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Education Reporter

Student's First Amendment Rights
Denied by Ninth Circuit Court

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With sharply divided opinions among its three judges, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a ruling striking down a California student's right to wear a t-shirt opposing homosexuality.

In April 2004, Tyler Chase Harper, a student at Poway High School near San Diego, Calif., wore shirts to school on two days bearing separate messages: "I will not accept what God has condemned" and "Be ashamed, our school embraced what God has condemned." On the back of the shirts were handwritten: "Homosexuality is shameful, 'Romans 1:27.'"

On the second day, school administration requested Harper change his shirt. The student refused. Consequently, Harper spent the rest of the day in the school's front office versus being suspended as the student requested.

Harper, through his parents, filed a lawsuit on June 2, 2004 against Poway Unified School District and specific school officials, alleging a breach of his right to free speech, free exercise of religion, the Establishment Clause, the Equal Protection Clause, and the Due Process Clause. On July 12, 2004, Harper filed a preliminary injunction against the school to stop the "continuing violation" of his constitutional rights.

In his dissenting opinion against the majority decision, Judge Alexander Kozinski drew attention to the fact that the student "did not thrust his view of homosexuality into the school environment as a part of a campaign to demean or embarrass other students. Rather, he was responding to public statements made by others with whom he disagreed."

"Day of Silence" ignites contention 
Poway High School has a history of problems centered around the school sanctioning the "Day of Silence," including altercations and incidents that took place surrounding the event in 2003. Several students were suspended as a result.

One week after the 2003 "Day of Silence," a "Straight-Pride Day" was informally organized by heterosexual students. Contention was also involved and students were suspended.

Harper contends the "Day of Silence" was to "endorse, promote and encourage homosexual activity" and that he had a right to respond to the pro-gay activity brought into school. Assistant Principal Lynell Antrim described the event as "a student activity trying to raise other students' awareness regarding tolerance in their judgement [sic] of others."

The "Day of Silence" is a nationally promoted political activity. The event is sponsored by the Gay, Lesbian and Straight Education Network (GLSEN). GLSEN describes the event as "an annual, national student-led effort in which participants take a vow of silence to peacefully protest the discrimination and harassment faced by lesbian, gay, bisexual and transgender (LGBT) youth in schools." (GLSEN, Press Release, 4-14-2004)

Judge Kozinski expressed in his position: "I find it far more problematic — and more than a little ironic — to try to solve the problem of violent confrontations by gagging only those who oppose the Day of Silence and the point of view it represents. Or, as Judge Rosen put it in Hansen v. Ann Arbor Public Schools, 293 F. Supp. 2d 780 (E.D. Mich. 2003), '[t]hat Defendants can say with apparent sincerity that they were advancing the goal of promoting "acceptance and tolerance for minority points of view" by their demonstrated intolerance for a viewpoint that was not consistent with their own is hardly worthy of serious comment'."

Kozinski reflected on another pertinent quote by Judge Rosen: "no matter how well-intentioned the stated objective, once schools get into the business of actively promoting one political or religious viewpoint over another, there is no end to the mischief that can be done in the name of good intentions."

Court opinion split 2-1 
The trial court decision by District Judge John A. Houston to suppress Harper's first amendment rights was endorsed in a majority opinion by appellate Judges Stephen Reinhardt and Sidney Thomas, who held that the first amendment did not protect students expressing their views opposing homosexuality. The rational was that anti-homosexual messages were not protected because they caused 'psychological injury' and lowered the self-esteem of other students.

Dissenting, Judge Kozinski challenged his colleagues' thinking: "While I find this a difficult and troubling case, I can agree with neither the majority's rationale nor its conclusions. On the record to date, the school authorities have offered no lawful justification for banning Harper's t-shirt and the district court should therefore have enjoined them from doing so pending the outcome of this case. Harper, moreover, raised a valid facial challenge to the school's harassment policy, and the district court should have enjoined the policy as well."

Judge Kozinski noted the t-shirt neither infringed on homosexual students' rights nor hindered their ability to engage in school activity: "Nor can I join my colleagues in concluding that Harper's t-shirt violated the rights of other students by disparaging their homosexual status. As I understand the opinion, my colleagues are saying that messages such as Harper's are so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment. This is not a position briefed or argued by any of the parties, and no one introduced any evidence in support of, or opposition to, this proposition. The school authorities did not try to justify their actions on this ground; instead, they argued that they can ban any t-shirt derogatory to another individual, a proposition that the majority rejects."

Kozinski also offered the following assessments about PISD harassment policies involved in the case:

". . . the policy here focuses expressly on what the individual who believes himself to be the target of the speech believes was the motivation of the speaker. Given the propensity of individuals, particularly adolescents, to view themselves as the center of the universe, this strikes me as a particularly broad and chilling aspect of the policy."

"As the Saxe court noted, '[t]he Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.'"

". . . the policy here . . . prohibits not only speech that denigrates others, but also any speech that the student seeks to justify by expressing pride in his own traits. We are taught to take pride in who we are; it is, in a sense, the American way. It seems particularly chilling to free expression to restrain speech that expresses pride in one's own religion, ethnicity, sexual orientation, etc."

In an unrelated case, Arizona's second largest school district, Tucson Unified, is under state legislative investigation for district administration support of immigration-related political protests and partisan political endorsements. (See "Arizona District Encounters Scrutiny; Criticism About Political Agendas in Schools," Education Reporter, May 2005)

Most reversed court 
Columnist John Leo pointed out in his commentary about the Harper ruling, "If this case goes to the Supreme Court, the eccentric 9th Circuit ruling is very likely to be overturned. It will be one more reversal for the most reversed district court in the nation." (Townhall.com, 4-23-2006)

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