CALIFORNIA — The9th U.S. Circuit Court of Appeals this week denied an appeal for the full courtto hear the case of a student who was prohibited from wearing a T-shirt withanti-gay statements.
The appeal followed a 2-1 9th Circuit paneldecisionin April in favor of the Poway Unified School District in Poway.
InApril, the panel found administrators at Poway High School did not violate TylerHarper’s First Amendment rights when they banned him from wearing aT-shirt that read “Be ashamed, our school embraced what God hascondemned,” on the front, and “Homosexuality is shameful,” onthe back.
In a fieryopinionreleased Monday, the judges opposed to granting the re-hearing saidHarper’s shirt was tantamount to wearing a shirt that says, “HideYour Sisters — The Blacks Are Coming,” and said allowing suchslogans violates the U.S. Supreme Court’s 1969 precedent inTinker v. Des Moines Independent CommunitySchool District.
InTinker, the Court ruled that in orderto censor a student publication, administrators must prove that the materialwould create a “substantial disruption” of normal school activitiesor would invade the rights of others.
“The dissenters stilldon’t get the message — orTinker!” the opinion read.”Advising a young high school or grade school student while he is in classthat he and other gays and lesbians are shameful, and that God disapproves ofhim, is not simply ‘unpleasant and offensive.’ It strikes at thevery core of the young student’s dignity andself-worth.”
The opinion went on to say that schooladministrators” prohibition of the anti-gay T-shirt was “consistentwith Tinker‘s protection of theright of individual students ‘to be secure and to be letalone.'”
Five judges supported Harper’s request foran en banc hearing, and in a dissent they said by not rehearing the case, thecourt was permitting the district to engage in viewpointdiscrimination.
“Harper’s shirt was undoubtedlyunpleasant and offensive to some students, but
Tinker does not permit schooladministrators to ban speech on the basis of “a mere desire to avoid thediscomfort and unpleasantness that always accompany an unpopularviewpoint,” the dissent read.
Robert Tyler, Harper’slawyer, could not immediately be reached for comment Tuesday.
Harper was asophomore in April 2004 when he wore the controversial T-shirt in response to aGay-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, butwas not suspended.
He responded by filing a lawsuit against schooladministrators, claiming they had violated his First Amendment rights to freedomof speech and religion. A federal district court initially upheld Harper’sFirst 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 90days.