Law & Courts

U.S. Court Backs School’s Decision to Bar Student’s Anti-Gay T-Shirt

By Andrew Trotter — April 28, 2006 4 min read

A federal appeals court’s ruling that a public school may prohibit students’ wearing of T-shirts bearing slogans that “denigrate” gay and lesbian students was hailed last week by gay-rights advocates, but drew fire from some legal observers, who said it endorsed viewpoint discrimination.

The 2-1 decision late last month by a panel of the U.S. Court of Appeals for the 9th Circuit came in a much-debated case involving a student at a California high school who wore a T-shirt calling homosexuality “shameful.”

“Those who administer our public educational institutions need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development,” U.S. Circuit Judge Stephen Reinhardt wrote for the majority.

In a sharp dissent, Judge Alex Kozinski said that “of the possible measures a school might take to deal with substantial disruption of the school environment, those involving viewpoint discrimination would seem to me to be the least justifiable.”

Some legal observers predict that a larger panel of the San Francisco-based 9th Circuit court will agree to rehear the case and that it is likely to eventually reach the U.S. Supreme Court.

“There does seem to be disagreement in the way the other circuits view the issue,” said Eugene Volokh, a law professor and constitutional scholar at the University of California, Los Angeles. He said the decision is “novel [in that] there’s an inherent right that minority group members do not have to hear speech that is considered harmful to them.”

‘Silent’ Protest

The case pits a public school’s concern about the protection of students in a minority group that has been subjected to harassment against the First Amendment free-speech rights of other students.

In 2004, Poway (Calif.) High School student Chase Harper was barred from wearing this T-shirt with an anti-gay message.

In 2004, the parents of Tyler Chase Harper, a student at Poway High School, sued the 33,000-student Poway, Calif., school district after administrators there barred him from wearing a shirt bearing the hand-lettered messages “Be ashamed, our school embraced what God has condemned” and “Homosexuality is shameful,” along with a Bible-verse citation. (“T-Shirts on Gay Issues Spur Lawsuits,” Jan. 5, 2005.)

Mr. Harper, now a senior at the school, wore his shirt on April 22, 2004, to protest his schoolmates’ participation the previous day in the annual Day of Silence, a national event sponsored by the Gay, Lesbian, and Straight Education Network in which students mark their support for gay rights by not speaking for a day.

The school had experienced altercations on the previous year’s Day of Silence, and the principal told Mr. Harper that his shirt was “inflammatory” and might cause further conflict. The student was barred from wearing the shirt in class, and upon refusing to remove the shirt, he was required to remain in the school office the rest of the day. The principal declined to suspend him.

The appeals court’s April 20 ruling upheld the denial by the U.S. District Court in San Diego of the Harper family’s request for a preliminary injunction to block the Poway district from restricting students from wearing similar T-shirts while legal proceedings continued.

Judge Reinhardt wrote that under the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District, a school may regulate student speech for one of two reasons. One is if it would result in “substantial disruption of or material interference with school activities.” The other—the reason cited by the 9th Circuit panel—is if the speech would “impinge upon the rights of other students.”

“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,” Judge Reinhardt wrote, “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,” the judge wrote, citing research documenting links between harassment at school and various ill consequences for gay students.

Dissenting View

But Judge Kozinski, in his dissenting opinion, said “it is quite clear that Harper’s lone message was not sufficiently severe and pervasive” to constitute harassment that should trump the First Amendment protection of speech.

The evidence in the case, Judge Kozinski argued, did not establish that the messages on Mr. Harper’s T-shirt “are so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment.”

The ruling drew strong reactions from various quarters.

“To censor a student’s T-shirt that addresses homosexuality or any other controversial subject undercuts the First Amendment,” said Mathew D. Staver, the president of Liberty Counsel, an Orlando, Fla.-based legal organization that often represents students on issues of religious expression in the public schools.

Mr. Staver said that although students may not libel or defame their classmates, “schools, especially high schools, need to teach the importance of vigorous speech.”

