CALIFORNIA — A federal judge on Feb. 11 ruled for thesecond time that the Poway Unified School District did not violate a formerstudent’s rights to freedom of speech and free exercise of religion whenofficials punished him for wearing an anti-gay T-shirt.
In April 2004, TylerChase Harper was detained for wearing a T-shirt to Poway High School that said, “Homosexuality is shameful. Romans 1:27” on the front and “Beashamed. Our school has embraced what God has condemned” on the back.Harper wore the shirt the same day a student group observed a “Day ofSilence,” an annual event that fights harassment of homosexuals.
Harper filed suit in June 2004, and the district court denied an injunctionthat would have allowed him to wear the shirt while the trial proceeded. InNovember 2005, Harper’s sister, Kelsie, was added to the case, claimingher rights were also violated because she intended to wear the anti-gay shirtduring the April 2006 “Day of Silence.” The Harpers appealed thedistrict court’s denial of the injunction to the 9th U.S. Circuit Court ofAppeals, which ruled against the Harpers in April 2006. The Harpers appealedagain in October 2006, asking the U.S. Supreme Court to overturn the 9thCircuit.
While the Harpers’ injunction request was pending, thedistrict court reviewed the suit’s claims that Poway’s actionsviolated the First Amendment. In January 2007, the district court did not ruleon the substance of Tyler Harper’s claims, finding they were moot becausehe had graduated. But the court ruled against Kelsie on the substance of herclaims, saying the school’s actions were justified by the need to protectgay students from harassment.
Two months later, the Supreme Court ruledthat it could no longer consider the Harpers’ injunction request becausethe district court already ruled on the merits of the case. But it vacated the9th Circuit’s opinion denying the injunction so that Kelsie Harper couldappeal the district court decision on her First Amendment claims. Harper thenasked the district court to reconsider its January ruling.
In lastweek’s decision, the district court reaffirmed its previous ruling,finding that Tyler Harper’s T-shirt infringed on other students’
rights, and thus officials were justified in barring students from wearingsimilar items.
In Tinker v. Des Moines Independent Community SchoolDistrict, the Supreme Court ruled that school officials may not punish orprohibit student speech unless they can clearly demonstrate that it will resultin a material and substantial disruption of normal school activities or invadethe rights of others.
The district court, echoing the 9th Circuit’sreasoning in its now-vacated opinion, concluded that because “the recorddemonstrates that Harper’s speech intruded upon the rights of otherstudents, the school’s restriction is permissible underTinker.”
“In this court’s view, a school’sinterest in protecting homosexual students from harassment is a legitimatepedagogical concern that allows a school to restrict speech expressing damagingstatements about sexual orientation and limiting students to expressing theirviews in a positive manner,” U.S. District Judge John Houston wrote in hisFeb. 11 opinion.
Tim Chandler, an Alliance Defense Fund attorney for KelsieHarper, said the Harpers are still determining their next step.
“Thebiggest problem with the opinion is that it creates a double-standard,” hesaid. “Schools are telling Christians that they can’t defend theirbeliefs on campus because they might be offensive to other students, but otherstudents are allowed to share beliefs on campus that are offensive to Christianstudents.”
Public schools, Chandler said, are designed to help studentsdeal with ideas they might not agree with, and thus should not censor one sideof a debate.
“I think it’s an issue of being politically correctand trying to give extra protection to students they see as being possible morevulnerable than other students,” he said. “But the First Amendmentdoes not provide you a right to not be offended.”
If the Harpers decideto appeal, the next round of briefs would be due in March, hesaid.
“We’ve been up and down a lot with this [case] and you keeppushing it, and hope that [the court] can come around,” Chandlersaid.
Calls to Jack Sleeth, attorney for Poway Unified School District, werenot returned by Thursday afternoon.