Appeals Court Rejects Request To Rehear Anti-Gay T-shirt Case

POWAY, CALIFORNIA — The 9th U.S. Circuit Court of Appeals this week denied an appeal for the full court to hear the case of a student who was prohibited from wearing a T-shirt with anti-gay statements.
The appeal followed a 2-1 9th Circuit panel decision in April in favor of the Poway Unified School District in Poway.
In April, the panel found administrators at Poway High School did not violate Tyler Harper’s First Amendment rights when they banned him from wearing a T-shirt that read “Be ashamed, our school embraced what God has condemned,” on the front, and “Homosexuality is shameful,” on the back.
In a fiery opinion released Monday, the judges opposed to granting the re-hearing said Harper’s shirt was tantamount to wearing a shirt that says, “Hide Your Sisters — The Blacks Are Coming,” and said allowing such slogans violates the U.S. Supreme Court’s 1969 precedent in Tinker v. Des Moines Independent Community School District.
In Tinker, the Court ruled that in order to censor a student publication, administrators must prove that the material would create a “substantial disruption” of normal school activities or would invade the rights of others.
“The dissenters still don’t get the message — or Tinker!” the opinion read. “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.”
The opinion went on to say that school administrators’ prohibition of the anti-gay T-shirt was “consistent with Tinker’s protection of the right of individual students ‘to be secure and to be let alone.’”
Five judges supported Harper’s request for an en banc hearing, and in a dissent they said by not rehearing the case, the court was permitting the district to engage in viewpoint discrimination.
“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,” the dissent read.
Robert Tyler, Harper’s lawyer, could not immediately be reached for comment Tuesday.
Harper was a sophomore in April 2004 when he wore the controversial T-shirt in response to a Gay-Straight Alliance club’s “Day of Silence” at his school. He was asked to remain in the office for the remainder of the school day, but was not suspended.
He responded by filing a lawsuit against school administrators, claiming they had violated his First Amendment rights to freedom of speech and religion. A federal district court initially upheld Harper’s First Amendment claims, but the 9th Circuit panel overturned its decision, citing Tinker.
Harper’s final appeal option is with the U.S. Supreme Court, which must be filed within 90 days.
from Student Press Law Center