But a representative of GLSEN, based in New York City, applauded the ruling for its recognition of the treatment gay students often face in school.

“Anti-gay and lesbian harassment is one of the three leading types of bullying and harassment that takes place in schools,” said Eliza Byard, the deputy executive director of GLSEN.

The 9th Circuit court, she said, had essentially decided that Mr. Harper’s T-shirt was “a kind of unacceptable speech that crosses the line between proactive statements of belief and intimidating attacks by other students.”

A version of this article appeared in the May 03, 2006 edition of Education Week as U.S. Court Backs School’s Decision To Bar Student’s Anti-Gay T-Shirt

Events

School & District Management Webinar What's Ahead for Hybrid Learning: Putting Best Practices in Motion
It’s safe to say hybrid learning—a mix of in-person and remote instruction that evolved quickly during the pandemic—is probably here to stay in K-12 education to some extent. That is the case even though increasing
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Mathematics Webinar
Building Equitable Systems: Moving Math From Gatekeeper to Opportunity Gateway
The importance of disrupting traditional American math practices and adopting high-quality math curriculum continues to be essential for changing the trajectory of historically under-resourced schools. Building systems around high-quality math curriculum also is necessary to
Content provided by Partnership for L.A. Schools
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
Measuring & Supporting Student Well-Being: A Researcher and District Leader Roundtable
Students’ social-emotional well-being matters. The positive and negative emotions students feel are essential characteristics of their psychology, indicators of their well-being, and mediators of their success in school and life. Supportive relationships with peers, school
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts How a Cheerleader's Snapchat Profanity Could Shape the Limits of Students' Free Speech
Brandi Levy's social media post is the basis for a case before the U.S. Supreme Court on whether schools may punish off-campus speech.
9 min read
Image of Brandi Levy.
Brandi Levy, now an 18-year-old college freshman, was a cheerleader at Mahanoy Area High School in Pennsylvania when she made profane comments on Snapchat that are now at the center of a U.S. Supreme Court case on student speech rights.
Danna Singer/Provided by the American Civil Liberties Union
Law & Courts Student School Board Members Flex Their Civic Muscle in Supreme Court Free-Speech Case
Current and former student school board members add their growing voices to a potentially precedent-setting U.S. Supreme Court case.
7 min read
Image of the Supreme Court.
iStock/Getty
Law & Courts Justice Department Memo Could Stoke State-Federal Fights Over Transgender Students' Rights
Title IX prohibits discrimination on the basis of sexual orientation and gender identity in schools, a Justice Department memo says.
3 min read
Stephanie Marty demonstrates against a proposed ban on transgender girls and women from female sports leagues outside the South Dakota governor's mansion in Pierre, S.D. on March 11, 2021.
Stephanie Marty demonstrates against a proposed ban on allowing transgender girls and women to play in female sports leagues outside the South Dakota governor's mansion in Pierre, S.D.
Stephen Groves/AP
Law & Courts Diverse Array of Groups Back Student in Supreme Court Case on Off-Campus Speech
John and Mary Beth Tinker, central to the landmark speech case that bears their name, argue that even offensive speech merits protection.
5 min read
In this photo taken Tuesday, Aug. 27, 2013, Mary Beth Tinker, 61, shows an old photograph of her with her brother John Tinker to the Associated Press during an interview in Washington. Tinker was just 13 when she spoke out against the Vietnam War by wearing a black armband to her Iowa school in 1965. When the school suspended her, she took her free speech case all the way to the U.S. Supreme Court and won. Her message: Students should take action on issues important to them. "It's better for our whole society when kids have a voice," she says.
In this 2013 photo, Mary Beth Tinker shows a 1968 Associated Press photograph of her with her brother John Tinker displaying the armbands they had worn in school to protest the Vietnam War. (The peace symbols were added after the school protest). The Tinkers have filed a brief in the U.S. Supreme Court supporting a Pennsylvania student who was disciplined for an offensive message on Snapchat.
Manuel Balce Ceneta/AP