Schools May Restrict Anti-Gay Speech, Judge Rules

By Mark Walsh — February 13, 2008 2 min read
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Public school officials may restrict speech disparaging homosexuality, a federal district judge has ruled.

The Feb. 12 decision is the latest in a long-running case stemming from an incident in which a California high school student wore a T-shirt with hand-lettered messages that said, “Homosexuality is shameful. Romans 1:21,” and “Be ashamed.”

“In this court’s view, a school’s interest in protecting homosexual students from harassment is a legitimate pedagogical concern that allows a school to restrict speech expressing damaging statements about sexual orientation and limiting students to expressing their views in a positive manner,” said the ruling by U.S. District Judge John A. Houston in Harper v. Poway Unified School District.

“There is no doubt in this court’s mind that the phrase “Homosexuality is shameful” is disparaging of, and emotionally and psychologically damaging to, homosexual students and students in the midst of developing their sexual orientation in a 9th through 12th grade, public school setting,” the judge added.

The case has had a long and somewhat tortuous procedural history, which I won’t detail here. The U.S. Supreme Court last year ordered a federal appeals court to toss out the case as moot because the student who wore the T-shirt, Tyler Chase Harper, had long since graduated from high school. I wrote about that development in Education Week here.

Harper’s sister, Kelsie K. Harper, has since been substituted as the student in the case. The Harpers are represented by the Alliance Defense Fund, which put out this alert about the latest decision (and provided the above link to Judge Houston’s opinion).

The San Diego Union-Tribune reports on the case here.

Judge Houston rejected free speech arguments made on behalf of the Harpers, and he said the Supreme Court’s decision last year in Morse v. Frederick “affirms that school officials have a duty to protect students, as young as 14 and 15 years of age, from degrading acts or expressions that promote injury to the student’s physical, emotional or psychological well-being and development which, in turn, adversely impacts the school’s mission to educate them.”

The Morse decision involved a student who was disciplined for displaying a “Bong Hits 4 Jesus” banner at his Alaska high school. See Education Week‘s coverage here.

The Harper case has been closely watched by school administrators, free speech advocates, conservative legal groups, and others, and one thing seems certain: Yesterday’s ruling is not the last word.

A version of this news article first appeared in The School Law Blog.