Metropolitan News-Enterprise


Tuesday, August 1, 2006


Page 1


Ninth Circuit Denies Review of Ruling on Anti-Gay Shirt




The Ninth U.S. Circuit Court of Appeals yesterday denied en banc review of an April ruling allowing a suburban San Diego school district to bar a high school student from wearing a T-shirt featuring anti-gay rhetoric to class.

In a brief order, the court said that a majority of its active judges voted not to reconsider a divided panel’s conclusion 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 “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” on the front and “HOMOSEXUALITY IS SHAMEFUL” on the back.

Five judges joined in a dissent from the denial of en banc rehearing, arguing that the school district was discriminating against Harper on the basis of his anti-gay viewpoint. That drew unusual responses from two judges, one of whom described the message on the shirt as “hate speech.”

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.

In denying Harper’s motion for a preliminary injunction, U.S. District Judge John A. Houston of the Southern District of California said the plaintiff could not 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.”

In his opinion for the court, Judge Stephen 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.

He cited evidence tying anti-gay harassment to the fact that gay students perform poorly in school and drop out at higher rates than their peers.

Judge Sidney Thomas joined in the opinion, while Judge Alex Kozinski, in a blistering dissent, argued 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.

Judge Diarmuid F. O’Scannlain, joined yesterday by Judges Carlos Bea, Andrew Kleinfeld, Richard Tallman, and Jay Bybee, endorsed and elaborated on Kozinski’s view.

“Harper’s shirt was undoubtedly unpleasant and offensive to some students, but Tinker does not permit school administrators to ban speech on the basis of ‘a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,’” O’Scannlain wrote.

The dissenting jurist took issue with Reinhart’s characterization of the shirt’s message as on attack on gay students.

“According to the panel majority, a student’s ‘right to be let alone” now includes a right to be free from ‘verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation,’” O’Scannlain wrote “...But if displaying a distasteful opinion on a T-shirt qualifies as a psychological or verbal assault, school administrators have virtually unfettered discretion to ban any student speech they deem offensive or intolerant.”

Reinhardt responded that his dissenting colleagues “still don’t get the message — or Tinker!”

He wrote:

“Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply ‘unpleasant and offensive.’ It strikes at the very core of the young student’s dignity and self-worth.”

Judge Ronald Gould, in a one-sentence opinion explaining his opposition to en banc review, wrote:

“Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms.”

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


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