhardt concluded, saying “the school is permitted to prohibit Harper’s conduct...if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities.”

U.S. District Judge John A. Houston of the Southern District of California ruled that the evidence supporting Harper’s motion for preliminary injunction was insufficient to overcome the school district’s showing that the shirt was “inflammatory” and could potentially lead to a repeat of the previous year’s confrontation over the “Day of Silence.”

Reinhardt said that even if there was no significant fear of physical confrontation, Houston’s ruling was correct because of the potential for other interference with the rights of gay students.

In doing so, the jurist distinguished Tinker v. Des Moines Indep. Cmty. Sch. Dist 393 U.S. 503, which held that students had a First Amendment right to wear black armbands as a form of silent protest against the Vietnam War.

Tinker, the judge noted, expressly allowed school authorities to act in response to a reasonable fear of disruption of the educational process and to ban speech which “intrudes upon the rights of other students.” That includes protection not only from physical attack, but from verbal assaults of the type that homosexual students are often subjected to, Reinhardt said.

Citing evidence tying anti-gay harassment to the fact that gay students perform poorly in school and drop out at higher rates than their peers, Reinhardt wrote:

“Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development.”

Judge Sidney Thomas joined in the opinion.

Judge Alex Kozinski wrote a blistering dissent, arguing that the high school had in effect authorized a heated debate over sexual orientation when it allowed the “Day of Silence.”

“Harper’s T-shirt was not an out-of-the-blue affront to fellow students who were minding their own business,” Kozinski wrote. “Rather, Harper wore his T-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities.”

There was, the dissenting jurist wrote, little evidence to support school authorities’ asserted fear of disruption, even if Harper, as they asserted, was involved in “tense verbal conversation” with those who disagreed with him.

“People—judges even—often have strong views and their discussions will naturally reflect this intensity of feeling,” the judge wrote. “There is nothing at all wrong with that, and it normally does not lead to substantial disorder. There is no indication that Harper’s discussion turned violent or disrupted school activities. There is no evidence that it involved shouting or threats, or that it interfered with the passage of students to and from class....The only thing one can infer from this evidence is that, whatever strong feelings Harper’s t-shirt may have aroused, it did not cause any disruption of school activities, substantial or otherwise.”

Jack Sleeth, a school district attorney, said that the ruling supports the district’s prohibition against T-shirts with messages that are offensive to some.

“When it violates the rights of other, then it can be prohibited,” Sleeth said. “It is that simple of an issue.”

Robert Tyler, an attorney for Harper, said he may wait until the main case is decided before determining if further appeals are necessary. “Mr. Harper’s speech was censored,” Tyler said. “There wasn’t any disruption, but there was concern that it was politically incorrect.”

The case is Harper v. Poway Unified School District, 04-57037.


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