Supreme Court vacates lower court’s ruling in anti-gay T-shirt case

WASHINGTON, D.C. — A controversial federal appeals court ruling was vacated March 5 by an 8-1 U.S. Supreme Court vote in the case of a student who was censored by school officials for wearing a T-shirt with an anti-gay message.

In April 2004, Tyler Chase Harper, then a sophomore at Poway High School in Poway, Calif., wore a T-shirt that said, “Be ashamed, our school embraced what God has condemned” on the front and “Homosexuality is shameful ‘Romans 1:27’ ” on the back. Harper was asked to remove his shirt and after refusing, spent the remainder of the day in a school conference room.

Harper filed suit in June 2004 against the school, stating that his First Amendment speech and religious rights were violated. He asked for a preliminary injunction on the school’s dress code policy so he would no longer be prohibited from wearing his T-shirt. A federal district court denied that injunction, leading to Harper’s appeal to the Ninth U.S. Circuit Court of Appeals, where the injunction was also denied.

The federal appeals ruling also stated that “Harper failed to demonstrate that he will likely prevail on the merits of his free speech, free exercise of religion, or establishment of religion claims. In fact, such future success on Harper’s part is highly unlikely, given the legal principles discussed in this opinion.”

Harper made a final appeal to the U.S. Supreme Court to hear the injunction in October 2006.

As that request was pending, the federal district court reviewed Harper’s claims for a permanent injunction and a declaration that his First Amendment rights were violated, and ruled in January the claims were moot because he was no longer a high school student, having graduated in June 2006. The court did consider the claims of Harper’s younger sister, Kelsie, who was added to the case in November 2004, but ruled in favor of the school district.

Because the federal district court ruled all First Amendment claims by Harper were moot, the Supreme Court ordered the Ninth Circuit’s decision on the preliminary injunction request vacated.

However, Harper and his sister, who is still a student at the school, can appeal the district court’s ruling on their First Amendment claims to the Ninth U.S. Circuit Court of Appeals.

Jack Sleeth, the school district’s attorney, said he is not concerned about the Supreme Court decision because it was an “esoteric issue,” according to the North County Times, a San Diego County newspaper.

“This does nothing to us because we’re going up to the Ninth Circuit on the real case,” Sleeth said, according to the Times.

Sleeth was unavailable for comment before press time.

Kevin Theriot, Harper’s attorney, said he is pleased with the U.S. Supreme Court’s ruling, which offers a “clean slate to litigate the most important parts of the case.” Theriot is an attorney with the Alliance Defense Fund, a Christian civil rights organization.

“It’ll be interesting to see if the court will expound upon student speech and work to protect [it],” Theriot said. “We’re seeing more and more the encroachment of student speech by those who are censors, who don’t want students to hear every side of the issue, just the politically correct side of the aisle.”

Theriot said that his organization has requested the federal district court to reconsider its January ruling in light of the recent decision by the U.S. Supreme Court, and has filed an appeal to the Ninth U.S. Circuit Court of Appeals for the Harpers’ First Amendment claims.

By Erica Hudock, SPLC staff writer

  • Appeals court rejects request to rehear anti-gay T-shirt case News Flash, 8/2/2006
  • Student’s anti-gay T-shirt not protected by First Amendment, court rules News Flash, 4/21/2006