Student punished for wearing anti-gay T-shirt appeals to 9th Circuit

CALIFORNIA — Attorneys for a student who was punishedby Poway High School officials for wearing an anti-gay T-shirt to school areasking a federal appeals court to declare unconstitutional a school policyagainst offensive speech under which the student was punished.

The Alliance Defense Fund and Advocates for Faith and Freedom on March 25filed their opening brief with the 9th U.S. Circuit Court of Appeals.

In February a federal district judge ruled for a second time that TylerChase Harper’s freedom of speech and free exercise of religion rights werenot violated when administrators punished him for wearing the T-shirt during the2004 Day of Silence observation at the high school. The Day of Silence is anannual event to protest harassment of lesbian, gay, bisexual and transgenderedstudents.

Tim Chandler, an ADF attorney for the Harpers, said the previous case didnot consider the school district’s policies, but focused only onTyler’s T-shirt.

“The policies are incredibly broad and target any speech that’snegative or offensive,” he said. “The bottom line is studentsdon’t sacrifice their free speech rights on campus. We’re confidentthat the court will not look favorably on these policies.”

Harper first filed suit in June 2004 and asked the district court for aninjunction to allow him to wear the T-shirt while the case proceeded. Both theU.S. district court and the 9th Circuit denied the injunction. During this timeHarper’s sister, Kelsie, was added as a plaintiff in the case.

In January 2007, before the U.S. Supreme Court ruled on Harper’sinjunction request, the district court ruled against Harper’s FirstAmendment claims, saying the school’s actions were justified becauseadministrators were protecting gay students from harassment. Two months later,the U.S. Supreme Court said it could not rule on the injunction because thedistrict court already ruled on the merits of the case. But it vacated the 9thCircuit’s injunction denial. The district court agreed to reconsider thecase but again ruled against the Harpers.

In their latest appeal, the Harpers say the school’s policies banninghate speech do not “respect the broader free speech rights students enjoyunder California law. Rather, they utilize broadly subjective standards thatsweep in a broad array of protected expression without adequate standards toprevent arbitrary or discriminatory enforcement. As such, the policies arefacially unconstitutional and violate the law.”

Chandler said there have been no talks of a settlement. The school districthas until the end of April to file a response.

Jack Sleeth, Poway Unified School District attorney, declined to comment onthe appeal.